A democratic state of law is characterised by the existence of rigid limits to the exercise of power, including the judicial
authority. But in order to be able to condemn former President Luiz Inácio Lula da Silva, and thus, dismiss the main option of the progressive side from the 2018 presidential election of Brazil and the subsequent political scene, the Brazilian Judiciary has violated the limits of justice, epistemology and ethics. This is a typical case of a state action that does not respect the foundations of democratic legality.
This is not an isolated case; the cases of violation of strict legality in Brazil are not uncommon, to the detriment of those who, to the eyes of economic power are undesirable, and more specifically the poor and political enemies. Let us remember the procedure for dismissal of President Dilma Rousseff, sanctioned by the Supreme Court despite the absence of any ‘crime of responsibility’ (constitutional obligation for any dismissal of a president elected so democratically.) Let us not forget either other judicial proceedings concerning leaders of popular movements, whose fundamental rights and guarantees have not been respected, contrary to the constitutional and legal norms expected from any state action.
However, what really characterises the case of Lula, whether it concerns the judicial procedure or the illegitimate maintenance in prison of the former president, is the accumulation of atypical acts, and flagrant illegalities with persecutory intent committed by judicial institutions. All indications are that the Brazilian Judiciary and Public Prosecution have acted illegitimately in order to defend an alternative political project to that represented by former President Lula and his party.
Among the multiple illegalities committed against former President Lula da Silva, there have been explicit violations of both rules of procedure and those of substance, which must base the legitimacy of the application of a sentence to the accused of a violation of the criminal law. But that is not all; the statements made by military authorities (for some responding to the same values as those of the 1964 coup d’état) and the pressure from the economic groups controlling Brazilian media (contrary to the Workers Party project, that demands a minimum social control of media outlets, such as in the United States and England,) have pointed out that single imprisonment of the President was acceptable. All these are clear indicators that the sentence imposed on former President Lula da Silva was only a simulacrum hiding a prior political decision foreign to the law and democratic values. There is, therefore, no doubt that Lula da Silva is indeed a political prisoner.
It has been noted that, since the beginning of the criminal proceedings against the former president, there have been clear signals of violation of judicial impartiality. Impartiality is, by definition, synonymous with alienability; that is, judges cannot have personal interests related to the outcome of the trial, nor can they act in order to gain political, media, financial or social benefit from the case in question. Yet, Sergio Moro, author of the sentence condemning Lula, gained political, media and social profit from the cause he judged.
After becoming the hero for economic groups controlling the majority of the Brazilian media, Sergio Moro has been the guest of social events due to his role as judge of ‘Lula’s case,’ appearing alongside political opponents of Lula da Silva (as, for instance, the former presidential candidate Aécio Neves, accused of corruption, but still at liberty.) Sergio Moro has then assumed the position of Minister of Justice in the government of Jair Bolsonaro, main political beneficiary of the conviction of Lula da Silva. It is important to note the version reported by members of the Bolsonaro government, pointing out that the invitation to enter the executive charge would have been made since the election campaign.
But more than that, any representative of the Judiciary must approach a lawsuit in a situation of ignorance, without any conviction or certainty concerning the facts attributed to the accused. Roughly speaking, it can be said that in the Brazilian criminal process, the decision of an impartial judge is only made at the constitutionally adequate moment; that is to say at the end of the presentation of the final allegations by the parties. The judge must be able to modify his provisional impressions on the file until this final moment. Impartiality is, in fact, the proper condition for a just judgment. It is one of the two pillars of a democratic judicial structure. However, none of this has been found in the way ex-President Lula da Silva was tried for the case referred by the Judiciary.
It is enough to carefully read two judicial documents to realize, for instance, that Judge Sergio Moro, both in the presentation of the ‘evidence’ against the former president and for the first sentence of Lula da Silva, has from the beginning accepted as true the assumption of the accusation presented by the Federal Public Ministry (which for its part, had shaped the expectation of the holders of economic power as well as the prejudices of a part of society against a popular leader.) Sergio Moro has also confined himself to dealing with presumptions, prejudices, prior convictions, and fragile clues, to make them converge in a conviction of the accused, all this to the detriment of the facts and evidence presented during the criminal investigation. There has been ‘primacy of the hypothesis over the facts’, which is the reflection of an evident accusatory manifestation, in violation of the Brazilian constitutional provision regarding the indictment system, which requires a neutral posture from the judge and a separation between the functions of accusation and judgment.
There are numerous specific and well-identified examples showing that Judge Sergio Moro has proceeded in violation of the impartiality required on the part of the one who judges in a democratic judicial system. On several occasions, both before and after the conviction, Sergio Moro made it clear by public statements that he considered himself an opponent of the political project embodied by the accused. In the battle against this project, as in the attempt to influence public opinion, the action taken to avoid the secrecy of the investigation, (without the adoption of measures to prevent it) was crucial.
