In enlightenment to the new Law, the Real Estate Registry Office shall now only require a written declaration, provided by the owner of the rural property, stating

What criteria does the Brazilian judiciary use to claim that someone owns something that doesn’t officially belong to them (eg. Lula’s alleged apartment)? If there’s no paperwork, what counts? What rights does the “owner” have? Can they sell it?

There’s a fine line to be trod upon when we’re investigating crimes. We mustn’t throw out the baby with the bath water. Depending on how we frame suspects, we might succeed in obtaining what we want at the cost of making the world a worse place overall.

You may have heard about Mr. Al Capone.

History tells us that it was widely known that he was a mob boss who had half of the police in his payroll and was running lots of illegal businesses in the general area of Chicago and its outskirts. However, it was impossible to find hard evidence connecting him to any of his businesses, so the FBI framed him for money embezzling (not paying his due tax) noticing his lush lifestyle versus his declared annual revenue. Al Capone was sent to jail and everyone was happy. To most people, this is what they’d call a huge success.

But I disagree: it was a mess and it didn’t make the world any better.

Mob bosses still existed after his conviction. Capone wasn’t even the most powerful of them. Every form of mob activities was still going on well into the eighties, including the “protection” rickets.

Most of Capone’s power resulted from his control of alcohol production, transportation, delivery and standardising. He was a monster created by puritanism. Back in the days of prohibition, even respectable people would often make moonshine for their own consumption or keep a stash of illegally imported wine for “special occasions”. A lot of this alcohol was provided by Capone and people like him. Without prohibition, Capone would never have earned so much money so fast.

Alcohol prohibition was so absurd that it was mocked worldwide (here in Brazil we nicknamed it Lei Seca — the “Dry Act” — and the phrase is still used to refer to a forced abstention, like “my wife has been keeping me in Lei Seca”, meaning that she has denied sex). Prohibition was eventually overturned, but only after Capone’s conviction and after enabling men like him to become big.

Capone was prosecuted, tried and sentenced, but few of the corrupted policemen he had under his thumb were. These men, once corrupted, were easy target for later mob bosses.

In order to imprison Capone, the USA had to create a new category of crime (“tax evasion”), had to warp the law to admit that an attorney could “confess” in lieu of his client and many other questionable technicalities. In all fairness, when you read through the history of his judgement, unless the writers who have written about it are flaunting their own skewed interpretations, it seems that the judge, the prosecutor and the public were all against him, convinced that he was guilty all around. Capone was “public enemy number one” and they had to find something to pin on him. They had to do it by twisting and amending existing laws because corrupted police and justice systems were bought by him in traditional circumstances.

Prosecuting Capone made legal processes harder do defend from and, that’s the point here, made petty crimes punishable with long sentences so they could be used as tools to put in jail whoever the ‘system’ wants to pull off of the streets.

Was Capone a monster? Most probably yes. In fact I have no doubt he was. But underpaid policemen taking bribes make the police system monstrous too. If you don’t want to pluck the rotten apples…

Flash-forward to Brazil 2017. I have used Al Capone as the example because the Capone analogy has been often used by right wing people around here to justify what has been done to Lula so far. In fact, I myself believe that the analogy sticks, with only one observation needed:

Just because two different people come under similar situations, it doesn’t follow that they are in any way equivalent. There’s a Wikipedia page explaining why this is wrong. In fact, claiming that is just like saying that if A has gone from Miami to Washington after a stop in New Jersey, anyone in New Jersey who is going to Washington has come from Miami…

In order to prosecute, try, sentence and imprison key members of the Workers’ Party — thus destroying their political image and disabling them from running in subsequent elections — more or less the same strategies employed against Capone have been used:

  1. Introduction of new legislation. Capone was prosecuted for tax evasion. A crime invented to suit him. During the Mensalão scandal our Supreme Court judges introduced, for the first time in our country, the theory here termed Domínio do Fato (which I haven’t found in English or German sources, but is said to mean “Control of Circumstances” or sth like that). In subsequent phases of prosecution against the Workers’ Party, plea bargain was also used for the first time in Brazilian law.
  2. Preconditioned judges. James Herbert Wilkerson was adversarial to Capone all along the process, putting hurdles before his attempt to a plea bargain and accepting controversial statements by witnesses.
  3. Tolerance of crimes and misdemeanours committed by other parties (in Capone’s case, the corrupted judges and policemen).
  4. Limitation of scope. Capone was singled out as a scape goat because he flaunted too much his power, but other mob bosses remained powerful for decades. Perhaps some still are, but in the shadows. In Brazil, there is a very clear focus on the Workers’ Party and a determination to reach Lula.

I believe that these tactics were employed for three main reasons:

  1. They were learned from US intelligence instructors, well-read in American law.
  2. They worked.
  3. They can be used to create a sensation of guilt by association, when people realise they are the same used to “get” Capone.

Now we approach the answer you want.

The true criterion for property owning in Brazil is very clear:

Registrars usually have this on their walls. This one or another poster with the same sentences: Só é dono quem registra (“Only the one who registers is the owner”) or Quem não registra não é dono (“The one who doesn’t register is not the owner”).

This campaign is very old. Registry offices were very active about it because they profit from registering and because in Brazil private contracts are not legally binding. They are called contratos de gaveta (“contracts kept in a drawer”) and it is always costly and difficult to prove one of them is legitimate. The reasoning before the campaign is simple: even if you have a contrato de gaveta, the legal owner may sell the same property to someone else. Registering means taking legal possession of real estate.

This legal principle has its limitations, especially since front companies or people (which we call laranjas, “oranges”, for reasons I ignore) are, by their very own definition, not the legal owners of the property they wish to keep hidden.

However, putting down this principle is very dangerous because, remember, if registering a property is not enough to own it legally, then someone can take your property from you. The very foundation of the right to property is at stake.

We must find a way to reach front companies and people, of course. We could do it by associating their putative owners and their revenue. For instance, how can someone who barely owned shoes last year can now own $500,000 worth in machinery and rent a factory for $4,000 monthly, employing 50 people to produce goods which will be sold overseas? Do we need to take down registration of property to find evidence that the owner of this company is just a front for someone else? Do you think that confiscating this property, for not being legally earned, will hurt the true owner? or do you really think that the true owner will not be reached by the confiscation?

If all we want is to put an end to front companies and front people, we can do it using the existing laws. We don’t need to invent new legislation or to twist the interpretation of law.

Problem is: nobody wants to put an end to front companies or front people, just like the FBI didn’t act against corrupted policemen (there was one even in Elliot Ness’ “Untouchables”, but the case was hushed not to damage Ness’s reputation). What we want is to find a way to pin something on Mr Luís Inácio Lula da Silva and his cadre.

The legal principles used to prove Lula’s ownership of that flat or that cottage will never be used again, rest yourself assured. They were tailor-made for this case alone.