RIO DE JANEIRO, BRAZIL – The survey conducted by the World Justice Project (WJP), a U.S.-based organization comprising renowned scholars and former officials of several nationalities, ranked Brazil 77th in 2021, among 139 countries assessed.
The “Rule of Law Index” evaluates how far laws and institutions limit the power of the state and its agents over society, and if the state fulfills its basic duties towards the population.
This is measured by eight factors:
- Restrictions on the powers of the state;
- Absence of corruption;
- Transparency and openness to citizen participation;
- Respect for fundamental human rights;
- Order and security;
- Enforcement of regulations;
- Effective Civil Justice to resolve conflicts between people and businesses;
- Effective Criminal Justice to punish those who commit crimes against society.
Considering all these factors combined, Brazil has been deteriorating. In a score ranging from 0 to 1, it dropped from 0.55 in 2017 to 0.50 in 2021 – down each year. And despite holding an intermediate position in the global ranking, Brazil leaves much to be desired in two specific factors: in the fight against corruption, ranking 80th out of 139 countries, with a score of 0.43; and in the effectiveness of criminal justice, ranking 112th, with a score of 0.33. In these two areas, Brazil’s scores have been better in the recent past.
The study’s scores are calculated according to two evaluation sources: a survey with 1,000 respondents in each country, conducted by a reference institute, to understand the perception of the general population; and in addition to this, qualified questionnaires, answered by legal professionals, specialists and academics from each country.
“The index measures adherence to the rule of law by looking at policy results, how people access courts or whether crime is effectively controlled. This contrasts with efforts that focus on what is written in the law, or the institutional means by which a society can seek to achieve these outcomes,” WJP says.
In 2017, at the height of Lava Jato, Brazil reached its highest anti-corruption score, 0.47. It has been dropping since then, and currently ranks close but behind countries like Angola, Myanmar, the Philippines, Bulgaria, Suriname, and Algeria, for instance. In this category, the best rated countries are Denmark (0.95), Norway (0.94), and Singapore (0.91). At the bottom of the table are Congo (0.16), Cambodia (0.23), and Cameroon (0.25).
The index measures the prevalence of bribery, kickbacks, and other incentives in the provision of public services and the enforcement of regulations. It also measures whether government procurement and public works contracts are awarded through an open and competitive tender process, and if government officials at several levels of the Executive abstain from embezzling public funds.
These forms of corruption are examined with respect to officials and civil servants in the executive, judicial, and legislative branches, and also in the armed forces and police. Brazil is ranked even worse in the world with respect to undue advantage of public officials in government (101st position, score 0.38) and legislators (138th position, the penultimate, with a score of 0.06, behind only Guatemala).
According to prosecutor Vladimir Aras, former international secretary for the Prosecutor General’s Office, the scores show that Brazil is experiencing a phenomenon even more serious than the “systemic” corruption identified in Lava Jato – the term designates a type of corruption in which bribes are the rule of the game in public procurement, rather than the exception.
However, Aras believes that the country is in a phase that scholars call “state capture.” “It is more serious and much worse than systemic or endemic corruption, because it leads to a commensalism between a certain political power and a certain economic power and they bend the system for their own good. It is what some authors also call exclusivist corruption,” the prosecutor says.
To further clarify the difference, he offers examples. “An ordinary citizen, whether rich or poor, can – although he shouldn’t – bribe a police officer, all he has to do is have R$100 or R$200 in his wallet. Now, think of a system where there is a reserved, VIP room where only those invited to sit at a table can enter. If anyone knocks on the door they can’t get in. But certain economically or politically powerful people not only get in when they want to, but are invited into a scheme that will structure the system and will lead the state as they please.”
“There’s no exchange of this for that, as established in the Criminal Code, it’s a club that rules, regardless of the fact that there is a give-and-take, there will be facilities provided by this club that will maintain an exclusive scheme that makes Brazil a poor and backward country in the provision of public policies,” he adds. He says that in this setting, rules or regulations can be designed to favor certain groups, the VIP guests.
The consequences of such a system are indicated in WJP’s report. “Picture an investor looking to invest overseas. He would probably think twice before investing in a country where corruption is rampant, property rights are ill-defined, and contracts are difficult to enforce. Inequitable enforcement of regulations, corruption, insecure property rights, and ineffective means of resolving disputes undermine business legitimacy and deter domestic and foreign investment,” the organization warns.
INEFFECTIVE CRIMINAL JUSTICE
In the “Rule of Law Index,” the effectiveness of Criminal Justice – in which Brazil ranks 112th, with a score of 0.33 – is defined by the ability to investigate, punish and prevent crimes, but its quality is also measured by a range of other sub-factors.
It takes into account the impartiality of judges, for instance, if they do not discriminate against the investigated based on socioeconomic criteria, by gender, ethnicity, religion, nationality or even sexual orientation. It also measures if magistrates, prosecutors and police officers are resistant to bribes paid by criminal organizations.
There is a sub-factor to determine if the justice system as a whole is free from government influence. And finally, there is another that evaluates if due legal process is respected, particularly with respect to the rights of the accused.
In relation to the effectiveness of investigations, which measures if the police, investigators and prosecutors have adequate resources, are free from corruption, and fulfill their duties competently, to arrest and prosecute criminals, Brazil ranks 117th, with a score of 0.28.
In the sub-factor effectiveness of the process for punishment, which evaluates if criminals are effectively prosecuted and punished, and if criminal judges are competent and produce quick decisions, the Brazilian score is worse: it ranks 133rd, with a score of 0.25. In crime prevention, Brazil is also among the last in the world, ranking 131st, with a score of 0.17.
In impartiality, it is in the penultimate position, with a score of 0.14. And in relation to respect for the rights of the investigated, Brazil ranks 119th, with a score of 0.34.
There are examples to illustrate these figures. Brazil has faced 10 convictions from the Inter-American Court of Human Rights and in 9 of these cases because the criminal system does not work properly.
In the latest conviction, in November last year, Brazil was found guilty of discrimination in access to justice, for not effectively investigating and punishing feminicides, and for the improper application of parliamentary immunity.
The case involves the 1998 murder of Márcia Barbosa de Souza, a low-income woman killed by asphyxiation at the age of 20. Former state deputy Aércio Pereira de Lima was only prosecuted after the end of his term and sentenced only in 2007 to 16 years in prison, but he was never incarcerated. He died months later of a heart attack.
In the ruling, the Court found that the criminal investigation model in Brazil is deficient, has a cartorial and bureaucratic structure, with a lack of diligence to ascertain crimes.
According to economist Pery Shikida, who has been researching criminals’ motivations for years, these flaws in the system are true incentives for them to continue committing crimes: “After the crime, the investigation leaves much to be desired, which greatly encourages criminality, and even more corruption,” the expert says. “The State must be a credible threat to criminals, but that’s not what is happening. The likelihood of going to prison is very low, and when they do, there’s progression.”
Shikida advocates imprisonment in second instance, the option of agreements not to prosecute upon confession, immediate execution of sentences of those convicted by a jury trial. These are measures proposed in the anti-crime package, but which were rejected by Congress.