It was no surprise, therefore, to see Sergio Moro shortly after the former president’s conviction and the election of Lula da Silva’s main political opponent, leaving the judiciary to assume the position of Minister of Justice of the far-right government, headed by Jair Bolsonaro, who had promised to end the political party of Lula da Silva, and who just recently said he would do everything to keep Lula in prison.
The impartiality of the body responsible for judging is essential from the beginning to the end of the judicial process. But it did not happen like that with ‘Lula’s case,’ since at the end of the procedure, Judge Sergio Moro had a conduct defined by Brazilian law as a crime against the accused (he shared with the press, contrary to the legislation, the recording of a telephone call between former President Lula da Silva, and Dilma Rousseff.) If a judge unlawfully discloses the secret content of any criminal case in order to mobilise public opinion, cause prejudice to the accused, or prepare the acceptance of the decision he claims to try stopping (decision taken before the adequate moment,) it is evident that there is objectively noted bias. Whatever the democratic judicial system, this fact in itself would be enough to reject the judge due to partiality in the proceedings, but this was not the case in Brazil.
The best guarantee of impartiality during the proceedings is the inertia of the body in charge of the judgment, mainly because it is up to the parties (charge and accused) to choose the evidence they wish to present, as that ensures the needed distance with regard to the decision of judgment and justice itself. None of this was respected in the case against former president Lula da Silva. Whenever a judge abandons his inertia to join the Public Ministry, and proceed in the direction of the accusatory hypothesis, there is clearly a violation of impartiality. However, this violation of impartiality could have been made evident through the investigation of the cooperation relationship between the Public Ministry and Judge Sergio Moro throughout the trial. Sergio Moro has complimented himself on the ‘joint work’ done with the accusation in several public statements.
We can also mention the inquisitorial conduct of the former Judge Sergio Moro, who for several hours, asked questions to former president Lula da Silva (an elderly defendant, according to Brazilian law.) His goal was to ‘create’ contradictions or find evidence during the interrogation, lacking in the investigation. All of them are indicators of the partiality of the intervention of the Brazilian Judiciary.
But there is more than that. Other pronouncements by former Judge Sergio Moro clearly reveal that impartiality was violated on ‘Lula’s case.’ Sergio Moro took specific measures during his holidays (externalisation of the law) in order to make prevail his intentions (subjective partiality,) and keep the ex-president in prison. This was contrary to the decision of another magistrate, and in clear violation of the norms of competence (set of rules which allow the validation of the exercise of justice) and the constitutional guarantee of the natural judge.
Also, the decisions of the Federal Supreme Court preventing the former president from entering the Dilma Rousseff government and forbidding him to grant interviews before the President’s trial (a right guaranteed to various common law prisoners) clearly express a selectivity incompatible with the principle of impartiality.
It is important to remember that the legitimacy of legal action can only be based on the non-proximity of the judicial institution with particular interests, which ensures that decisions and/or possible restrictions on fundamental rights reflect the fair solution relevant to the criminal case. If there is not impartiality nor is there a real adversarial procedure, and also no respect for the corresponding legal process and the indictment system proves to be unviable. Without impartiality, the eventual judgment can only be an imposture, which is indeed the scene in ‘Lula’s case.’
It is important to note that various independent jurists, both Brazilian and foreign, who have had the opportunity to analyze all the evidence assembled against former President Lula da Silva, assert that there are not enough elements in order to condemn. The reading in particular of the sentence of ex-Judge Moro makes it possible to identify the use of sophisms, lies, presumptions, authoritarian ‘common sense,’ in order to justify the condemnation of the former president.
The reading of the sentence also shows that Sergio Moro not only violated the epistemological limits needed to validate a fact, but that he also constructed a sentence from a sort of ‘delusional certainty,’ which was manifested from the beginning of the proceedings and has no relation with the existing evidence in the documents. Among the absurdities of the probationary field is the priority given to what is defined as ‘rewarded denouncements,’ based on an agreement between accusers and convicts that transforms the values ‘truth’ and ‘freedom’ into bargaining objects. In exchange for freedom and, in certain cases, economic enjoyment of illegally acquired property, defendants (for some, unlawfully detained,) are led to make depositions that meet the expectations of the inquisitors in order to predispose them to the denunciation. That means statements that do not necessarily answer the truth value, but that confirm the prosecution’s assumptions. In the case of Lula da Silva, for instance, an ‘informer’ has presented various versions relating to a fact that turned him innocent, all rejected by the inquisitors, who waited to validate a new version that allowed them ‘to incriminate’ Lula.
It cannot be ignored that Lula da Silva was convicted of an ‘indeterminate fact,’ which means that the prosecution and the Judiciary have been unable to identify a specific act of corruption that would have been committed by Lula da Silva.
