**4. The context of Operation Car Wash and the judicial partiality of Federal Judge Sérgio Moro**

Operation Car Wash took place after the enactment of the so-called Clean Record Law (Supplementary Law 135/2010), which prevents anyone criminally convicted by a collegiate body from running for any elective office for 8 years. Without this restriction limiting the will of the electorate, Operation Car Wah would probably not have caused so much institutional turmoil: after all, the mere non-definitive conviction by a collegiate body would not have removed the leader of the polls from the 2018 electoral dispute.

Mariana Mota Prado and Marta R. de Assis Machado explain that in July 2013 there were huge protests against corruption and an increase in the attention of the press and institutions responsible for accountability to the issue, which may have created a window of opportunity for changes ([23], p. 10).

Structured and publicized since the beginning (2014) as the biggest operation against corruption in the history of Brazil, Operation Car Wash clearly had a predestined aim: to strike the Workers' Party (PT), which at the time occupied the Presidency of the Republic with Dilma Rousseff (she was impeached in 2016), and especially former President Luiz Inácio Lula da Silva, who would seek reelection in 2018 (when he was leading the polls [24]) but ended up in prison for 580 days due to a non-definitive conviction—and without evidence—delivered by an admittedly biased judge.

One of the changes referred by Mariana Mota Prado and Marta R. de Assis Machado may be directly linked to the very definition of corruption. The Brazilian Penal Code describes corruption as two distinct crimes: active corruption (supply side) and passive corruption (demand side). Former President Luiz Inácio Lula da Silva was convicted of passive corruption—a crime that requires the actions of requesting, receiving, or accepting a promise of undue advantage on behalf of the public function in exchange for an action, an omission, or a delay in its performance—for allegedly receiving gifts from private companies. As the authors point out, when substantiating the conviction Federal Judge Sérgio Moro expressly highlighted out that it was unnecessary for those private companies to have received any advantage in retribution for those treats for the setting of the crime of passive corruption. He acknowledged that this was a controversial interpretation of the crime of passive corruption but maintained it, arguing that it was necessary to tackle highlevel corruption ([23], pp. 13–14).

Although the Brazilian Penal Code is not entirely clear on the matter, until recently the tendency of the courts was to demand proof of the existence of a connection

between the payment promised or made by the private agent and the benefit received by the public official (in a word: *quid pro quo*), still according to Mariana Mota Prado and Marta R. de Assis Machado. However, this trend was abandoned in *Mensalão* Case, when—a few years before Operation Car Wash—the Brazilian Supreme Court "ruled that there was no need to prove a causal connection between the payments and a particular action" and that it was enough to prove that the public official had received an undue advantage in exchange for performing acts related to his public function ([23], p. 15).

According to Mariana Mota Prado and Marta R. de Assis Machado, to criminally convict Luís Inácio Lula da Silva, Federal Judge Sérgio Moro went even further: the conviction was based on indicia that private companies were planning to give him a triplex in Guarujá/SP, but the only substantial evidence was that the senior managers of Petrobras (the Brazilian petroleum corporation)—who is not even appointed by the President of the Republic but by the board of directors of the state company—favored the companies that were supposedly providing the gift. There was no direct relationship between the triplex and the performance of Luís Inácio Lula da Silva as President of the Republic—the link was established through the following chain: the board of directors of Petrobras appointed individuals (senior managers) recommended by a government minister, in turn, appointed by the President of the Republic ([23], p. 15).

In the words of the authors, the assumption was that Luís Inácio Lula da Silva appointed high-level officials "who would, in turn, appoint corrupt directors, who would then strike the deal for overpriced contracts between construction companies and Petrobras." ([24], p. 16). However, it was not demonstrated that the appointments had this deviation purpose, much less that Luis Inácio Lula da Silva had any knowledge about the corruption scheme inside Petrobras. The conviction was based on a presumption against the defendant, not on substantial evidence.

The vices of that sentence are numerous. João Paulo Allain Teixeira, Gustavo Ferreira Santos, and Marcelo Labanca Corrêa de Araújo ([25], p. 67) stated that "In espousing and courting public opinion fostered by the national mass media, Judge Moro transformed evidence into mere procedure details. When the evidence (or lack of it) does not speak for itself, any verdict is unpredictable, depending on the whims and convenience of the moment." "A decision that appears nothing like a judicial sentence. It is more like a long—as it has more than 200 pages—personal opinion in relation to the accused," in the words of João Ricardo W. Dornelles ([25], p. 68).

