The future of Car Wash
Article comparing Operation Lava Jato with the Italian Clean Hands and discussing the future of the investigation, O Globo, 2016.
Translated from the original.
Drawing a parallel with Clean Hands to induce the idea that there is a prospect of failure is a mistake, since what matters is diagnosing the strategies of those under investigation
FÁBIO MEDINA OSÓRIO
Operation Clean Hands in Italy is a reference for Lava Jato in Brazil, but it is far from being the only reference, not least because Brazilian society, its politicians, its leaders and its institutions can critically assess past experiences, so that history does not repeat itself as farce. It should be noted right away that the Brazilian system has a model that is much more advanced than the Italian one — which is natural in terms of appropriating the evolutionary experiences of Law itself — and also more eclectic in the field of comparative models, in addition to having different institutions (models of judiciary, Public Prosecution Service, police).
The Lava Jato operation, for its part, has peculiarities totally distinct from Clean Hands, starting with the attack on those who bribe, which was not a central feature of the Italian operation, but rather a more recent note stemming from the anti-corruption legislation spread through the influence of American law.
In other words, although Lava-Jato may have been inspired by Operation Clean Hands, it is obvious that, including because of the distance in time and geography and the peculiarities of the legal systems, such operations bear visible differences, which can inspire hope and expectations in Brazilian society.
In a recent interview with BBC Brasil, Vittorio Craxi, son of a former prime minister convicted in Italy, argued that that operation was a disaster for the country and that there were setbacks, referring notably to the Berlusconi phenomenon. It is worth recalling that Mani Pulite was the largest anti-corruption operation in European history, but not the only one, and it exposed a network with tentacles in the main sectors of Italian political and economic life, helping to dismantle schemes of bribe payments by private companies interested in securing contracts with state-owned companies and public bodies and the diversion of funds to finance political campaigns.
In reaction, in Italy, there were attacks on the magistrates in charge of conducting the proceedings, although nothing was ever proven regarding the allegations of corruption of the overseers. The core idea of accountability of political agents, for abuses or misuse of power, is not wrong, since no authority is above the law, not even judges or prosecutors. However, these attacks may be part of an institutional plan, when systematically orchestrated.
Drawing a parallel between Clean Hands and Car Wash (Lava Jato) in order to induce the idea that there is a prospect of failure is a mistake, since what really matters is to diagnose the strategies used by those under investigation to shield themselves from liability through the infiltration of organized crime into the public apparatus, as well as to detect the underground paths used to demoralize judges, members of the Public Prosecution Service and police officers, insofar as there are repetitive and standardized behaviors in these actions.
Currently, criminal organizations seek the civil death of authorities and political adversaries, through defamation, slander, insult and moral deconstruction, relying on opinion makers, blogs, social media and even specialized professionals. These attacks may be more effective than physical elimination itself. For that reason, it is essential to diagnose the errors of other operations involving mega-cases, in addition to the strategies of criminal organizations, since the globalization of wrongdoing and crime points to patterns of conduct that become more refined over time.
However, the technologies of the contemporary world, the speed of information, international cooperation, and the degree of participation of society and public opinion carry very different weights in the age of complexity, and Brazil is part of an international agenda against corruption, improbity, and inefficiency. Italy in the 1990s was isolated in this fight. Moreover, institutions are far better technically prepared today than in the past.
Institutional reforms should be fostered that create incentives to inhibit corrupt and corrupting practices, especially in the sphere of prevention. It becomes important to reduce the importance of monopolies and bureaucracies in decision-making processes. There are indecipherable bureaucracies that favor uncertain or arbitrary decisions, permeated by legal uncertainty, and this certainly constitutes fertile ground for corruption. The professionalization of regulatory agencies — which were scrapped or politically instrumentalized in recent years — would be one of the great urgencies for Brazil to join an international agenda of legal certainty and credibility. Another prominent point would be the strengthening of self-regulatory environments and of prevention of unlawful practices. Investing in compliance is the most relevant point for public administrations and the private sector, provided that one bets on structures endowed with autonomy and credibility.
Brazil will come out much stronger and reinvigorated from this experience of ethical cleansing in the public and private sectors. The cost of proceedings and reputational damage is too high to be absorbed by companies and political agents. The best path is prevention and the strengthening of oversight institutions, continuing the relentless fight against corruption and administrative improbity.
Fábio Medina Osório is president of the International Institute of State Law Studies