On 26 October 2021, after six months of investigative procedures, a legislative inquiry committee in the Brazilian Senate presented a report charging President Jair Bolsonaro (along with some of his most committed supporters) not only with impeachable conducts, but also with ordinary crimes and possible crimes against humanity. Although it is unlikely that the committee’s report will trigger impeachment or lead to a criminal indictment of Bolsonaro before the end of his term, it has already played a fundamental truth-finding role. The mismanagement of the pandemic was well-known to the Brazilian public and to informed foreign observers. But the report exercises an important task of gathering evidence, making it public, and classifying the government’s conduct on the verge of an event that is likely to impose liability on Jair Bolsonaro and other government officials.
The legislative investigative committee ignited an important backlash against President Bolsonaro’s authoritarian policies in matters of public health. Probably the most serious finding is the unequivocal evidence that the government sought to achieve herd immunity through intentional contamination of the population, instead of vaccination. The evidence prompted the committee to conclude that crimes against humanity have been committed through the government’s response to the pandemic of COVID-19.
Structure and functions of the committee
The 1988 Constitution assigns a broad investigative function to the legislature. One of the most important specifications of this function is the power to create legislative investigative committees (comissões parlamentares de inquérito), or CPI for short. Article 58, § 3º, of the 1988 Constitution rules that, upon request of a minority of one third of the representatives of one of the Houses, a CPI must be convened to gather evidence and analyze the legality of certain facts.
Although President Jair Bolsonaro is supported by a large parliamentary allegiance, the harms resulting from the mismanagement of the COVID-19 pandemic raised the pressure upon the Federal Senate. The House Speaker was forced by a judicial decision to open the inquiry committee after more than one third of the legislators filed a request to open a CPI. Although the CPI does not have authority to impose penalties, its report will be sent to prosecutorial authorities with jurisdiction to press criminal or disciplinary charges against officials and private individuals who acted illegally in response to the pandemic.
The investigative committee worked from May 2021 until October 2021. Its composition mirrored the proportionality of the representation of all political parties in the Federal Senate, complying with Article 58, § 1º, of the 1988 Constitution. It ordered access to confidential data in 251 situations, received more than 70.000 documents with open access, and accessed 4.200.000 files containing confidential data. 61 witnesses have been heard, and 65 meetings have taken place. Furthermore, victims of unauthorized health interventions and experts in public health have testified. Given the breath of the investigation and the seriousness of the conclusions, it is fair to say that the legislative committee worked analogously to a truth commission in transitional periods.
The Head Prosecutor is the only official with jurisdiction to formally press charges against the president, while the Speaker of the House of Representatives is the only authority empowered to submit to the Plenary Section of the House of Representatives a petition for impeachment. Even though President Jair Bolsanaro has captured both offices, the CPI’s findings constitute an important backlash against the president. We will attempt to address, in the next sections, the report’s most important legal findings.
The shadow cabinet
The CPI concluded that there has been a shadow cabinet (gabinete paralelo), formed by doctors, entrepreneurs, and politicians that advised the president in his COVID-19 policies. The recommendations of this cabinet prevailed over the technical regulations issued by the Ministry of Health. The main commitment of the shadow cabinet was that herd immunity should be reached by the uncontrolled dissemination of the virus. According to the CPI’s report, the shadow cabinet acted to resist the usage of masks and to campaign for the ingestion of medicines without scientific efficacy, such as: chloroquine, ivermectin, azithromycin, and others – in a set of medicines that came to be known as the ‘kit-covid’.
Herd immunity and the so-called ‘precocious’ treatment
The reason Bolsonaro’s government push forward the idea of herd immunity by infection is because it insisted that the protection of health would not serve their goal preserving Brazil’s economy. According to the government, a higher value should be attributed to the former. The straightforward herd immunity approach was defended by the President in multiple pronouncements, internet videos, and even before the UN General Assembly. It was adopted by the government (under the advice of the shadow cabinet) before the development of vaccines and in opposition to the social distancing measures recommended by the WHO and subscribed by the Brazilian legislature.
The CPI found that the government endorsed a so called ‘precocious’ treatment, e.g. a pharmacological use of the abovementioned ‘kit-covid’, either in the early days of the disease or simply as a prevention against infection. Although at that time Donald Trump was an enthusiast of medicines such as ivermectin and hydroxychloroquine, there was no evidence that this set of medicines were effective against COVID-19. The president of the Brazilian National Health Regulatory Agency (ANVISA – Agência Nacional de Vigilância Sanitária), for instance, testified per the committee that at the time the agency was aware that there was no scientific evidence for the efficacy of those drugs, and that this position had been made public and clear.