Pedro Estevam Alves Pinto Serrano, Anderson Medeiros Bonfim, and Juliana Salinas Serrano ([26], p. 42, 43) demonstrate that, if in the United States of America and continental Europe it is possible to identify both a clear jurisprudence of the Criminal Law of exception and measures of exception in special laws on the subject of national security (terrorist threats), in Brazil the enemy is fought by the criminal law and criminal procedure of every day, reinterpreted in an exceptional way, so that the criminal justice system (magistrates, public prosecutors, and police precinct chiefs) became—with the fundamental support of the media—the sovereign author of the exceptional measures.

Also according to the authors ([27], p. 43), the exceptional jurisdiction is characterized by the simplification of the judicial decision itself, which is no longer mediated by Law—in fact, it temporarily suspends it in specific situations, without any coherence or rationality (so much that it does not produce jurisprudence, since changing the actors involved or the political purpose, also changes the decision, which can return to Law or produce a new exception).

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

It is difficult to interpret Operation Car Wash otherwise. Pedro Estevam Alves Pinto Serrano *et alia* ([27], pp. 45–47) point out, among other extravagances, that Federal Judge Sérgio Moro (i) did not remain equidistant from the prosecution and the defense; (ii) issued the decree of coercitive conduction of Luís Inácio Lula da Silva in violation of the law (on the grounds of avoiding possible riots – with clashes between political activists in favor and against the former President if the coercitive conduction did not occur); (iii) determined his appearance at the hearings of the 87 witnesses listed by the defense, despite the Criminal Procedure Code does not require the presence of the defendant in such acts and (iv) successfully intervened, even while on vacation, to keep him in prison after a court decision that restored his freedom in a *habeas corpus* decision [28]. The authors ([27], p. 47) continue to argue that, after the conviction of Luís Inácio Lula da Silva to 9 years and 6 months in prison for corruption and money laundering (on 07 December 2017), both the prosecution and the defense appealed to the Federal Regional Court of the 4th Region, which was resolved at an absolutely atypical speed for Brazilian standards, with the conviction being maintained and the sentence upsurged. From then on, the requirement of the Clean Record Law was fulfilled in order to prevent Luis Inácio Lula da Silva from running for the 2018 elections.

For Brazilian democracy, as already exposed, the direct consequence was the removal of Luís Inácio Lula da Silva from the electoral dispute (he was leading the polls even at the pinnacle of Operation Car Wash) with the consequent election of Jair Bolsonaro in 2018. For the anti-corruption agenda, the consequence was its discredit in front of the perception that it is in fact a speech easily used against political opponents by chance. This feeling became even stronger when Federal Judge Sérgio Moro left the Judiciary a month after the elections to join the newly elected government as Minister of Justice and Public Security [29]. When he later announced his departure from Jair Bolsonaro's government [30] and tried to run in the 2022 presidential election [31], it was already clear to everyone that his political project had begun much earlier.

In addition to specific problems related to the way in which the turn state's evidence (institute on which the convictions in Operation Car Wash were built) was envisioned in Brazil through Law 12.850/2013, Federal Judge Sérgio Moro took advantage of circumstances and structural deficiencies of the Brazilian criminal procedure to reach the conviction of Luiz Inácio Lula da Silva. The manipulation of the electoral process through the criminal procedure was only possible in Brazil because (i) the punitive agencies joined the mass media for the spectacular dissemination of excerpts of turn state's evidence in order to garner the support of the population against politicians and great businessmen (similar to what happened in Operation *Mani Pulite*, in Italy—and where the Federal Judge Sérgio Moro clearly drew inspiration, since more than a decade before he had written a paper sustaining that public opinion would be essential for the success of the legal action [32], (ii) the Brazilian Criminal Procedure Code is inquisitorial and was structured in such a way as to enable the neutralization of individual guarantees that the system formally enunciates, and (iii) the doctrine and the technicist jurisprudence that began to form after the enactment of the Criminal Procedure Code has progressively fed back into the system to the present day, ignoring and emptying the new reality imposed by the Constitution of the Federative Republic of Brazil of 1988.
