**1. Introduction**

In a 1996 paper written by Bernand Bertossa, who was Attorney General of the Republic and Canton of Geneva at the time, it was highlighted that representative democracy and respect for the decisions of an independent Judiciary prevent (through the dissemination of power and the meticulous control of its exercise) the emergence of a fertile ground for corruption [1]. In Brazil, on the other hand, the internationally known *Operação Lava Jato* (Operation Car Wash) against corruption in politics left democracy in the hands of Jair Bolsonaro, the President of the Republic who bets on the erosion of the Judiciary and the rule of law through attacks toward the Supreme Court and the electronic voting machines that, ironically, elevated him to the highest position of the nation. Consequently, Brazilian soil, which was certainly not infertile to such practices, has been fertilized for sowing the weeds of illegal acts beyond control in recent years.

In fact, President Jair Bolsonaro was elected as a consequence of Operation Car Wash and now—after 4 years of decrease in institutional standards and aware of the electoral polls which indicates his defeat to political rival Luis Inácio Lula da Silva [2]—is trying to delegitimize the very system that elected him in 2018 [3]. As has been increasingly reported, the democratic regime may be at risk in Brazil [4, 5] and the turning point in this direction took place with the instrumentalization of the criminal process to withdraw his main political opponent from the 2018 electoral dispute.

From that premise an important lesson can be extracted, one that most of the advanced democracies have already learned, whether from their own or through foreign experience: a nation's criminal procedure structure is the thermometer of the elements of its Constitution ([6], p. 67). When it comes to corruption—especially the one more directly related to the functioning of the democratic regime, which is corruption within the context of politics, the overlap between the criminal procedure model and the regime is even more intense and arises in an especially latent way. Indeed, the shallow and simplistic discourse of the mass media and punitive agencies in the sense that social ills all derive from the relation between "honest" and "corrupt" stifles the conflicts of interests and ideals that serve as the foundation of real power bases of society ([7], p. 419).

This agenda discourages the political participation of the citizen, who begins to understand (and to belittle) democracy itself as a political regime more susceptible to corrupt practices due to the greater opportunity for an interface between political agents, economic agents, and individuals—although what gains strength when compared to authoritarian regimes is not corruption itself, but its possibility of visibility and dissemination ([7], pp. 419–421). Therefore, it is not surprising, at least under a retrospective lens, that Brazilian democratic institutionality has so rapidly degraded. The analysis of the context, the development, and the surprising and melancholic end of Operation Car Wash, with the bias of its main judge recognized nationally [8] and internationally [9, 10], however, seems to be of extreme value, including and especially for the international community. In this case, Brazil has a lot to teach. By means of bad example.

#### **2. The political context of the Brazilian criminal procedure code**

The Brazilian criminal procedure suffers from serious historical problems. The Brazilian Criminal Procedure Code dates from 1941 and was reportedly inspired by the 1930s Fascist Italy's *Codice Rocco*. Its authoritarian and anti-democratic basis, therefore, is unquestionable, having served not only the *Estado Novo* (New State) dictatorship (1937–1945) but also the civil–military dictatorship (1964–1985). It does not, therefore, serve democracy—but in it, the Criminal Procedure Code continues to pulsate an unsepulcher autoritharism. In Brazil, the Criminal Procedure Code is the most visible (and systematized) instrument of the "eternal fascism" mentioned by Umberto Eco [11].

Felipe Lazzari da Silveira ([12], p. 22) explains that although the Brazilian state has never been a fascist state, in the criminal procedural field, it fully incorporated the rationality created by Mussolini's jurists. Its *leitmotiv* can be summarized, still according to the author ([12], p. 173), as the technicist-fascist criminal procedural rationality created in Italy that consisted of a kind of technique to weaken the limits of state punitive power in order to make the criminal process more pragmatic in fulfilling its new goals established by Mussolini's authoritarian State.

The Brazilian authoritarian and dictatorial culture was reinforced by political and military groups, in addition to expressive intellectuals, such as Oliveira Viana

#### *Perspective Chapter: Corruption and Deterioration of Democracy – The Brazilian Lesson DOI: http://dx.doi.org/10.5772/intechopen.106194*

(1883–1951) and Francisco Campos (1891–1968), the latter did not hesitate to join the forces that articulated the conditions for the 1937 coup, nor in actively participating in the formatting and legal consolidation of both the *Estado Novo* and the civil–military coup that took place less than 30 years later ([13], p. 26, 27). After all, he wrote both the Explanatory Memorandum of the Criminal Procedure Code of 1941 and the Institutional Act no 01, which gave legal form to the civil–military dictatorship of 1964. No wonder Rubem Braga (1913–1990) once said with slight irony that "every time Mr. Francisco Campos lights up, there is a short circuit in democracy" [14].

Although by various means, both Italian fascism and the Brazilian *Estado Novo* codified their criminal legislation outside the Legislative Branch to demonstrate their own political strength: while in Italy there was a punctual transfer of competence to the Executive Branch, in Brazil this displacement became a general rule ([15], p. 155, 156). As Minister of Justice, Francisco Campos understood that liberalism would have to be overcome due to the considerable increase in ideological tensions in Brazilian society and on account of the inability of members of legislative households to rationally examine complex and technical matters ([13], p. 37). The antagonism to parliamentary activity was strong; therefore, the Brazilian government, through the Ministry of Justice, began to use technicality to legislate in favor of social defense based on the argument that the ends justify the means, initiating a legacy that was later widely exploited during the civil–military dictatorship ([15], pp. 165–170).

