Analysis: Brazil’s ex-minister Pazuello could be subject to criminal and civil liability after CPI testimony

RIO DE JANEIRO, BRAZIL – Lawsuits against Bolsonaro would only be brought should the Attorney General’s Office find the president liable for his actions and authorization is requested from the Chamber of Deputies, where the government holds a parliamentary majority.

Ex-minister of health Eduardo Pazuello could could be prosecuted in at least three lawsuits, two criminal and one civil over his testimony to the Pandemic CPI (investigative committee).

In two days of testimony, Pazuello claimed responsibility for virtually all the decisions made in the fight against the coronavirus and, by sparing President Jair Bolsonaro, he paved the way to be prosecuted for malfeasance, perjury, crimes against public health, and administrative misconduct, according to attorneys consulted by El Pais.

Bringing these suits against the ex-minister would not be the CPI senators’ task, but that of Federal Prosecutor General (PGR) Augusto Aras and other members of the Federal Prosecutor’s Office. Prosecuting him does not necessarily depend on the conclusion of the investigation by legislators.

The lodging of such lawsuits is still uncertain, considering that 15 months after the beginning of the Covid-19 pandemic, PGR Aras and his staff have not yet pursued any kind of accountability from the federal government, despite the 441,000 deaths from the disease. However, Aras has requested an investigation into Pazuello’s alleged omission in the Manaus crisis.

Malfeasance is defined when a public official unduly delays or fails to perform an official act, or performs it against the law’s explicit provision. It is made a crime by Article 319 of the Penal Code and is punishable by up to 1 year imprisonment.

“If it is proven that the government, for ideological reasons, focused on herd immunity, focused on the disinformation campaign against the use of masks or social distancing, this would prove that it acted against what the law states,” says attorney Guilherme Amorim, professor of the master’s degree in constitutional law program at Uninove.

The crime against public health could be classified under Article 268 of the Penal Code, which deals with the violation of preventive health measures. According to this provision, it would be necessary to prove that the offender had the goal of violating determinations that aimed to prevent the introduction or spread of a contagious disease. The penalty is also 1 year imprisonment.

In the civil area, according to professor Amorim, the general could be subject to the law of administrative misconduct provided there is evidence of the extent to which his actions caused damage, not only from a financial standpoint, but also in terms of serving the primary public interest. “In a pandemic, what is the first public interest that should be observed? It is the population’s health, it is life,” said the expert.

Perjury, which is when a person lies in a deposition in court, is applicable to testmony at a CPI. In Brazil, it is a crime, under Article 342 of the Penal Code, with a penalty of 2 to 4 years imprisonment. During Thursday’s session, senators signaled that they will forward the transcript of Pazuello’s testimony to the Prosecutor’s Office for prosecutors to determine whether or not he committed this specific crime. The same measure was taken last week, when ex-communications secretary Fábio Wajngarten allegedly lied to the CPI.

In practice, however, hardly anything will be done at this point against the ex-minister or his former boss, President Bolsonaro. The president could only be investigated for common crimes if 342 of the 513 members of the Chamber of Deputies authorize it. This is a situation similar to that faced by ex-president Michel Temer (MDB) in 2017, when he managed to bar the opening of two cases against him. Without authorization, any possible common crime committed by the president could only be investigated after he leaves the government.

The political measure against Bolsonaro, then, would be proceedings in Congress accusing him of a  “crime of accountability” – the technical term justifying impeachment. This step would have only minimal chances of succeeding for the same reason: the president still enjoys parliamentary support, particularly that of Chamber president Arthur Lira (PP-AL), the one in charge of initiating any processing in the Legislature.

“Brazilian institutions took a year to react, including the National Congress, which only now managed to establish a CPI, and the Prosecutor General’s Office, which omitted itself from the investigation and only focused on investigating the corruption cases in the states in the transfer of resources to fight Covid-19,” said Fábio de Sá e Silva, professor of Brazilian studies at the University of Oklahoma, in the United States.

According to the scholar, the Prosecutor General’s Office decided to let the Brazilian Executive “loose.” “It is clear that Brazil’s problem was not corruption, it was mismanagement and inability to plan and coordinate the various bodies. In addition to denialism in relation to restrictive measures, vaccines, and support for ineffective drugs against the coronavirus,” he said.

The Prosecutor General’s Office’s omission of was something expected by political circles in Brasilia, where PGR Aras is perceived as a supporter of President Bolsonaro. Aras is one of the candidates to occupy the next vacancy in the Supreme Court, which will open in July with the retirement of Justice Marco Aurélio Mello. “It seems that the Prosecutor General has acted very politically and not very functionally,” says attorney Amorim.

CPI’s next steps

Although, so far, there is more suggestions of actual crimes than hard evidence, it is still early to say that the Pandemic CPI has presented little or nothing, as claimed by the Bolsonarist supporters. “We have seen several contradictions among deponents. From now on, there may be confrontations and analysis of the documentation that has been presented, in addition to other steps. There is still much to happen,” says Sá e Silva.

Of the eight deponents in the CPI so far, at least four have presented testimony contradicted by what has been officially documented or made in public statements: Pazuello; ex-foreign minister Ernesto Araújo; ex-communication secretary Fábio Wajngarten; and health minister Marcelo Queiroga. Some of them may be called for further testimony, perhaps even face to face with Pfizer’s president in Latin America, Carlos Murillo, who in a previous hearing said that the Government ignored his company’s proposals to sell vaccines to Brazil.

Something that was noticed throughout the depositions was the change in tone of the CPI rapporteur, Senator Renan Calheiros (MDB-AL). When ex-secretary Wajngarten omitted information, he threatened him with arrest for perjury. Since then, he has not followed suit with either Araújo or Pazuello, despite the fact that they have presented several distorted versions.

“When we watch as citizens and we see some narratives that attack our perception of things and see that what is being said doesn’t correspond to what occurred, it creates a sense of indignation or despair,” says Professor Sá e Silva.

However, he says, it would not be with a spectacular arrest in flagrante delicto in a CPI that justice will be served. “The important thing is to investigate and take the appropriate measures. You can’t be disappointed because someone wasn’t arrested. Sometimes, making an arrest in the middle of a CPI session only causes turmoil,” he says.

After Pazuello, it will be the committee’s turn to hear the Work and Health Education Management Secretary of the Ministry of Health, Mayra Pinheiro, nicknamed “captain chloroquine” for repeatedly advocating the use of the ineffective drug against coronavirus. Her testimony was initially scheduled for Thursday, but was rescheduled for next Tuesday, May 25.

Source: El Pais