The Brazilian prosecutor handling the case against former Olympic Council of Ireland president Pat Hickey has accused him of using the Brazil proceedings as an excuse to refuse co-operation with Irish inquiries.
Prosecutor Marcos Kac rejected Mr Hickey's claims that he could not co-operate with an Oireachtas committee inquiry into the 2016 Rio Olympic games ticketing controversy, or the recently published report by Mr Justice Carroll Moran into the affair, because that could prejudice his Brazilian case.
“I’m sure Irish law has the right to silence? But, he is not using that right. He’s saying he can’t talk because of Brazil. This doesn’t exist,” said the prosecutor, who said he had not yet read Mr Justice Moran’s report.
Newspaper coverage about alleged criminal activity by anyone could, perhaps, prompt criminal investigations, the Brazilian prosecutor said, but it could not be used “to condemn someone on the basis of a report, it’s impossible”.
"Evidence is never based on media reports," Mr Kac said. Speaking to The Irish Times in his Rio de Janeiro office he said Mr Hickey is trying "to play the role of the underdog".
Mr Hickey, who learned this week that the Olympic Council of Ireland does not want him back, has been charged with ticket-touting, criminal organisation, larceny, ambush marketing, money laundering and tax evasion in Brazil. He was arrested in Rio at the start of the games in August 2016 but is now back in Ireland on bail pending the hearing of his case.
He denies all accusations.
Rejected claims
The prosecutor also rejected claims made by Mr Hickey’s legal team that the Irishman could face 44 years in jail if convicted: “Someone could have taken the sentences and added them up. I never said that at any stage,” he said.
If convicted of each, or any of the allegations, the former OCI president would receive minimum sentencing for each, or any of them, since he does not have a criminal record in Brazil, the prosecutor predicted.
Using the example of larceny, which carries a penalty of between one and five years in Brazil, Mr Kac explained: "He [Pat Hickey] doesn't have what we call here folha de antecedente (criminal record); so, it would be one year, not five."
Mr Kac was unable to indicate when Mr Hickey’s case would go to trial, though he said there would not be a grand jury hearing.
The case is currently with Justice Guilherme Schilling Pollo Duarte, in Rio's Criminal Court. "I'm not sure for what motive the case has not come back to me. I asked about it recently, but they haven't been able to tell me," Mr Kac said.
Mr Kac questioned assertions made by Mr Hickey’s Irish legal team that their client need not return to Rio to participate in legal proceedings and could instead give sworn testimony by video-link.
Video conferencing is possible during Brazil cases, he said, but this is not what Mr Hickey had agreed to when he signed his bail agreement that allowed him to go home, on payment of a bond of BRL$1.5 million (€410,000).
“There is no such thing as written testimony in Brazil. Video-conferencing is possible, but that is not what he signed. He signed a document committing to appear in front of the court any time he is asked to.”
Bond payment
The prosecutor said Mr Hickey would lose his bond payment if he did not appear when requested by the courts. Ultimately, the judge can decide if video conferencing is acceptable to the court.
“In Brazil, interrogation is a right of his, not an obligation. He could easily come here and say, “No, I’m not saying anything”. But, independent of whether he chooses to maintain silence or not, if he does not appear, we will ask for the loss of the bond. That’s a fact.”
The prosecutor rejected Mr Hickey’s assertion that a Brazilian judge had said he should never have been arrested, or held in prison: “The judge did not say this at any time. I was the one who decided to release him on bail. The judge acted on my advice.
“Brazilian legislation is not like legislation in the US, unfortunately, if it was the case that he was imprisoned in the US, he’d still be there today. Even on bail, he’d have had to remain on North American soil.”
Franklin Gomes, lawyer for Kevin Mallon, the other Irish man arrested during the Rio Olympic Games last year, has complained that this particular prosecutor should not be responsible for the case.
“The case was with another prosecutor initially, then, in the middle of the process, Kac took it on.”
Mr Gomes claims that this caused undue delays with the proceedings of the case, and that this had “tremendously prejudiced” his client.
On-call prosecutor
Responding, Mr Kac said the case was first handled by an on-call prosecutor, as is always the case with large events. Then, as per normal, the case was passed to him. “It came to me because I am the prosecutor responsible for processes involving large events.
“I didn’t take anything from anyone,” he said, adding that, if anything, he had speeded up the cases, by joining them together, into one legal process. “It came to me as two accusation, two processes.
“I joined the two into one because both deal with the same facts. The evidence is the same. In truth, contrary to what he is saying, this doesn’t delay the process, it speeds up the process,” he said.
Mr Gomes is fighting at the level of the Supreme Court in Brasilia to have charges against his client shelved, for what he says is a "complete lack of evidence".
Mr Kac said “that’s the work of a lawyer, to say his client is innocent. If he didn’t say that, he’s not a lawyer. I’m accustomed to this type of accusation. The evidence for each accusation is very clearly documented in the process.”