And the political execration of Lula via the judiciary goes on…

By Mariana T Noviello

The conviction of Brazil’s former President Lula da Silva was upheld by the appeal court in Porto Alegre. Jurists flag further legal inconsistencies.

All the three appeal judges of the 4th Regional Federal Court of Porto Alegre (TRF4) upheld the first level decision to convict former President Lula, increasing his sentence from over nine years to twelve years and one month.

Brazilian and international legal academics and professionals continue to criticize Lula’s treatment and have pointed out inconsistencies in the appeal procedure, adding to those in the original trial.

This only reinforces the argument that President Lula is being tried for political rather than legal reasons. In other words, he is a victim of so-called Lawfare.

I am sorry if we have to enter into legal details.

But if we do not do so, we will only hear, as we generally do in the media, that all the procedures are being followed appropriately, without any examination of their content.

As Pedro Serrano, Professor of Constitutional Law at the Catholic University of São Paulo, says: “Lula is being judged under criminal procedures of exception that only give an appearance of legality”.

It is, therefore, absolutely vital that we flag up the details that show that President Lula is being wrongfully tried.

Critics of the decision allege the following:

1) The Court could not demonstrate a “specific official act” that could be associated to the purported 3 Petrobrás (state oil company) contracts cited by the accusation.

Within Brazilian law, an “act” must have been practiced by a “public official” for someone to be accused of passive corruption.

Lula was, therefore, charged for “undetermined acts”. Furthermore, the whole affair is meant to have taken place a number of years after he left public office.

2) German jurist Roxin’s theory of “control over the act” (Tatherrschaft in German), conceived to address problems in German criminal law which made it difficult to prosecute Nazi war criminals, was inappropriately used to overcome the difficulties caused by the inability to demonstrate guilt – and to disregard proofs of Lula’s innocence.

This theory was also used during the so-called Mensalão (Cash for Votes) trials as a way to overcome the fact that there was not enough evidence (yes, here too!!) to incriminate certain individuals.

Critics argue that this principle was devised to ensure that all perpetrators are convicted, but not as a means to convict someone without proof, which is what happened during the Mensalão proceedings and now in Lula’s trial.

3) No funds or assets exchanged hands. Thus, charges of money laundering are legally impossible (Lula did not receive any funds and he does not – and has never owned the apartment ‘attributed’ to him).

4) Despite several requests by the defence, expert evidence analysis was not conducted.

According to article 158 of the Brazilian Criminal Procedure Code, financial crimes require that evidence of the type “follow the money” be demonstrated.

5) The maximum sentence was increased so as to ensure that the ‘crime’ would not go unpunished.

Given Lula’s age and the date the alleged “act of corruption” is meant to have occurred, if the sentence had remained at just over 9 years, Lula would not have had to serve it.

Lula needs to go to jail so that he is unable to run in the presidential elections in October this year.

Who is criticising the trials?

As well as renowned legal experts such as the Italian academic Luigi Ferrajoli and the former German Justice Minister, Herta Däubler-Gmelin, who have already denounced the process, over 100 jurists got together to write a book entitled “Comments on a Notorious Verdict: Lula’s Trial”, criticising Lula’s trial by first instance judge, Sérgio Moro“.

It was translated into English by Clacso (Latin American Council of Social Sciences) and can be downloaded for free at: https://www.clacso.org.ar/libreria-latinoamericana/libro_detalle.php?id_libro=1338&orden=&pageNum_rs_libros=0&totalRows_rs_libros=954

Lula’s case at the UN

Geoffrey Robertson, QC, Lula’s UN Human Rights Council lawyer, present during the appeal hearing, will submit new evidence to the UN.

Before leaving Brazil, Robertson spoke at the Lawfare Institute in São Paulo, where he said he was appalled that the Court did neither attempt to show impartiality nor was concerned that justice was not “seen to be done”.

He was amazed at the intimacy shown between the three judges and the public prosecutor.

“The fourth judge was (in fact) the federal prosecutor, sitting next to them, whispering to them… having lunch with them… This was unbelievable! …this is not a fair court, it is a court of three judges and a prosecutor”

Robertson, an expert for the International Bar Association on the independence of the judiciary, continued:

“It wasn’t a hearing at all, the prosecutors spoke for half an hour and Cristiano [Lula’s counsel] was given 15 mins to respond. Then the judges came to the court with their judgements all written! …the judges had written their judgements before they heard the defence’s argument”.

According to the QC, an experienced human rights lawyer who served as judge and as defence and prosecuting counsel, there was no presumption of innocence for Lula during this ‘ordeal’ (his words).

He said it was essential to “Giv(e) [Lula] what everyone should have: fundamental human rights… the right to a fair trial and a fair appeal”.

According to Robertson, two actions of the Federal Prosecutor who took Lula to court, Deltan Dallagnol, would have been enough to send him to prison in the UK.

He gave a PowerPoint presentation during primetime national television and wrote a book stating that Lula was guilty, both before the trial even reached the Courts.

These actions could be described as serious violations of the defendant’s right to the presumption of innocence.

I will leave the last words to Robertson, who also has acted as a successful prosecutor in important international corruption cases: “We all want to end corruption… but we do not end it effectively, unless we end it fairly. Because if you try people unfairly, they will not believe, with good reason, that they are guilty”.

To sign the petition to let Brazilians decide who they want as President and not the courts: “Election without Lula is Fraud

British MPs, Union leaders, intellectuals and artists ask for direct elections in Brazil

A group of British MP, Union leaders, intellectuals and artists wrote to the Guardian newspaper asking for direct elections in Brazil.

A year from the Coup an increasing number of people are concerned with what has been happening in Brazil.

The ousting of President Dilma Rousseff has taken Brazil into deeper recession and greater unemployment.

The achievements of the non-elected president Temer seems to have been the curtailment of workers’ rights, a destruction of the hard fought for social welfare and security system and the escalation of violence.

He has disregarded the rights of minority groups such as indigenous populations and Afro-decendent “quilombola” communities and is threatening the environment by opening the Amazon to Mining and Exploration.

See the letter prominent British personalities wrote to the Guardian

Controversies: Lula, the Car Wash Operation and the Media

Lula, during his “caravana” in northeastern Brazil, last week. Photo: Ricardo Stuckert.

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.