Francisco Campos was the Brazilian counterpart of Alfredo Rocco, the Minister of Justice of Fascist Italy. Endowed with a strong personality, both jurists, with great diligence, took on this new way of legislating and were responsible for the constitutional reforms that shifted the political regimes of their countries to the authoritarian spectrum ([15], p. 171, 172). In turn, the collaborators of these legislative endeavors were not jurists consecrated by the professorship or by theoretical writings, but practical applicators of Law, which made coexistence with the authoritarian environment possible and without major constraints: not for nothing, the vast majority of Italian jurists and all the Brazilian jurists involved came from the Judiciary and the Public Prosecutor Office ([15], p. 172, 173).

This overlap between technicality and practicality certainly helped to legitimize the new criminal law and criminal procedure before the Brazilian judges and criminal courts. But not only. It helped to spread the new system also to the legal literature, which was uncritically fed back through the jurisprudence made by themselves—after all, many of the authors of legal works on the Criminal Procedure Code of 1941 were also its practical applicators.

As Francisco Campos later highlighted, he and his assistants (recognized jurists, such as Nelson Hungria, Antônio Vieira Braga, Narcélio de Queirós, and Cândido Mendes de Almeida) intended to develop a criminal process that did not make society's right to defend itself a mere illusion and that offered the necessary means to ascertain the "real truth" so that to the judge was granted a wide margin of maneuver for the evidentiary initiative—which did not mean an authorization to decide contrary to the law, but only that the body of evidence could be freely evaluated, including through the search for new evidence when necessary and always in accordance with the interests of the State ([12], p. 189).

In that conception of criminal procedure, the simple fact of being tried by a judge was, in itself, the greatest guarantee against injustice that a defendant could obtain ([12], p. 192). The mere existence of a judge was enough for the criminal process to be understood as a fair and impartial procedure. Hence the difficulty in obtaining recognition of judicial partiality in Brazilian forensic practice, even in Operation Car

Wash—which gave abundant signs of Federal Judge Sérgio Moro's bias to the detriment of Luís Inácio Lula da Silva from the first day and, even so, the Courts (the Regional Federal Court of the 4th Region and the Superior Court of Justice) did not recognize it.

The partiality of Federal Judge Sérgio Moro was not acknowledged until the publication of the series of articles by the Intercept Brazil containing the messages he exchanged, via Telegram app, with one of the Federal Prosecutors responsible for Operation Car Wash [16]. The content of the messages, however, was not formally considered by the Federal Supreme Court when it came to recognizing the judicial bias of Federal Judge Sérgio Moro [17], which demonstrates that the exterior signs were sufficient to conclude in those terms (although until then those outside marks had not yet been declared). Not even the authoritarian matrix of the Brazilian criminal process was able to deny the judicial partiality that came to the eyes of Brazil and the world with the series of reports known as *Vaza Jato* (Car Wash Leaks).

### **3. The Brazilian criminal procedure's inquisitorialism**

Both in Italy and Brazil, the criminal procedural models were orchestrated with the objective of legitimizing the neutralization of fundamental guarantees, and this structure continued to guide legal literature, jurisprudence, and legislative reforms even after the end of the authoritarian regimes that promoted them: Italians only forsook it in 1988, with a new Code of Criminal Procedure; Brazilians, however, continue with inquisitorialism to this day ([12], p. 191).

Despite the legislative reforms carried out with the alleged aim of democratizing the Brazilian criminal procedure to adapt it to the Federal Constitution of 1988, it is undoubted that they were all late and insufficient to produce any significant change to the spirit of the Criminal Procedure Code of 1941 and that, despite them, jurisprudence has developed in the sense of violating the accusatory system ([18], p. 526). According to Jacinto Nelson de Miranda Coutinho ([19], p. 11), this is because none of them reached the core of the 1941 Criminal Procedure Code system, which is completely out of step with the 1988 Federal Constitution.

Indeed, the center of the inquisitorial system consists in enabling the criminal judge to *manage the evidence* (by seeking it when he deems it necessary to clarify the truth of the facts) and, while procedural reforms do not manage to radically alter it, Brazilian criminal proceedings will never be accusatory because all the other elements are merely secondary to the definition of the procedural system ([19], p. 11). In fact, no procedural reform has ever approached the pivotal point of the problem: to this day, criminal judges in Brazil can seek evidence to decide at their convenience, evaluating it as they like.

The rationality that authorizes and legitimates this sort of procedure is the same that guides the premise that there is in fact a "real truth" and that it can be found through human knowledge, especially through criminal proceedings. Part of the doctrine distinguishes "real truth" from "formal truth," which is a serious mistake because, according to Francesco Carnelutti ([20], p. 4, 5), the truth is obviously unique and can never be reached by human beings, regardless of the method chosen to do so.

Lenio Luiz Streck ([21], p. 290, 291) cuts across and demonstrates that the concept of real truth is not sustainable because it proclaims something "real" and that, therefore, is justified by itself at the same time that it does not obviate the need for an interpreter to give it meaning—which leads to the judicial protagonism that makes

#### *Perspective Chapter: Corruption and Deterioration of Democracy – The Brazilian Lesson DOI: http://dx.doi.org/10.5772/intechopen.106194*

fundamental guarantees more flexible for the sake of public or social interest that cannot be precisely defined. Consequently, according to Salah Khaled H. Jr. ([22], p. 1), the search for truth is nothing more than an unlimited search for confirmation of a hypothesis previously chosen by the magistrate.

The great problem of the inquisitorial system (in general and of the Brazilian criminal procedure in particular), therefore, lies in the legitimation of the search for the truth that, by reflecting the past in an integral way, at least in theory, certainly distinguishes and accurately determines innocents and guilty. Hence the reason why, in the name of this absolute truth, all flexibilization of fundamental guarantees and all judicial abuse are legitimized, whether in the search for evidence or its subsequent evaluation.
