The occurrence of serious events at Petrobras is not discussed, but the categorical statement of the judge of the case concerning the suit, prior the judgment, is inadmissible. Any citizen can advance a value judgment concerning the public facts involving Petrobras. Not the judge of the case!
Besides the comments on the case in progress, the proposal of the judges means that the accused, when sentenced by the judge of the first instance should go directly to jail, even it can appeal the sentence and maybe be acquited or have the sentence mitigated. With such measure, judges believe they will contribute to the solution of the corruption.The proposal astonishes when it is verified that two judges strive for the flexibilization of an eternity clause registered in the Constitution, and that, as they know, was object of evaluation by the en banc of the Federal Supreme Court (STF), when it has been registered that the presumption of innocent ensures that accused await at liberty the final trial.
The discussion is old. The Code of Criminal Procedure, of 1941, did not allow, as rule, the appeal at liberty. In the heart of the military regime, the rule was slowed. The former Law of the Organized Crime already predicted the impossibility of appealing at liberty. It was revoked by the new law that establishes the criminal organization.
It does not seem that the fight against corruption and against other crimes of equal or greater severity should serve as motto to stop achieving not only for democracy, but for the Western civilization process.
Many people use the example of the American model, in which, sentenced at the first instance, the accused goes to jail. Which occurs is, there, the majority of the cases reach an agreement. Besides, when the suit continues, the person is judged by the jury, that is, a panel of judges.
Here defendant is judged only by one judge, which can be very good, otherwise, arbitrary. On the other hand, there is no empirical work showing in what proportion the sentences of the first instance are reformed, but based on our experience, it is not small.
The resurgence of the criminal system does not result in the decrease of crimes. It seems obvious that businessmen and directors of Petrobras involved in Lava Jato Operation were focusing on things away from the “punitive system”.
Actually, there is a crisis of values combined with mechanisms that enable the corruption, as the policy framework that involves the state-owned company. If we do not find a solution for the crisis, and without changing strongly the framework that enables this type of “business”, the resurgence of the criminal system will little affect or affect anything the corruption phenomenon.
Before Lava Jato we had the judgment of mensalão, which resulted in convictions and detentions. In a not so distant past we had other operation with businessmen imprisoned, and it did not work as dissuasive element.
Besides, with regard to the so-called heinous crime, there was an improvement of the punitive system with the increase of sentences, impracticability of pretrial release in the cases of flagrante and the requirement of the full compliance with the sentence in closed regime that only after a long time the Federal Supreme Court declared the unconstitutionality, and it did not work.
Crime rates did not fall with regard to the “improvement” of the criminal justice system. Now, illusorily, it is desired to adopt a similar method to tackle the crisis that is not recent.
In addition to the constitutionality issue, without consistent studies concerning the effectiveness of the early imprisonment, the efficiency of the appeals, and with regard to the own criminality, we will have a type of alibi model intended to reassure the public opinion momentarily with a heavy burden on the accused that are presumed innocent.
