The Brazilian Judiciary and COVID-19

     

    Judge Fausto De Sanctis

    The judiciary of Brazil has responded to the challenges and chaos wrought by the novel coronavirus COVID-19 with important efforts to provide essential court services while protecting the safety of judges, court personnel, litigants, and the public.

    The judiciary has undergone significant cultural and practical changes in the post-pandemic period. The courts have successfully embraced working remotely and using videoconferencing to carry out court cases. The judicial system’s use of technology is setting an example of professionalism and productivity, though these efforts and methods vary, depending upon local capacity and resources. The High Courts’ weekly or biweekly sessions are conducted virtually, as are proceedings in many of the country’s lower federal courts. The majority of hearings in Brazil’s less technologically equipped regional courts, on the other hand, have been postponed.

     

    Public Engagement

    There is no easy way to preserve normalcy in Brazil, given the scale of the pandemic. Nations around the world hope for the development of a vaccine that will protect their citizens from COVID-19. But most are keenly aware that this will not be possible in the short term, and the emergency, once but a dormant volcano, is about to erupt in social, economic, and political crises. The pandemic, and the overwhelming social and economic needs it has created, have contributed to political instability, great anxiety among citizens, and growing distrust of public officials.

    Amid all this, the judiciary must work to live up to the needs and expectations of the public. The National Council of Justice (CNJ) is responding by opening up public dialogue to respond to the community’s needs and interests. Evolving justice-sector policy must be developed in close collaboration with the authorities and the affected populations. It must also avoid conflicts between politics and medical science. The Brazilian judiciary has been called on and is responding, despite the unprecedented situation that the country is facing.

     

    Court Technology

    The CNJ has provided a secure digital platform for all courts in the country to hold hearings and trial sessions by videoconference. The Emergency Video Conferencing Platform for Procedural Acts authorizes judges to expand their work during the COVID-19 pandemic while face-to-face work is unfeasible.

    Through this videoconferencing tool, magistrates have been able to create virtual courtrooms to hold judgment sessions, hearings, and meetings. The tool has also enabled them to engage with all the actors in the judicial system, including public and private lawyers or defenders, members of the prosecution, judges, and court staff. If necessary, technical support in virtual and live mode has also been possible. This technology enabled the first CNJ session to be held by videoconference on March 31, 2020—an example of early efforts to adhere to social distancing.

     

    Criminal Justice System

    In response to the pandemic, the Department of Monitoring and Inspection of the Prison System and the System for the Execution of Socio-Educational Measures of the National Council of Justice (DM/CNJ) has been investing in technology to consolidate initiatives already underway and to prepare new strategies. CNJ Recommendation 62/2020 has required courts to report biweekly to the CNJ about local pandemic conditions. A new reform initiative, the Present Justice Program,[1] has authorized online meetings and remote activities. Local teams are using technology to support the dissemination of information. The program’s guidelines address electronic monitoring and alternatives to incarceration in accordance with new guidelines issued by the CNJ. Representatives from different institutions across the country, including courts, law enforcement, corrections, sections of the Brazilian Bar Association, and the Prosecution and Public Defender's Offices, participated in series of virtual meetings to discuss these reforms.

     

    Corruption

    Challenges related to COVID-19 are arising at the intersection of public administration and law enforcement in Brazil. A health emergency law was enacted to address public health concerns. The enacted law authorized quarantine, mandatory testing, and a massive public procurement process for medical supplies and other coronavirus-related needs. There have been abuses in the procurement process, including questionable bidding and embezzlement of public funds. Law enforcement is struggling to investigate large-scale fraud and other economic crimes, while constrained by the pandemic’s accelerating spread throughout the country.

    One of the larger investigations currently underway concerns the acquisition of 3,000 ventilators from China by the São Paulo state government. When the São Paulo government announced the payment of R$ 550 million (about $110 million dollars) for the equipment, it became the target of investigation by the state prosecutor and the State Court of Auditors (TCE-SP).

    Governor João Doria explained that problems with suppliers caused the order to be cut by more than half. The new terms provide for the transfer of 1,280 ventilators at a total cost of R$ 261 million ($52 million dollars). Despite the renegotiation, inquiries to ascertain the content of the original agreement continue.

    Similar investigations of public contracts are taking place in the states of Rio, Santa Catarina, Ceará, Amapá, Roraima, Pará, Maranhão, Acre, and Rondônia. For example, a federal investigation, named Placebo, authorized search-and-seizure warrants at twelve addresses in Rio de Janeiro and São Paulo connected to the embezzlement of funds for the construction of field hospitals in Rio de Janeiro to assist patients with severe cases of COVID-19. The orders were issued by the minister Benedito Gonçalves of the Superior Court of Justice (STJ) in Brasilia, the capital, due to evidence that pointed to the existence of a corruption scheme involving a social organization contracted for the installation of field hospitals and civil servants of the health system of the state of Rio de Janeiro.

    The Brazilian government faces an emergency and mobilized to quickly secure and disburse needed public health supplies. But those with criminal intent have taken advantage of vulnerabilities in the procurement process at a time when government agencies are less equipped to maintain oversight. The judiciary is handling these cases as they are filed, and the situation is increasing caseloads of judges already overburdened by the inevitable slowdowns caused by the pandemic.

     

    Conclusion

    In the face of the COVID-19 pandemic, Brazil’s judicial system is harnessing technology to maintain productivity, and judges are hard at work adjudicating complex corruption cases. During the pandemic, Brazil’s courts have been open to the public, even if in a different way. Although full physical reopening is not expected until 2021, the judiciary is committed to addressing the myriad new and unexpected challenges that will arise.


    About the Author

    Fausto Martin De Sanctis, an appeals judge for the Regional Federal Court of the 3rd Region in Brazil, was a Visiting Fellow at the Federal Judicial Center in 2012. Judge De Sanctis is the author of numerous books and articles.

    Artigo original.

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