Many in the legal profession in Brazil argue that Judge Moro’s Condemnation of Lula is controversial. So why is this not being taken seriously by the media?
by Marianna T. Noviello
On 12th July, former President Luís Inácio Lula da Silva was condemned to prison for 9 years 6 months.
The former union leader who enchanted the world, the president who managed to bring millions of people out of poverty and into the middle classes was condemned for passive corruption.
Lula was the president who went around the world talking about the importance of ending poverty and hunger, but according to a Brazilian judge, he was also the ringleader of a criminal gang that cost Brazil billions of dollars.
Brazil was booming when President Lula was in power. It discovered oil in the pre-salt layers under the Brazilian seas and Lula determined that taxation from its exploration should go to education and health.
The country consolidated trade with many countries around the world, promoted South-South relations, developed a privileged relationship with Africa and strengthened its ties with Latin America.
Brazil was one of the leading members of the G20, highlighting the importance of the developing countries and, with Russia, China, India and South Africa, created the Brics.
It was also during Lula’s presidency that Brazil won the right to host both the World Cup and the Olympics.
But President Lula is corrupt, he must be, Sérgio Moro, the celebrated first instance judge said so.
In fact, all of Lula’s party, the Workers’ Party, seems a little dodgy, right? There was that female President, the one that came after Lula, Dilma Rousseff. Was she not ousted during the corruption scandals that affected the Brazilian state oil company, Petrobrás?
With a few exceptions, what we see in the foreign press is that Brazil is in trouble. Despite their fleeting success, the Workers’ Party and former President Lula had a dark secret: corruption.
Same old, same old. What do we expect from Latin America anyway other than dodgy left or right-wing dictators, corrupt politicians and Banana Republics?
Except that the story is a little more complex.
This month Brazil saw two significant legal events take place, both on the same day, Friday 11th August.
The first was the launch of a book entitled “Comentários a uma Sentença Anunciada: o processo Lula” [Commentaries on a Pre-announced Condemnation: the Lula Case].
It is edited by four specialists in international law and human rights: Carol Proner, Giselle Cittadino, Gisele Ricobom and João Ricardo Dornelles and gathers together 100 articles by 122 academics, many of whom are experts on criminal law.
In the book, they comment on Lula’s sentence delivered by First Instance Judge, Sérgio Moro, which they argue suffers from serious flaws.
The most important amongst these flaws is a lack of evidence. The authors claim that the public prosecutors did not manage to prove that Lula was involved in corruption and yet Judge Moro still condemned Lula.
Indeed, the case was mainly based on the ownership of a triplex apartment which was never Lula’s and was given as collateral for a loan by the civil construction company OAS.
In other words, how can OAS give as guarantee for a loan someone else’s property?
Even though, Brazilian law allows judges to be both investigating and trial judges, the authors argue that Sergío Moro over-stepped his remit, acting as prosecutor.
One of the editors of the book, Carol Proner , stated that, as well as having the judge acting as an accuser, the sentence did not follow due legal process.
Many of the book’s writers are members a group entitled “Brazilian Front of Legal Experts for Democracy”, formed by legal academics, judges, public prosecutors and lawyers who were unhappy about the then imminent ‘impeachment’ of President Dilma Rousseff.
The group remains active after impeachment, fighting for the re-establishment of democracy in Brazil and speaking out against the illegalities that have been occurring since then.
Indeed, some of Brazil’s most eminent legal experts are severe critics of both Rousseff’s impeachment and the Lava Jato (Car Wash) Operation.
They include renowned names in Brazilian law such as Fábio Konder Comparato and Dalmo Dallari, both emeritus professors at the prestigious São Paulo University, USP, and Marcelo Lavenère, former head of Brazil’s Bar Association who was also one of the authors of the 1992 impeachment of former President Fernando Collor.
The second significant event took place at the Federal University of Paraná, in Curitiba, the same city where the Car Wash trials are taking place.
This event also promoted by members of the legal profession, the “Popular Tribunal: the Car Wash Operation on trial”.
The idea was to put the controversial Operation in the dock.
Tânia Mandarino , one of the coordinators of the event and member of another group of legal professionals formed to fight for Brazilian democracy, “Lawyers for Democracy”, said that the aim of the Tribunal was to debate the Car Wash Operation. More specifically, to discuss whether its excesses are justified.
Dilma Rousseff’s former Minister of Justice and Public Prosecutor, Eugênio Aragão acted as the prosecutor of the Operation and renowned Brazilian criminal lawyer Antonio Carlos de Almeida Castro as the defence.
The simulated trial has a symbolic significance in bringing to light controversial points in the Operation.
The legal experts who participated in the simulated trial highlight some of the elements they believe to be excessive: the overuse of preventive imprisonment, the criminalisation of politics and of defence lawyers, and turning criminal law into a spectacle.
Indeed, many legal experts think that in these prominent cases, Brazilian justice is not just unduly influenced by the media, but sometimes works hand-in-hand with it.
One of the characteristics of the Car Wash Operation has been frequent leaks to the media, sometimes even before the parties involved are contacted.
This has been a common complaint made by Lula’s defence.
Carol Proner claims that a state of exception has been established in Brazil and that individual rights are being undermined, “the struggle against corruption does not justify a disregard for human rights”, she said in a recent interview about the book launch.
And it is not only Brazilian legal experts who feel uncomfortable with the goings on in Brazil.
In an interview to Deutsche Welle Brasil, Herta Däubler-Gmelin, former German Minister of Justice and professor at the Free University of Berlin, said that the current trend of Brazilian judges interfering in politics would be a total “no-no” in Germany.
The renowned Italian legal academic Luigi Ferrajoli also condemned the methods used by the Car Wash Operation.
Ferrajoli calls the Operation a spectacular mediatic persecution. He also claims that the impeachment of Dilma Rousseff contained obvious legal weaknesses.
Journalists and their media bosses have the right to argue that the legal processes taking place in Brazil are uncovering political wrongdoings and that, eventually, this will bring benefits to the Brazilian political system and democracy.
However, any serious media organisation has the duty to report on the controversies that do exist. The Car Wash Operation has always been seen as polemical, no less so by the legal profession.
It is not just a handful of experts that believe that all is not right with the Brazilian judiciary at present. Many prominent and respected academics are dissatisfied with its developments.
Indeed, critics point to problems affecting all levels of the system, from the high percentage of prisoners still awaiting trial, to the (un)professional conduct of first instance judges, public prosecutors and even members of the Supreme Court.
The Brazilian media is notoriously partial. It is, therefore, absolutely essential that the foreign media do not merely rely on their Brazilian colleagues or just follow the Brazilian media agenda.
It is about time Brazil received the respect of the international media it deserves, instead of being treated as an inconsequential Banana Republic.