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In Dubio Pro Zé?

Screenshot from 2013-10-19 14:13:40

José Dirceu is the victim of a legal lynch mob, his defenders say.

The former chief of staff of President Lula da Silva has been convicted of criminal conspiracy to commit bribery despite the absence of any material evidence of his involvement, as the Attorney-General admitted in his indictment of Dirceu.

With an appeal pending before the Supreme Court, Dirceu has begun to find supporters, among them such ideologically disparate figures as Ives Gandra Martins, who gave a strongly worded interview on the subject to the Folha de S. Paulo on September 22.

The theory of “dominion of the fact” cannot exist simultaneously with the principle of in dubio pro reo. Martins said that in the “payola of the PT” case, the theory, which is no longer even used by German jurists, where it originated, functioned to convict the former chief of staff without any evidence of his guilt. “If I have material proof of the crime, then I have no need for “dominion of the fact.”

Source:  GGN.

Luis Greco, 35, and Alaor Leite, 26, introduced by the Folha as “doctor” and “doctoral candidate” in law at the University of Munich, working under Claus Roxin — they have translated several of his works into Portuguese —  have published an article entitled “Facts and myths of the domínio de fato.”

From fellow glossary enthusiasts, I learn that this “dominion of the fact” theory stems from the German Tatherrschaft — from a phrase denoting “authorship and domination of criminal acts.”

In this article, Greco and Leite destroy the version of the theory engendered by Supreme Court minister Gilmar Mendes.

The article is harsh: “Ever since the “payola of the PT” case, it is nearly impossible to find someone who has not hear of the theory of “dominion over the fact.” Much of what has been said on the matter is not true. Not even its champions, among them members of the Supreme Court, much less its critics — most recently the legal scholar Ives Gandra da Silva Martins — seem to dominate the dominion of the fact.

Perhaps this is because the obvious has been neglected: we should read the source material on the concept, and especially the writings of the theory’s grand architect, the German professor Claus Roxin. Even the experts have misunderstood this work, and the public deserves some clarification.

Roxin’s explanation of the theory is radically opposed to the version sold to the public by the Supreme Court (STF). To the STF, the purpose of “dominion of the fact” is to reach authors or sponsors of crimes whose culpability cannot be established by means of proof. Under this theory, they would be found guilty for the mere presumption that, because of their rank or position, the crimes committed could not possibly have been unknown to them.

Our authors show how Brazilian law treats criminal authorship: “The Penal Code, in Article 29, though it may be found to be compatible with the “dominion of the fact” theory, tends to support a theory that does not even distinguish between author and participant. Everyone who cooperates to commit the crime are deemed to be the authors of that crime.”

The true theory of the dominion of the fact completely contradicts this view: “Under the dominion of the fact theory, the author, beyond cooperating in the fact, must dominate it. Those who cooperate, without domination, are never considered authors. To kill someone is to pull the trigger. Lending them the weapon is to participate in an action that is not killing. In practice, the theory of dominion of the fact does not condemn those who would be found innocent without it. Its application does not facilitate convictions, it makes them more difficult. Whenever it is possible to convict someone under the theory of dominion of the fact, it would be possible to condemn him without it.

When he visited Brazil, Roxin gave an interview in which he rebutted the interpretations given the theory by the STF. Upon his return to Germany he was the target of terrorism by students, possibly incited by a member of the STF who speaks good German. They insinuated that he was suspected of selling verdicts. Unaware of the no holds barred tactics of STF members with strong ties to the media, Roxin put up only a weak defense.

Now, however, his students and translators are bringing the facts to bear. They are scandalized by the presupposition of guilt the theory has been taken to imply: “The theory is not procedural: it does not dispense with evidence  of guilt or authorize the conviction of someone based on a presupposition — contrary to STF minister Rosa Weber when she spoke of a ‘a relative presumption of authorship by superiors.'”

In an act of charity, they avoid mentioning the vote of justice Luiz Fux, who went so far as to affirm that it was incumbent on defendants to demonstrate their innocence.

This is not a dispute between Mendes & Co. and Roxin: It is an attempt to understand the theses that Roxin has developed. His work has obviously been subject to a mystification to which several justices of the STF have succumbed. And the fraudulent nature of this fact grows in proportion to the refusal to hear Roxin explain himself.

How is it possible that an episode of this importance have contaminated the majority of the Court? …

For months, the defense of the Constitution was in the lonely hands of  Ricardo Lewandowski,  the only defender of the legal rder. Lewandowski was harsh during sentencing, and refused to accept a small percentage of the convictions. He used his position, however, to hold on to a measure of dignity, as was later recognized. This was not about convicting or absolving a defendant, but about manipulating the law.

Now, the legal community is gradually returning to the path of legality. Conservative legal minds such as Ives Gandra and Cláudio Lembo have joined their voices to those indignant with the abuses. The reaction of the legal community even provoked an opportune about face by Celso de Mello, who in epic fashion trampled on the law and promoted a public lynching, and then, when the dust settled, in epic fashion scored the lynch mob. The justice is an aficionado of epic spectacle.

Luis Roberto Barroso and Teori Zavaski eventually joined Lewandowski as the court attempted to recompose itself and restore lost dignity. The federal Public Ministry is in responsible hands.

Still, the true story of this episode has yet to be told.