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Lula is Free: The Brazilian Supreme Court’s Habeas Decision and the 2022 Election

Felipe Oliveira de Sousa, Center for Law, Behaviour and Cognition (CLBC), Ruhr-Universität Bochum

On March 8, 2021, Judge Edson Fachin from the Brazilian Supreme Court (STF) made a decision that might decisively affect the course of the next presidential elections in Brazil, in 2022. Judge Fachin ordered the annulment of all decisions taken on four criminal procedures concluded against former President Luiz Inacio Lula da Silva. As a consequence, all the decisions connected to those procedures are now rendered void. This decision is causing intense debate in Brazilian media and social networks, and for a good reason. Former President Lula was convicted on four occasions, all of which were confirmed by a second instance. Judge Fachin’s decision determined that all these convictions are void, and that the cases must be re-initiated and judged anew. On top of its immediate legal consequences, this decision is likely to have important political implications, as it also frees former President Lula from ineligibility to run for public office.

Lula was accused of leading a massive corruption scheme within public institutions in Brazil, with questionable political and financial aims (see, e.g. penal action n. 5046512-94.2016.4.04.7000/PR). The four convictions were a result of the Car-Wash Operation (Operacao Lava-Jato), a concerted operation involving members of the Federal Police, public prosecutors, and other members of the Brazilian justice system originally based in the city of Curitiba that unveiled a massive corruption scheme in important public companies in Brazil – such as Petrobras –, involving dozens of Brazilian politicians and businessmen. A central figure in the operation was Federal Judge Sergio Moro, who occupied the 13th Vara Federal of Curitiba at the time (a section of the Federal Justice located at the state of Parana, Brazil). It was Judge Moro who judged and convicted former President Lula in the first instance in all four criminal cases that have now been annulled by Judge Fachin’s decision.

In Judge Fachin’s evaluation, Judge Moro lacked jurisdiction to decide those cases. Fachin’s argument builds upon the decision taken by the STF’s Plenum in September 2015 (INQ 4.130 QO), in which, for a number of reasons, the Tribunal decided to delimit the competence of the 13th Vara Federal of Curitiba to only those cases related to allegations of fraud and embezzlement regarding Petrobras (p. 40). In Fachin’s opinion, the cases decided by Judge Moro against Lula carried no direct relation with the corruption scheme regarding Petrobras (p. 43-44), and therefore there was no reason why the STF’s decision should not extend to those cases as well. Were this not the case, it would lead, in Fachin’s view, to a violation of the requirement to give analogous responses to analogous cases. Fachin notes that the accusations raised against former President Lula were related to various other public companies apart from Petrobras (p. 30). He also stresses that, during the Car-Wash Operation, many legal proceedings were moved away from the 13th Vara Federal of Curitiba for that very reason, and that, as a matter of consistency, the same should have been done in relation to the cases against former President Lula. For these reasons, Fachin concluded that Judge Moro was not competent to decide those cases (p. 40). He added that this decision coheres with the majoritarian understanding that gradually took shape in the STF and that is now consolidated (p. 1).

This is the first time that a request from former President Lula’s defense lawyers about the jurisdiction of the 13th Vara Federal of Curitiba has been analyzed by the STF. The decision was made in the context of an habeas corpus requested on November 3, 2020.

From a political perspective, Judge Fachin’s decision is likely to raise unrest in the political world in Brazil and to reshape any existing expectations in relation to the next presidential race in 2022. According to the so-called “Lei da Ficha Limpa”, a criminal conviction confirmed in the second instance makes a person ineligible for running for any public office. With the annulment of the four decisions convicting former President Lula, there are currently no legal barriers to his candidacy in the next presidential elections. Claims are already being made that, though legally consistent, the decision comes too late. Its neutrality is also being questioned, despite what Fachin stated in the judgment: “In the context of political macro-corruption, as important as being impartial is to be politically neutral [apartidário]” (p. 23). In the media, it is being claimed that the decision is both an attempt to save the Car-Wash Operation and to free former Federal Judge Moro from having his reputation put into question. According to Fachin’s decision, all ten habeas corpus writs requested by former President Lula’s defense lawyers (and which are still pending final analysis in the STF) have now become moot. One of them, related to an ongoing judgment in the STF, directly questioned Judge Moro’s lack of impartiality while judging those cases. For supporters of this view, Judge Fachin’s decision was essentially a strategic move aimed at preventing the STF from passing judgment on Judge Moro’s alleged lack of impartiality, as this could hinder Moro’s possible candidacy in the next presidential elections. Whether true or not, one day after Fachin’s decision was made, the second chamber of Brazilian STF decided to proceed and is currently assessing Judge Moro’s alleged lack of impartiality in the cases against former President Lula. A final decision has still to be taken.

Judge Moro became a symbol of the fight against corruption in Brazil after convicting former President Lula and a number of other well-known politicians and businessmen. He then became the Minister of Justice of current President Bolsonaro, but soon resigned after an episode in which he publicly accused the current President of illegally interfering in the Federal Police in an attempt to stop investigations into one of the President’s sons, related to money laundering. To the press, then Minister Moro claimed that, on top of the broken promises the President had made to him, he was not willing to participate in questionable practices and yield to attempts at intimidation, all of which suggested corruption within the new administration. He accused President Bolsonaro of using a very similar type of corrupt practice that he himself strongly opposed in the 2018 presidential campaign.

At the moment, it is hard to make any safe predictions. A few days ago, Judge Fachin’s decision has been the object of appeal in the STF’s Plenum. Even though the appeal has not yet been analyzed, given the Tribunal’s recent decisions, it is unlikely that Fachin’s decision will be overturned. As noted above, Judge Fachin’s decision orders that all four cases be judged again from the very beginning (the cases are currently being randomly assigned to four federal judges in Brazil). An interesting question is whether new evidence might be admitted in the new judgments. According to Fachin’s decision, it might, as this decision lies with the competent judge on the case. Not so long ago, due to a hacking attack, a series of private conversations between Judge Moro and the public prosecutors involved in President Lula’s case came to public attention, indicating that a set of irregularities might have happened during the cases all along, starting as early as the investigatory proceedings. Due to the slow speed of Brazilian justice system, it is unlikely that these cases would be judged and confirmed in the second instance until after the next presidential elections. There is even a real possibility, due to technicalities of Brazilian criminal legislation, that they will be time barred.

How all this plays out in the next weeks and months might have a decisive influence on what is going to happen in the next presidential elections. This decision comes when Brazil is the focus of attention for being the epicenter of the pandemic crisis worldwide, seeing death rates rampantly increase, and the current federal government – which is against lockdowns, masks, and whose leader travels around the country promoting public gatherings everywhere he goes – is having a hard time dealing with the crisis, as well as fighting to stop the economy from going down the drain. The 2022 presidential campaign in Brazil has already begun.

Suggested citation: Felipe Oliveira de Sousa, Lula is Free: The Brazilian Supreme Court’s Habeas Decision and the 2022 Election, Int’l J. Const. L. Blog, Mar. 17, 2021, at: http://www.iconnectblog.com/2021/03/lula-is-free-the-brazilian-supreme-courts-habeas-decision-and-the-2022-election/

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Published on March 17, 2021
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