Operation Car Wash has been an emblematic investigation in Brazil. For the first time in history, Brazilians watched as politicians and billionaires were put in jail (even if most were in temporary arrests). Even the most popular politician in the country’s history – former President Luiz Inácio Lula da Silva – has faced multiple criminal cases and was recently sentenced to 12 years and 1 month in prison.
Among the left, the case sparked fury. Not only because their main hope for the 2018 presidential race could be excluded from the election altogether, but because of an alleged double standard. While Lula faces jail time in a case that split legal experts concerning the strength of the evidence, other high-profile politicians like President Michel Temer and Senator Aécio Neves (both of whom were caught on tape negotiating bribes) have not yet faced trial.
We explain why the difference.
Politicians holding an elected office at the federal level have the right to be prosecuted and tried only by the Supreme Court. That privilege was created in 1988, by Brazil’s first Constitution after the military dictatorship. It was meant to prevent congressmen from being hunted down by political enemies. However, it has become a tool for impunity.
The Supreme Court is perhaps the world’s most overburdened legal venue of its kind. Each of the 11 justices is responsible for over 11,000 individual decisions each year. Sometimes, cases even pass the statute of limitations, and are dismissed.
Since 2014, lower courts have convicted over 140 defendants of multiple crimes. Meanwhile, not a single politician under investigation has faced trial at the Supreme Court in Operation Car Wash-related cases.
The President’s case
With Temer, the legal privileges go even further. A sitting President can only be prosecuted if two-thirds of the House vote for it. As Temer found himself at the center of a scandal, in 2017, he used pork-barrelling to escape any prosecution.
Lose your office, lose your liberty
One great example of the differences that holding a federal office makes in investigations of political corruption is the case of ex-House Speaker Eduardo Cunha. He was accused of accepting bribes from Petrobras back at the start of Operation Car Wash.
The Supreme Court never did more than suspend him from office – but the decision didn’t strip him of the prerogatives of the office. However, the House Ethics Commission later impeached Cunha for lying about secret bank accounts in Switzerland, thus losing his privileged judicial status and going into the common justice system. And just like that, two weeks later a federal judge ordered his arrest.