Brazil Car Wash Scandal Faces Supreme Court Backlog

By Paulo Trevisani and Samantha Pearson Features Dow Jones Newswires

BRASÍLIA -- Brazil's Supreme Court recently gave its approval to prosecutors to investigate scores of senior political figures for alleged corruption, but the court itself will have to overcome some unusual challenges to put them on trial. Not least is its backlog -- as of Tuesday -- of 54,951 cases.

Continue Reading Below

Just last week, the court ruled on the long-running dispute about which soccer team deserved the right to claim the 1987 championship.

"We can't go on like this," an exasperated Chief Justice Cármen Lúcia Rocha said in a rare interview.

Chief Justice Rocha said it would likely take years to wrap up the trials of any sitting politicians that may result from the current "Car Wash" probe into bribery and kickbacks at state-run oil company Petrobras.

Brazil's constitution makes the Supreme Court the venue for final appeal in virtually any criminal or civil case, from divorces to stolen cellphone batteries.

Only the Supreme Court is allowed to try high-ranking political figures. Given the caseload, politicians who are charged are rarely brought to trial, effectively affording them immunity while in office. In recent years, Brazil's congress has included lawmakers accused of murder, rape and involvement in drug trafficking as well as a host of white-collar crimes.

Continue Reading Below

That has many Brazilians concerned that the Car Wash probe -- the biggest of its kind in the country's history -- will fizzle when it comes to putting top politicians behind bars, despite the Supreme Court authorization to prosecutors this month to open investigations into one-third of the country's cabinet members, over 60 congressmen and four former presidents.

Since the probe began in 2014, around 90 people -- mostly businessmen, lawyers, bankers and black-market money dealers -- have been convicted. The few politicians brought to trial, including former house speaker Eduardo Cunha, had been booted out of Congress, allowing them to be tried as ordinary citizens. To make that happen in more cases would require significant political momentum.

At the current rate, Brazilians will still have no idea who is actually guilty when they go to the polls in next year's presidential elections. It took the court seven years to try politicians over the smaller "Mensalão" vote-buying scandal that erupted in 2005.

With so many businessmen convicted in Car Wash, the Supreme Court is under pressure to make sure guilty politicians meet the same fate, said Matthew Taylor, a professor who specializes in Brazil's legal system at American University in Washington.

"This is a troubling two-track system," he said. "The [faster-moving lower] courts are generating a great deal of public angst about corruption in Brazil while the high court is unable to deal with even the most basic and straightforward cases."

Chief Justice Rocha said she supports moves to restrict politicians' legal privileges, allowing for lower courts to determine their fates in some cases. Substantial change, however, could only come through legislation passed by lawmakers themselves.

Brazil's high court likely has the highest caseload in the world as a proportion of the country's population, a problem that is true of the country's entire judiciary, said Ivar Hartmann, a constitutional scholar at Brazil's Getulio Vargas Foundation.

In 2015, there were 102 million lawsuits pending across all of the country's courts, according to the latest data from Brazil's National Council of Justice -- equivalent to one lawsuit for every two Brazilians.

The Supreme Court's 11 justices manage to process roughly as many cases as they accept, checking off around 30,000 so far this year. They don't tackle the docket in chronological order, and the backlog includes cases that entered the court system decades ago.

That means the court could prioritize Car Wash cases. But while appeal cases tend to flow more quickly because much work has already been done in lower courts, those involving sitting politicians start at the Supreme Court, posing a much greater logistical challenge for a staff already juggling thousands of appeals.

One of the older cases to reach the court was a dispute over who was Brazil's legitimate soccer champion in 1987, a year in which there were two parallel leagues. The case got to the top court in 2015; on April 18, a panel of justices gave the title to a club based in the northeastern city of Recife.

In one tragic example, a paternity case took 38 years to make its way from a lower court to a high court verdict in 2016; by then, the plaintiff had committed suicide.

"There is an excess of cases," said Chief Justice Rocha. "When I arrived in 2006 I was given 17,000 cases to handle."

Brazil's judges, who are largely well-paid and well-trained, are relatively efficient. But a generous public-defense service makes legal action easily accessible, and the country's staunchly independent judges pay little regard to precedent. Plaintiffs file cases despite previous rulings, as each foray may have a different outcome, Mr. Hartmann said.

The Supreme Court is also slowed by formal procedures that include a tradition of reading lengthy documents aloud.

Efforts to speed up the high court in 1998 by allowing magistrates to rule on some appeal cases alone rather than collectively, and again in 2007 by giving them the option of turning down some appeals cases, helped reduce its caseload.

When the justice in charge of the Car Wash investigation died in a plane crash in January, Chief Justice Rocha hurried to keep the probe moving. "It doesn't even enter my head that a case this big can just stop in the middle," she said. "The investigative process has to go all the way to the end."

ulo Trevisani at paulo.trevisani@wsj.com and Samantha Pearson at samantha.pearson@wsj.com

(END) Dow Jones Newswires

April 26, 2017 05:44 ET (09:44 GMT)