- Special protocols for the prosecution of elected officials are used to protect them from trivial or politically motivated proceedings, but they can help them avoid accountability for illegal actions.
- Often, their trials are delayed until the charges are dismissed due to technicalities, to the statute of limitations, or because they have been acquitted by politically influenced judges.
- This type of constitutional impunity has been common in Brazil, Bolivia, and Venezuela, from the Lava Jato case to Hugo Chavez’s legal warfare on his political opponents.
Brazil and the Andean Republics all have constitutional provisions establishing special protocols for the prosecution of elected officials. These supposedly were conceived to ensure public servants are held accountable for misdeeds, while protecting them from frivolous or politically motivated prosecution. This special status, however, has created a two-tiered justice system that protects politicians from the consequences of their malfeasance, because their trials are usually delayed until charges are dismissed on technicalities, because of the statute of limitations, or because they have been acquitted by magistrates corrupted by the political process.
The most notorious is Brazil’s ‘Foro Privilegiado’, which stipulates that only the Tribunal Supremo Federal (TSF) has the authority to preside over a criminal trial for the president, vice president, members of Congress and other high-level appointed officials, while governors, judges and other elected officials enjoy similar, if less conspicuous, forms of legal shelter. These constitutional provisions apply to more than 22,000 authorities, a staggering number that separates their potential prosecution from the criminal justice system that applies to everybody else.
Although this special treatment might place the trial in a tribunal with a more experienced judge or one selected by a more stringent ethical review, it also removes the case from the jurisdiction of first-level courts, which are designed (and staffed) to investigate and prosecute crimes. Instead, they are loaded onto the calendars of appellate courts whose primary task is to rule on questions of jurisprudence, while inserting them into a judicial ecosystem exposed to the political process.
Elected officials are more likely to be tried by an unbiased jurist in a lower court, where appointments are controlled by the Conselho Nacional de Justiça (CNJ), whereas judges who serve on a superior (TSF, STJ) or appellate (TRF) courts are nominated by the president and ratified by the Senate. With very few exceptions, appellate judges are highly qualified lawyers with decades of experience; nonetheless, many have attained their exalted position by labouring within the political establishment at some point in their career.
Policies designed to combat political corruption became a campaign priority after the return to democracy, particularly after the high-profile scandals of the 1990s. Nevertheless, a survey in 2016 showed the TSF did not fully assume its constitutional responsibility as a criminal court for the powerful. Between 2011 and 2015, the high court considered 404 criminal actions; of these, 68 per cent were dismissed on technicalities, such as a lack of evidence or because of the statute of limitations, or were referred to a lower jurisdiction when the accused official left office. Only five per cent terminated in negative consequences for the accused, usually via some sort of plea bargain. Just two individuals were convicted of a crime.
The unfairness inherent in the Foro Privilegiado was laid bare by the Lava Jato scandal when businesspeople were tried by a district court specializing in financial crimes (13ª Vara Federal de Curitiba), while senators, deputies and cabinet ministers were tried by the TSF. The differential treatment was highlighted by the aggressive tactics employed by the judge overseeing the case (Sergio Moro), who jailed defendants as a means of coercion and, in the process, extracted testimony incriminating elected officials and cabinet ministers. In contrast, the presiding judge of the TSF (Edson Fachin) allowed the accused politicians to defend themselves while free on personal recognisance.
Despite the disparate treatment, dozens of prominent politicians were prosecuted; approximately thirty per cent were defeated in the next election and several prominent figures were convicted and sent to jail. Most, however, mounted defence strategies based on delay and denial. Eventually, the prosecutors in Curitiba targeted Inácio Lula da Silva, who no longer enjoyed the protection of the Foro Privilegiado. In a highly controversial decision, Sergio Moro found Lula guilty of bribery and money laundering and sentenced the ex-president to 9 years in prison.
The anger and disgust of the political elite led, in part, to the election of Jair Bolsonaro who recruited Sergio Moro as his first justice minister in 2019. The same year, however, investigative journalists revealed that Moro and the team of prosecutors had inappropriately coordinated their strategies and tactics, which an appellate court ruled infringed upon Lula’s right to an impartial process. Lula’s defence team appealed his conviction, which was overturned in 2021 by the Tribunal Supremo Federal.
That ruling created a precedent, which motivated a phalanx of defence lawyers to undermine all the investigative work of the prosecutors, who had compiled tens of thousands of pages of evidence based on confessions, financial records and clandestine recordings. These arguments have been accepted by appellate courts, which have overturned or dismissed multiple cases that implicated senators, deputies and cabinet ministers; the TSF upheld those dismissals in September 2023. The change in judicial outcome does not mean the defendants are innocent; rather, it signals that the proceedings were vitiated by judicial malpractice. The final ruling by the TSF, which was written by a justice appointed to that court by Lula, places the prosecutors and judges in Curitiba in legal jeopardy – except Sergio Moro, who now enjoys Foro Privilegiado as the newly elected senator from Paraná.
Hopefully, the Lava Jato scandal will be viewed as transformative episode that eliminated the corporate sector’s use of contract fraud as a standard business practice. It is much less likely, however, to end the endemic corruption that plagues Brazil’s political system. because that system has once again perpetuated impunity for the political elite.
The weaponisation of the justice system
What started as a righteous campaign to root out corruption eventually was undone by allegations that Sergio Moro used the judicial process to promote his own political career. The convictions that flowed from the Lava Jato investigations – and their subsequent reversals – show that a corrupt judicial system is inherently susceptible to political actors who use the law to obtain and retain power.
Venezuela provides the most blatant example of the calamity that can occur when the judicial system is weaponised to pervert the political system. Hugo Chávez and his successors have mismanaged the national economy of what was once the most prosperous nation in South America, causing approximately seven million citizens to flee the country. Despite their obvious incompetence and moral depravity, they have succeeded politically because they eliminated all political opposition via legal warfare (lawfare). They were able to do this because the judicial system had been thoroughly corrupted by decades of bribery and extortion. A judge who has sold his honour for a monetary reward is unlikely to resist extortion from a ruthless political machine that threatens his livelihood.
Although no other country has fallen into the governance trap that plagues Venezuela, Bolivia has come perilously close. Evo Morales consolidated power between 2009 and 2019, partly by using the judicial system to intimidate the political opposition. Morales and his coterie of political operators easily subjugated crooked judicial authorities and, after winning a legislative super majority, he staffed the courts with loyalists subservient to the governing party.
That legacy continues to dominate Bolivian politics, despite an electoral failure and a failed putsch that marginalised Morales. Ironically, his missteps empowered a competing clique within his own party that has coopted these authoritarian tactics perfected in Cuba, Nicaragua and Venezuela.
Other examples of the use of the judicial system to attack political opponents include President Pedro Castillo in Peru (2023) and Suriname in 2020, when the government criminalised good-faith policy decisions related to the Covid pandemic that had been made by the preceding administration. Judicial corruption plagues all jurisdictions of the Pan Amazon, and law-and-order policies to combat illegal deforestation, timber theft, land grabbing and wildcat mining are unlikely to succeed until there is genuine reform of judicial systems at the national level.
Featured image: The amendment to the organized crime law is criticized by prosecutors. In the image, nine clandestine airstrips detected by a Mongabay Latam investigation that affect the territories of two indigenous communities in the central jungle of Peru. Satellite image: Earth Genome / Mongabay Latam.
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