Operation Car Wash’s public enemy number one

. Nov 18, 2019
Supreme Court Justice Gilmar Mendes Supreme Court Justice Gilmar Mendes. Photo: Marcelo Camargo/ABr

On Sunday afternoon, various cities around Brazil saw demonstrations of pro-Jair Bolsonaro groups calling for the impeachment of Supreme Court Justice Gilmar Mendes, the current bête noire of the Brazilian far-right. While calls for the protest dominated social media for the entirety of last week, with a series of different hashtags dominating the trending charts and hinting towards large numbers on the streets, the demos themselves were sparse.

In the week leading up to the protests, The Brazilian Report met with Gilmar Mendes at his Brasília law school and think-tank to talk about how he is perceived by the public, the recent Supreme Court decision to disallow the execution of jail sentences before all appeals are exhausted, and the conduct of former judge Sergio Moro in Operation Car Wash.

Read the full interview below:

</p> <p><strong>On November 17, protests have been called around Brazil demanding your impeachment. Why do these pro-government, pro-Operation Car Wash groups see you as an enemy, or as a threat?</strong></p> <blockquote class="wp-block-quote"><p>In the U.S. Supreme Court, we have the argument about abortion; in Brazil, the debate is on criminal matters, which is part of the current cultural moment. And they&#8217;ve appointed me as some sort of leader.</p></blockquote> <p><strong>Why is that, do you think?</strong></p> <blockquote class="wp-block-quote"><p>In this specific case … I mean, I&#8217;m almost the longest-serving member in the court, I arrived in 2002 and I have a certain role in the debate. But in this specific case [to disallow the execution of jail sentences <a href="">before exhausting all appeals</a>], I announced a change in my opinion, which could have sparked this [opposition].</p></blockquote> <p><strong>You mentioned the pressure that exists on the Supreme Court in the U.S., but it would appear that in Brazil it is taken even further, in terms of the attacks you and your colleagues receive online.</strong></p> <blockquote class="wp-block-quote"><p>In Brazil, our legal process is much more visible. We have public trials, broadcast on television. In the U.S., more informed people do know the names of the justices and what they think, but it&#8217;s less visible. But if we look in the past, during the time of racial desegregation [in the U.S.], someone sent me something recently … [<em>Justice Mendes searches through his phone and produces a picture of </em><a href=""><em>a flyer of former U.S. Chief Justice Earl Warren</em></a><em> in the 1950s, which states he is &#8220;Wanted: for Impeachment&#8221;.] </em>Justice Warren was the judge who took over the <a href=""><em>Brown v. Board of Education</em></a> trial and helped change the school segregation laws, so these are cases that divide society.</p></blockquote> <p><strong>Do you follow the insults and attacks you receive on social media?</strong></p> <blockquote class="wp-block-quote"><p>No, no. I mean, someone will tell me when someone has gone too far or something like that. But social media is a relatively new phenomenon, for everyone. And the feeling you get is that people consider themselves as having a certain level of anonymity [on social media], which allows them to take their clothes off, show off, and produce this sort of stuff. This is the big problem. And when we have these so-called &#8220;digital militias,&#8221; where groups are organized and work together, you have the momentum of the collective: people who would be incapable of committing any crimes end up banding together and attacking someone or something. They&#8217;re like British football hooligans.</p><p>This persona they&#8217;ve painted isn&#8217;t me, I have to admit that.</p></blockquote> <p><strong>Now, returning to the recent Supreme Court trial on the possibility of prison sentences to be carried out after a single appeal. You mentioned that you were one of the members of the court that changed their minds on the issue between 2016 and this month. Why the change of heart?</strong></p> <blockquote class="wp-block-quote"><p>Strictly speaking, what we said back in 2016—and this is very clear if you read the headnote of the decision—is that imprisonment [after a single failed appeal] would be <em>possible. </em>But what happened after that? It became an order, imprisonment became the rule after 2016. That&#8217;s how the lower courts interpreted it. One regional appellate court in Rio Grande do Sul—the court that worked on Operation Car Wash—issued a precedent specifying that after appellate convictions, imprisonment would happen immediately. So, from there, we went back to discuss the matter, because that wasn&#8217;t what we said.</p></blockquote> <p><strong>Do you and your Supreme Court colleagues consider the 2016 decision as a mistake that needed to be corrected?</strong></p> <blockquote class="wp-block-quote"><p>No, I mean the 2016 decision was a provisional decision, it was an injunction which has now been decided on definitively. It was a preliminary decision because we knew that eventually we would go back and make a final decision.