In the late stage of the pandemic, the Ministry of Health published a note acknowledging that these drugs lack efficacy for hospitalized patients, but this acknowledgment came only after Brazil held one of the highest numbers of deaths by COVID-19 in the world. Even on this occasion, the Ministry did not abandon the so-called ‘precocious treatment’ and published instructions to doctors on how to prescribe these medicines in the early days of the disease. The CPI also reported an instance of interference in a technical organ of the Ministry of Health, which is responsible for new technologies against diseases. In effect, the publication of a study of that organ evidencing the lack of efficacy was halted by the government.
Two Ministers of Health have been dismissed for opposing the precocious treatment. The legislative committee concluded that the defense of the precocious treatment generated a false sense of security in the population, making them reluctant to resort to non-pharmacologic measures such as social distancing and the use of masks.
Objections to vaccines, delays to purchase them, and a corruption scheme
In addition to endorsing the general use of drugs without scientific evidence, the federal government, according to the CPI, deliberately delayed the acquisition of vaccines recommended by the WHO, declining several offers from vaccine producers. In addition, they attempted to impose barriers against the production and distribution of vaccines in the Brazilian territory.
One of the former Ministers of Health, General Eduardo Pazuello, was probably the main responsible for the delayed purchase of raw materials needed for the production of the vaccines of CoronaVac and Astrazeneca. Although these companies had agreements with Brazilian research institutes in Brazil to produce the vaccine in the country, the government raised several doubts about their efficacy and tried to undermine its licensing process.
The biggest resistance, however, is documented in the negotiation process with Pfizer for the acquisition of vaccines. According to a representative of the company, Pfizer made the first formal offer to the Brazilian government, to deliver 100 million doses of its vaccine immediately, as early as August 2020. Nonetheless, the Government ignored many communications with the vaccine supplier and declined several offers over a period of more than seven months. The vaccines were acquired only during the second wave of the pandemic, when the number of deaths per day was three times higher than the death-rate of the peak of the first wave. Similar difficulties appeared in the government negotiation processes with Moderna and Jansen.
Oddly, the negotiation process to purchase Covaxin, a vaccine less effective but in average 50% more expensive than its competitors (and over 200% above the price paid by the government for the AstraZeneca Covishield vaccine), was concluded very quickly. The CPI found evidence of a corruption scheme in this last case, with President Bolsonaro being expressly advised to investigate the case by a federal legislator and failing to report to the Federal Police. The findings of the CPI led to the suspension of the payment to the supplier of the overpriced Covaxin vaccine and to the annulment the deal.
The crisis in the state of Amazonas
Another scandal investigated by the legislative CPI was the failure in the supply of oxygen cylinders in the state of Amazonas, during some of the most dramatic days of the pandemic. The local system of health was about to collapse in December 2020 due to another wave of infections. In January 2021, the lack of oxygen in hospitals was leading to many deaths by suffocation, including of patients suffering from other diseases and newly born children.
The committee found that federal and state authorities failed to take immediate action to address the failure in the supply of oxygen amid the pandemic. The government opted, instead, to provide, once again, the ineffective ‘precocious treatment’.
Indigenous people and the pandemic
The CPI found, in addition, that the government’s response to COVID-19 has been especially harmful to indigenous populations. The CPI collected several studies showing that the vulnerability of indigenous people to COVID-19 was much greater in comparison with the non-indigenous people. The CPI interpreted the actions and omissions of the federal government as crimes of extermination and crimes against humanity: the whole indigenous population was generally and systematically infected with the virus, based on the assumption that herd immunity would naturally emerge. Statutory obligations, approved by Congress despite Bolsonaro’s vetoes, aimed at protecting these populations. Nonetheless, these measures have been ignored by the government and substituted by the distribution of the ‘kit-covid’. In response to these omissions, the Federal Supreme Court interfered to impose on the government a positive obligation to apply an emergency plan approved by Congress, but the court’s tools to enforce this judicial decision were very limited.
The Prevent Senior case
The committee also assessed the conduct of private agents who helped Bolsonaro to conceive and execute his governmental response to COVID-19, and found appalling evidence that a private healthcare provided, Prevent Senior, was making unethical experiments with human beings to test the efficacy of the kit-Covid.
