Penal code falls short of society's wishes
Valor Econômico - Special Section - Fighting Corruption - 17/08/2012
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Outdated, the Brazilian Penal Code does not meet the wishes of society, nor does it allow the punishment of organized crime in the country in an exemplary manner. According to jurist Walter Fanganiello Maierovitch, professor of criminal law and European Union consultant on the subject, if there are no changes in the body of the law, there will never be in Brazil an initiative like Operation Clean Hands, in the 90s in Italy, which culminated in the investigation of more than 6 people, including businessmen, civil servants and parliamentarians, including former prime ministers Giulio Andreotti and Bettino Craxi, who had their political careers ended after proof of involvement in Italian mafia activities.
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In Maierovitch's view, the action of organized crime in Brazil reached a degree of sophistication similar to that observed in Italy. He cites the strong indications pointed out in the relations between the bicheiro Carlinhos Cachoeira, the ex-senator Demóstenes Torres and the construction company Delta.
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"It has reached a stage where there are suspicions of money laundering of gambling with fraudulent bids from contractors," he says. According to the Penal Code, says the lawyer, situations like this can only be framed through the formation of “gangs or gangs”, according to article 288. And, in the overwhelming majority of the time, as the defendants are primary, lawyers get habeas corpus to respond in freedom. “The preventive detention of Carlinhos Cachoeira is an exception in the Brazilian system,” he says.
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The lawyer suggests an amendment to expand the concept of "gang and gang" to "special criminal associations", as was done in Italy in the late 80s, at the initiative of a deputy from the Socialist Party. “In Brazil, the presumption of innocence prevails, which is a correct principle, but there are situations in which pre-trial detention is necessary for investigations to reach all links in the criminal chain. With technological tools, the top of an organization can operate outside Brazil and corrupt internally ”. In the Italian legal field, “special criminal associations” are understood as those that have corrupting power, such as territory control and social control, with infiltration in the State, to the point of interfering in the electoral process. Another case remembered is that of former Fluminense deputy Álvaro Lins, with proven involvement with Rio de Janeiro's militias, who respond to the process in freedom due to his good record.
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The lawyer defends that the classification of organized crime follows what was agreed in the Palermo Convention, held in 2000 and ratified by Brazil in 2008. According to the document, even money changers can be cited in the formation of organized crime. Maierovitch goes further and supports the inclusion of religious entities that use space purchased during TV hours to practice actions classified as “true fraud”. Among other urgent changes, the lawyer advocates the end of the privileged forum for authorities and the adoption of more technical criteria for the appointment of ministers to the Supreme Federal Court (STF), who would have five-year terms, without the right to reelection.