</p></blockquote> <figure class="wp-block-image"><img src="" alt="Anti-Gilmar Mendes protest" class="wp-image-27769" srcset=" 1000w, 300w, 768w, 610w" sizes="(max-width: 1000px) 100vw, 1000px" /><figcaption>Anti-Gilmar Mendes poster. Photo: Massis/Shutterstock</figcaption></figure> <p><strong>After the outcome of the trial, we have seen Congress rush to try and push through a constitutional amendment to put the possibility of imprisonment after a single failed appeal into the Constitution. Is there any chance of this prospering?</strong></p> <blockquote class="wp-block-quote"><p>This debate already existed in the past, it was actually stimulated by a former colleague of mine, who replaced me as Supreme Court Chief Justice, Justice [Cezar] Peluso. He submitted a proposal to amend the Constitution and establish the possibility of prison sentences being carried out after one appellate conviction, but it was never voted on in Congress. Every now and again this movement happens in one direction or another. Why? Today in Brazil we have around 850,000 people in jail. Forty-one percent of these are under provisional detention.</p></blockquote> <p><strong>Meaning they haven&#8217;t even been sentenced by a trial court.</strong></p> <blockquote class="wp-block-quote"><p>Exactly. Sometimes, these people are left in jail for a very long time … And the situation of our jails… we have 400,000 places for 850,000 inmates. If you look at the reforms we have carried out, many of them have been done so as to reduce the number of prison inmates. All of these aspects have to be involved, Congress has to take all of this into account, but we have to improve the system as a whole.</p></blockquote> <p><strong>And where does the Supreme Court come into that?</strong></p> <blockquote class="wp-block-quote"><p>It&#8217;s up to us to speed up decisions on criminal cases. In some way, we have been doing this, but the Supreme Court also had a legal policy role, as the Chief Justice is also head of the CNJ [National Council of Justice] and he can implement policies that improve the justice system as a whole.</p></blockquote> <p><strong>Does this decision on provisional execution of sentences provide any relief to the Supreme Court in terms of the number of habeas corpus cases being filed?</strong></p> <blockquote class="wp-block-quote"><p>I don&#8217;t know. In numerical terms, there was an increase in the number of habeas corpus requests after 2016, the figure doubled in the space of a year.</p></blockquote> <p><strong>You are currently in possession of a habeas corpus filed by the defense counsel of ex-president Lula, questioning the impartiality of ex-federal judge Sergio Moro when presiding over Operation Car Wash cases. Do you know when you will bring the case to trial?</strong></p> <blockquote class="wp-block-quote"><p>We expect to decide on it before the end of the year.</p></blockquote> <p><strong>Did Sergio Moro and prosecutor Deltan Dallagnol act illegally during Operation Car Wash?</strong></p> <blockquote class="wp-block-quote"><p>This is what we are debating. What we have is what is being argued in the habeas corpus, along with the revelations of the Car Wash Leaks, the information published by <em>The Intercept</em>. And there is some worrisome evidence there, of affiliation, cooperation among judges, arrangements.</p></blockquote> <p><strong>In recent weeks, we have seen a series of unrest all over South America, and many of the developments, in one way or the other, involve the local high courts. What is the Brazilian Supreme Court&#8217;s role in mediating these tensions from the left and right?</strong></p> <blockquote class="wp-block-quote"><p>Well, if you look closely, over time, the Supreme Court has played this moderator role. At the end of last year, during the elections, we had cases of invasions in universities, of attempts to remove protesters in universities. The Supreme Court was called into action and we ordered that these invasions and removals could not take place. There have been other decisions which helped moderate the political process, which I think is the court&#8217;s job. And Congress has been carrying out this role too. The president has seen many of his decrees voted down by lawmakers, so I think this system of checks and balances is working.</p></blockquote> <p><strong>Do you think there is a chance of any sort of democratic rupture in Brazil, similar to what we have seen in other neighboring countries?</strong></p> <blockquote class="wp-block-quote"><p>I don&#8217;t think so. Brazil is a young but well-consolidated democracy. We&#8217;ve had around 30 years of full democracy and working institutions. In Congress, the President has support, but divide across a very broad base. His core of unconditional support is no more than 10 percent of Congress. Lawmakers have approved some measures, they&#8217;ve rejected others, and it seems that more presidential vetoes have been overruled this year than in previous governments. To me, it looks like the checks and balances system is working. Also, I don&#8217;t see the Armed Forces as having any sort of hegemonic aspirations. What there is is a lot of political &#8216;noise,&#8217; but this has been there for a while. I don&#8217;t fear any kind of democratic rupture at this point.

Euan Marshall

Euan Marshall. Originally from Scotland, Euan Marshall is a journalist who ditched his kilt and bagpipes for a caipirinha and a football in 2011, when he traded Glasgow for São Paulo. Specializing in Brazilian soccer, politics and the connection between the two, he authored a comprehensive history of Brazilian soccer entitled “A to Zico: An Alphabet of Brazilian Football.”

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