Opinion by Michael Royster
RIO DE JANEIRO, BRAZIL – Monday night, Judge Sergio Moro was interviewed on TV Cultura, and explained why he fears the upcoming STF decision on the constitutionality of sentencing after convictions have been affirmed by a federal Appellate Court.
He fears impunity, Italian style.
Judge Moro has always acknowledged he based his Lava Jato crusade on Italy’s “Mani pulite” (“clean hands”) campaign which made headlines in the 1990’s. He also knows that, two decades later, rich and powerful corrupt offenders in Italy, still continue to be above the law.
He knows that the reasons for this impunity are embedded in Italy’s constitution and criminal code — and he knows the Brazilian constitution and criminal code contain almost identical provisions.
The Curmudgeon has discussed at length the constitutional provision called by its supporters “presumption of innocence” whose plain language would seem to prohibit incarceration until the case has become final and all appeals have been exhausted.
The other provision is contained in the Criminal Code, and concerns what we, in English, know as the “statute of limitations”, which in Portuguese is “prescrição”. Briefly put, after the passage of enough time, the State forfeits its right to incarcerate a criminal.
In almost all countries, the statute of limitations period only runs until a criminal case is formally filed. After sentencing, there is no limitations period—defendants customarily go to jail and file their appeals.
In Brazil and Italy, however, the rule is that the limitations period continues to run even after sentencing, until the case has become final and all appeals have been exhausted. In other words, if the statutory limitations period is twelve years, the State has twelve years after the commission of the crime in which to obtain a final judgment.
What this means in practice is that, if convicted defendants can draw out their appeals for a long enough period—that of “prescrição”—their sentences cannot be enforced. Moreover, if the new STF majority prevails, they will not have served any time in jail. That equates to impunity.
Judge Moro knows that in almost two out of every three “Mani pulite” convictions, the defendants were never incarcerated, precisely by reason of “prescrizione” — the limitations period had run out because of numerous appeals, which the Italian court system was incapable of handling in a timely fashion.
Brazil’s penal court system has three separate appellate levels — one more than in Italy. At all of these levels, there is a super-abundance of appeals available to defendants from any adverse order or decision. All the appellate courts are overburdened and understaffed and are incapable of dealing with the appeals in a timely fashion.
Judge Moro knows that the rich and powerful criminals he and his fellow judges have convicted will use every possible appeal available under Brazilian law. He fears that will result in impunity for most offenders, as it did in Italy. Therefore, he is striving to ensure that the legacy of Lava-Jato will be not be similar to that of “Mani pulite”.
The Curmudgeon wishes him luck in his endeavors, but fears that a majority of the STF will not agree with him.