Public Note #3 – For the preservation of Criminal Justice principles

The leaked content of the messages exchanged between judge Sérgio Moro and the Prosecutor General of the Republic Deltan Dallagnol impels the Arns Commission to demonstrate its profound concern with the delivery of Criminal Justice in our country.

It is well known that the State’s punitive actions, in order to be legitimate, need to be guided by the constitutional principles and precepts imposed by the ordinary legislation. Such principles, as well as the individual rights they seek to ensure, constitute the foundation of the Democratic Rule of Law.

The Federal Constitution, through some of the fundamental rights and safeguards established in Article 5, intends to prevent the State from committing excesses in the exercise of its punitive activity, to the detriment of the dignity of the people accused of criminal conducts.

Among these principles, three stand out as having remarkable importance for the preservation of individual safeguards, given the conduct of the Judging State: the principle of due process of law; the principle of ample defense; and the principle of impartiality and independence of judges.

Furthermore, since Criminal Justice is carried out through a tripod consisting of a judge, a lawyer, and a prosecutor, the relationships between them are clearly defined by the legal framework. Thus, the judge is placed at the apex of the pyramid, impartial and equidistant from the parties, and has to provide them with an accurately egalitarian treatment. The parties, in turn, the lawyer and prosecutor, are on the same level, exercising their pleading activity according to pre-established rules, in obedience to the principle of due process of law.

Well, the messages exchanged, through an application, between the aforementioned judge and prosecutor demonstrate, in theory, a rupture in the penal system due to the violation of those principles. One of the parties in the process was favored over the other, who did not have the same opportunity to communicate with the magistrate. There was, therefore, a disregard for equal treatment between the parties.

On the other hand, and still in theory, when discussing prosecution strategies and suggesting measures and procedural conducts, the judge has set aside his impartiality, showing signs of being committed to the accusatory theses. It can be inferred that, even before the conclusion of the process, his conviction was already established, thus affecting the principles of due process of law and ample defense.

In view of the above, the Arns Commission declares its concern with the non-observance of the constitutional principles that govern the punitive activity of the State, oriented at the preservation of human dignity and individual rights, and which constitute one of the pillars of the Democratic Rule of Law. Finally, it hopes that constitutional rules and the ordinary law will not be disregarded again so that the State does not lose its legitimacy in fulfilling its duty to investigate crimes and punish those accountable.