Hickey Case Highlights Brazilian, Irish Legal Differences

(ATR) Differences in the Brazilian and Irish legal systems may provide clues for Patrick Hickey’s trial.

Around the Rings spoke with lawyers in Brazil and Ireland along with case prosecutor Marcos Kac to understand the systems surrounding the multi-national affair. Hickey’s legal team did not return requests for comment for this report.

Hickey was arrested on Aug. 17 during the 2016 Olympic Games on three charges: selling tickets at higher prices than face value, forming a cartel, and illegally marketing the Rio Olympics. His case has been processed by a special court formed for investigated crimes associated with the 2016 Olympics. In addition to Hickey, Kevin Mallon, an executive for sport hospitality company THG, was arrested for selling inflated hospitality packages with tickets allocated to the Olympic Council of Ireland. THG was the previous Authorized Ticket Reseller for the OCI, but was not selected to perform duties for the OCI in Rio. Brazilian authorities say Hickey worked with Mallon’s superior and owner of THG Marcus Evans to run the illegal ticketing scheme.

After his arrest Hickey spent time in Bangu prison in Rio de Janeiro. He was released on Aug. 29 having spent nine days in jail. A judge ruled that none of the crimes Hickey was being charged for would land him in a maximum security prison, but his passport was confiscated as he awaited trial. On Dec. 14 Hickey received his passport back, after a Brazilian judged ruled Hickey pay bail of $439,000, so he could return to Ireland for medical reasons. The Association of National Olympic Committees, of which Hickey was a vice-president, loaned the money to make bail "on humanitarian grounds."

Before leaving Brazil, Hickey signed an agreement pledging cooperation with the ongoing case, and accepting all charges if he does not return to testify. In a statement after returning to Europe, Hickey said he would fight all the charges against him.

Ireland, unlike Brazil, has a legal system based in common law. That means decisions taken in the system are those based on judicial precedent rather than on statues. While some of the charges against Hickey, such as forming a cartel, have precedent in Ireland, others, such as ticket touting, do not.

Ireland has no formal law against ticket touting, the main charge against Hickey. This, according to Ivana Bacik, a professor at Trinity College Law School in Dublin, would have to be considered if extradition is sought for Hickey.

"The Brazilian authorities must speak to the Irish courts to initiate the process," Bacik said to ATR. "It is a judicial process. There is a range of criteria [that would have to be considered]."

That criteria includes the crimes committed, the length of sentences, potential punishment, and where the crimes fit within the Irish legal system Bacik said. Since there is no formal extradition treaty between Ireland and Brazil, it would differ from the codified laws within the framework of the European Union. Bacik says the extradition laws in Ireland are fairly "strict" but speculating on what would happen in a hypothetical request is impossible.

Kac, who previously told ATR that Hickey’s case would most likely take place in early 2017, remains focused on bringing the trial to completion. The cooperation agreement Hickey signed before returning home guarantees the trial’s continuation. José Renato Bernardes da Costa, a public defender from the State of Bahia, previously told ATR that without that guarantee "it would be virtually impossible to proceed" with the trial if Hickey chose not to return to Brazil.

When asked if his office had considered extraditing Hickey if he were not to return to testify, Kac said to ATR, "I do not think this is a hypothesis at the moment."

Brazil’s legal system operates under a civil law code. This means that laws which are codified contain a range of punishments in the language. Judges then have the authority to hand out different punishments within the range.

In the ongoing case, Prosecutor Kac has outlined a number of laws for which he believes Hickey is guilty, based on the evidence presented by the Rio civil police. Before the case could go to trial, a judge reviewed the charges presented by Kac and accepted hearing the case. In Brazil, prosecutors and judges work very closely throughout the case, many times with judges requesting more information from prosecutors to strengthen the case before accepting charges.

Cláudio Schefer, a criminal attorney based in Sao Paulo, told ATR that most actors in the Brazilian legal system are honest, but it is still a system coming into its own. Brazil remains a relatively new democracy, having been freed from a military dictatorship in 1985. The current constitution was passed in 1988. As a result, most institutions are very young, and working through systemic issues.

Schefer says that the issues the Brazilian system faces are overly strict adherence to penalties, and sometimes a presumption of guilt over innocence. Schefer also describes a system that, until recent reforms, allowed for rich and powerful people to clog the system with appeals to keep out of prison, while disenfranchised people were punished disproportionately for crimes committed.

"Brazil in recent years has put many powerful and rich in jail; we are in a process of perfecting [our] democracy," Schefer told ATR. "Our constitution is good, just like our procedural system, but justice is still slow and many [of the] powerful fail to go to jail because of this slowness."

Schefer says that Hickey will have three opportunities to appeal if he is convicted. Unlike in the past, defendants who are convicted must begin serving prison sentences after the first appeal, a reform made to prevent wealthy individuals from skirting jail time. Many of these reforms have been put into practice, as executives prosecuted in the Lava Jato corruption scandal have cases working through the legal system.

Hickey and his co-defendants are charged with breaking some laws passed by Brazil in recent years in anticipation of the 2014 FIFA World Cup and the 2016 Summer Olympics. The ticketing touting law was part of a 2003 law that was updated in 2010, and laws protecting marketing for the Olympics were passed in May 2016.

Brazilian authorities saw a similar case to Hickey’s during the 2014 World Cup, when James Sinton was arrested for selling marked up World Cup tickets. Sinton was the then-chief executive for THG, the same company involved in the current case, but left Brazil before his case was heard avoiding trial.

During the World Cup, Brazilian authorities also arrested Raymond Whalen, a British executive, over illegal ticket sales. Whelan was released on bail with his passport, but a Rio State Court dropped the case against him a year later, citing hastily drawn up charges by the police.

Hickey, like other members of the Olympic family, says the charges levied against him are false. Although he signed the cooperation agreement, there is no legal document binding Hickey to return to Brazil to testify in his case. If Hickey resumes his IOC membership, he could face an IOC Ethics Commission investigation on top of the ongoing trial.

Hickey will retain his legal team even as he is scheduled for medical treatment in Ireland. Kac has said to Irish media that the case could take up to a year after it finally begins. Kac’s office has a plan if the trial results in a conviction and Hickey is unwilling to return to Brazil: a red notice from Interpol International.

Even with the potential aid of international authorities, Kac admitted to ATR "there is no guarantee," for Hickey’s return. When asked if he was confident in seeing Hickey testify in Rio for his case, Kac answered rather bluntly: "No."

Written by Aaron Bauer

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