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”