Prevent Senior is healthcare company created in São Paulo in the 1990s. It comprises 3.000 doctors, 12.000 employees, and 550.000 clients. Since March 2020, the company began to apply to its clients the precocious treatment. As the company attended mainly elderly people, it was pressed by the high number of deaths related to COVID-19. Members of the company approached the shadow cabinet of the federal government after the Minister of Health at that time, Luís Henrique Mandetta (soon fired by Bolsonaro), publicly criticized the company’s approach. Prevent Senior defended the pursuit of herd immunity by infection and, in addition, conducted informal studies described as an ‘observational monitoring’ on the usage of the medicines of the precocious treatment. It lacked, however, any authorization from a proper ethical board and did not adopt an adequate scientific methodology. The experiment with 630 patients was classified by foreign experts as ‘atrocious’ and ‘terrible science’. At least nine deaths occurred and have not been reported in the results of the ‘study’. Moreover, at least one person who died in these experiments was not previously consulted to express her consent in written form.
Although the ‘observational monitoring’ was halted at some point, the company kept using the precocious treatment and sent to its patients’ residences packages of drugs of the ‘kit-covid’. Doctors that refused to follow the company’s protocol were threatened with dismissal. One of the doctors that defended the precocious treatment was infected by COVID-19 and interned in one of Prevent Senior’s hospitals. He was treated with the ‘kit-covid’ and submitted to twenty sessions of ‘rectal ozone therapy’. Nonetheless, Prevent Senior failed to report in his death certificate that he was infected with COVID-19.
The legal classifications adopted by the legislative committee
To legally classify the broad range of conducts described in the report, the CPI, firstly, referred to several provisions of the Brazilian Criminal Code: homicide (Article 121); danger to life or health (Article 132); epidemic (Article 267); infraction of sanitary preventive measures (Article 268); incitation to crime (Article 286); ideological falsehood (Article 299); malfeasance (Article 319); and several others. The report also makes reference to impeachable offenses described in the 1988 Constitution and other statutory provisions. Nonetheless, probably the most important conclusion was the identification of the commitment of crimes against humanity (Article 7, number 1, ‘k’, of the Rome Statute – inhuman acts that cause suffering or seriously affect physical integrity and health, as also the crimes of extermination and persecution against identifiable groups or collectivities).
Proposals of indictment
Although the CPI does not have, by itself, powers to press charges, it recommended, in the report, that the competent authorities do so. In the end, the CPI accused 78 people and recommended prosecutors to indict them (a summary can be found here). In the eyes of the CPI, President Bolsonaro would have committed 7 crimes provisioned in the Brazilian Criminal Code, 3 crimes against humanity and 2 impeachable offenses. 4 current Ministers and 2 former Ministers were also accused of several crimes. Bolsonaro’s three sons (one senator, one federal deputy and one local councilor) have been accused of inciting crimes. The committee also suggested the indictment of 5 other federal representatives. In addition, 15 businessmen, 6 digital influencers, and 15 doctors were mentioned in the list of proposals for indictment.
Measures beyond the legislative committee
The legislative committee has sent its report to the Prosecutor-General of the Republic and to federal and state prosecutors. It also demanded further procedures from the Audit Courts of the Union, the Federal Medicine Council, and the Revenue Service.
Furthermore, the committee made several recommendations for bills, proposals, and reforms. Firstly, it prompted the National Congress to deliberate and approve proposals to limit the spread of false information, thereby creating forms of accountability for individuals and platforms. The committee also suggested modifications in criminal definitions that involve infractions committed during a situation of a public health calamity. Moreover, it recommended the criminalization of the crime of extermination in Brazilian domestic legislation. Improvements in the social security system and in the healthcare system also appear as recommendations in the report. Reforms to the system of accountability, both for crimes and impeachable offenses, were also suggested as the result of the mismanagement of the pandemic. For instance, the CPI concluded that the lack of accountability could be addressed, for instance, by instituting a deadline for the speaker of the Chamber of Deputies to decide whether to trigger impeachment procedures.
In concluding: more chances of accountability?
Will Jair Bolsonaro be held accountable? It does not look likely for the short term. Bolsonaro was able to forge an allegiance with a team of legislators who prefer to wait for the 2020 elections to make changes to the executive office, and it is unlikely that an impeachment will happen. The Prosecutor-General of the Republic, in turn, appears to be unwilling to act in response to the CPI’s report. The Prosecutor General is seen by most lawyers and politicians in Brazil as an important ally of the government and a committed Bolsonarist. What seems to be more possible, for now, is that other prosecutors bring criminal lawsuits against other authorities and individuals, and that these procedures strengthen accusations that may be pressed against Bolsonaro if he leaves office in 2023. Nonetheless, the political significance of the report, and its potential to enhance resistance against Bolsonarism, is remarkable. Consequently, there is reason to be relatively optimistic about the next presidential elections.