On the other hand, the Federal Regional Court of the 4th region was seised for the ‘confirmation’ of the sentence of the former President Lula da Silva, and showed obvious signs of violation of the impartiality required from the Judiciary of any judiciary democratic system. There were public statements by members of this court expressing their support for Sergio Moro’s decisions and positions even before the appeal was heard. Moreover, after Sergio Moro started to be portrayed as a hero by Brazilian media, several judges, counselors of appeal, and magistrates of the Courts of second instance adopted behaviours similar to those of former Judge Moro, in order to win the sympathy of the economic groups that allowed his political promotion. It must also be noted that Sergio Moro meant for many Brazilian judges a symbol of renewed social prestige and privileges that had been lost in the judicial career, especially under the governments of the Workers Party.
The Regional Federal Court has clearly shown its lack of impartiality in its haste to validate the conviction of Lula da Silva and thus to ban the Workers’ Party from presenting him as its presidential candidate. The reasonable time of a trial is a constitutional guarantee for the defendant and it is present in the Constitution as in international treaties, signed by Brazil. The ‘reasonable time’ principle states that the right of the accused (the one who is alleged to have committed a crime) has to be tried within a reasonable time; the necessary to ensure that the rights of the parties involved are reviewed without undue overflow. This is a right based on the duty of the State to pronounce on the judicial tutelage in a reasonable time. An atypical-length trial may characterise, beyond the violation of the constitutional guarantee, by a reasonable length of criminal proceedings, which is a strong indicator of judicial bias.
In the case of former President Lula da Silva, the violation of the guarantee of impartiality is perceived at the abnormal speed of judicial review of the appeal, which was crucial to prevent Lula da Silva’s candidacy for presidency and to confirm, at the same time, the prison sentence of the former president. In ‘Lula’s case,’ this excess of speed reveals the selectivity of an unequal, self-serving and partial procedure of the Brazilian Judiciary. The technical defense of former President Lula da Silva has mathematically demonstrated that it is humanly impossible to review all the evidence or even to read the arguments of the defense in the time between the presentation of arguments of the defense and the date fixed for the sentence, which ended up with the ‘confirmation’ of the conviction of Lula da Silva.
It is known that the effective exercise of the rights and guarantees of the accused requires time. The defendant requires a minimum of time, adequate to the exercise of the rights of defense, contradiction, debate on evidence, etc. That determines the duration of the criminal proceedings within or beyond the time necessary to ensure the cited fundamental rights and their respective guarantees, finishing by provoking the violation of each of these rights. In a similar way, a particular treatment given to a specific trial also violates the conformity of the legal process. In ‘Lula’s case,’ the former president was tried before other defendants who had been awaiting trial for longer or were in a judicial situation that demanded a pre-trial decision against the former president, hence giving an additional signal of lack of impartiality. With regard to the judgment of the Federal Regional Court, Lula was still free and the fact of his trial being reviewed before others affecting imprisoned defendants enjoying a legal priority is an additional indicator of selective treatment not compatible with the impartiality guarantee. This desire to speed up the judgment has also denied the validity of Article 616 of the Brazilian Code of Criminal Procedure in view of the refusal of further interrogations by the Federal Regional Court.
To summarize ‘Lula’s case,’ it can be said that the legal and regulatory standards were violated in order to speed up the procedure allowing Lula’s incarceration and prevent his candidacy, in clear violation of the guarantee of impartiality. It is no coincidence that one of the appeals judges responsible for the confirmation of the sentence against former President Lula da Silva, who had, in turn, showed his friendship with Sergio Moro, has been recently announced as probable magistrate of the Supreme Federal Court on appointment of president Jair Bolsonaro.
It should also be noted that the judgment of the High Court of Justice served to frame the handling of the injustices against Lula da Silva. It is enough to mention, for instance, that the magistrates responsible for the analysis of the appeal refused to pronounce on the certification, or not, of the analysis of all the evidence put forward against the former president, as they considered the sentence of the former president wrong. In other words, the same magistrates who acknowledged the existence of error in the application of the sentence declared that they could not pronounce on possible errors within the evaluation of evidence. Sometime before this judgment, characterised by a judicial omission that refused to remedy the violations of the fundamental rights of the former president, there were, once again, public statements from soldiers pointing out that the prison sentence of ex-president Lula had to be maintained.
Nor can we ignore the omission made by the Brazilian Supreme Federal Court to review the violation of the presumption of innocence, which bans incarceration before any final judicial decision as useless. Also, it refused to take into consideration Article 283 of the Brazilian Code of Criminal Procedure, which guarantees the convicted accused the right to await the judgment on appeal and prevents the immediate execution of the custodial sentence. In order to maintain the prison sentence of Lula da Silva, the Supreme Federal Court did not only violate the semantic limits of the legal text, but ruled out any possibility of considering judicial actions challenging such violations or omissions.
Many other nullities and illegalities have been presented by the defense of the former president, but have not been still considered. In order to keep Lula da Silva in prison, fundamental rights (such as the presumption of innocence) have been violated, case law has been altered and consecrated doctrines ignored. For all the cited reasons, the conviction and imprisonment of Lula da Silva cannot be defined otherwise except as a legal oddity and a political sentence incompatible with democracy.