Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

NOTE FROM THE FORUM OF JUSTICE IN RIO GRANDE DO SUL ABOUT THE DIALOGUE BETWEEN MEMBERS OF OPERATION WASH JET AND THEN THE COMPETENT JUDGE TO JUDGE THE ACTIONS ARISING

June 18th, 2019

The Justice Forum (FJ) presents itself as an open space for social organizations and movements, academic sectors, students, as well as public agents of the justice system and other actors who are interested in discussing justice as a public service. It aims to collectively develop evaluations, strategies and proposals that advance the construction of an integrative model of justice, based on policies for the redistribution of resources and goods intertwined with the recognition of specificities, based on the incorporation of popular participation dynamics (https://www.forumjustica.com.br/sobre-o-forum-justica/).

Therefore, transparency in the actions and relationships of the agents that make up the institutions of the justice system is of utmost importance. The dialogues referenced here show that this was not a predicate of this “Operation”, an even inappropriate term, according to our legal system for lawsuits. The lack of transparency also prevents social participation, an important element for these spaces to really reach their scope, having greater effectiveness in their actions, in solving conflicts and historical and structuring social problems of our unequal society.

The National Council of Justice (CNJ) and the National Council of the Public Prosecution Service (CNMP) are undoubtedly advances in the search for social control consistent with the democratic rule of law. However, its eminently corporate hermetic profile greatly limits this claim. These leaks from the internal dialogues of the so-called “Operation Car Wash” will be an opportunity to demonstrate that they can overcome this obstacle, despite their compositions without near social participation. Unfortunately, this fear of society, the distancing of the public that should be involved, is common to many institutions and organs of the justice system.[1].

It is the understanding of the members of the Justice Forum in Rio Grande do Sul (FJ-RS) that the content of the leaked conversations of the members of the Lava Jato causes nullity to the processes judged by it and that the conduct of the public agents involved should be ascertained. The conversations indicate that the judge presided over the investigation, affecting the independence of institutions and private powers, and the judge of suspicion, as it would be in the part of the so-called “fight against corruption”. It would not be an exempt subject. The Code of Criminal Procedure states that “the judge shall act as a suspect, and if he does not do so, he may be refused by either party if he has advised either party (Article 259, IV). The recordings feature the magistrate discussing what would be the best prosecution strategies in the case file and with the media, indicating witnesses among other functional violations. It is also clear that the judge had no respect and consideration for defense lawyers, as required by Article 6 of Law No. 8.906 / 1994.

The Code of Ethics of the National Magistracy is very clear not to allow this kind of relationship between the judge and prosecutor, as it would also be forbidden if it were between the first and the lawyers:

Art. 8 The impartial magistrate is one who seeks in the evidence the truth of the facts, with objectivity and foundation, maintaining throughout the process an equivalent distance from the parties, and avoids all kinds of behavior that may reflect favoritism, predisposition or prejudice. .

Promoting public prosecution is the exclusive responsibility of the Public Prosecution Service, and it is not for the judge to interfere precisely to ensure its impartiality. This competence is determined by the Federal Constitution (article 129, I) and the Organic Law of the Public Prosecution Service (article 6º, V). It is also noticed that the independence of the institution was shaken, as its actions were directed by an external agent. Serious is also the unfolding of these violations for Brazilian democracy, interfering with the outcome of the last elections.

This should not have been reached, as it shows that the crisis of correct functioning, which comes from the institutions, has been deep for a long time, naturalizing violating devices. However, it can be an opportunity for reflection, change of conduct, and concretely to guarantee in these spaces transparency, control and social participation. The administration of these institutions in a democracy must have the participation of its people, just as their composition cannot predominantly come from a few social segments, if the country has such a plural feature.

[1] . An example of this is the Ombudsman's Office of the Public Defender's Office, with a format prescribed since 2009 by the Organic Law, but which in most states is not met and has not yet been implemented. Here in Rio Grande do Sul, although there is space, the administration interferes in choosing the triple list of civil society inappropriately.