The Supreme Court decided not to decide. Photo: Jefferson Rudy/Ag.Senado
lula supreme court habeas corpus prison sentence

The Supreme Court decided not to decide. Photo: Jefferson Rudy/Ag.Senado

The Brazilian Supreme Court met on Thursday to decide whether or not former President Luiz Inácio Lula da Silva should be allowed to suspend his prison sentence. Lula has been convicted for corruption and money laundering and sentenced to 12 years and one month in prison – and the reining jurisprudence at the Court allows defendants to be placed behind bars after a conviction in an appellate court.

Lula’s case is about to be concluded in an appellate court, as its three judges have scheduled a trial on Monday to analyze the politician’s final appeals. Lula’s lawyers have asked the three judges on the case to clarify some obscure points pertaining to the court’s opinion. The verdict, however, shouldn’t be altered.

The case is of special importance not just because Lula is a former president, but because he wants to win yet another presidential race – which, of course, he wouldn’t be able to do from jail. It therefore came as a shock when the justices decided to suspend the trial until April 4, when the court meets again.

For the better part of the day, justices debated whether the case should be at the Supreme Court, period. By 7 p.m., seven of the 11 justices felt that it was justified, and the majority simply wanted to head home to enjoy their 11-day recess. One showed a plane ticket as a justification for his need to rush out of the courtroom.

So the court issued an order blocking Lula’s arrest. Regardless of what happens on Monday at the appellate court, Lula will remain a free man … that is, at least until April 4.

supreme court justice marco aurelio mello lula arrest

Supreme Court Justice Marco Aurelio Mello had a flight to catch. Photo: STF

Changing jurisprudence

It is hard to underestimate the case’s weight. In order to protect a high-profile politician, the Supreme Court might be headed down a track that shreds its own jurisprudence. Back in October 2016, the court decided that appellate courts can order arrests for defendants convicted by appellate courts.

The mere act of giving Lula a “temporary immunity,” as one justice described the ruling, is a blow to the court’s previous decision to curb impunity. Until 2016, no convicted criminal has gone to prison before exhausting all appeals options. For decades, the presumption of innocence was a synonym for impunity in Brazil.

In a famous case during the early 2000s, a journalist killed his girlfriend, confessed to the crime, and yet remained free for 11 years thanks to skilled lawyers that profited from the many loopholes in Brazilian legislation. One-third of the cases against politicians are dismissed after reaching the statute of limitations without a verdict, showing that justice is slow in Brazil, although not inevitable.

Lula’s case is also strange because he benefited from a “non-decision.” While 10 judges across three levels of the judicial system have denied Lula his request, the Supreme Court gave him a pass without analyzing his case at all. The bare minimum expected from judges of such a high position would be to rule on a case of this magnitude – especially one that involves not only a presidential candidate, but the leading candidate.

Once again, self-inflicted wounds belittle the Supreme Court. In recent years, the court has embraced each change it had to show servility towards the political class, when it let the Senate ignore not one, but two judicial decisions that suspended corrupt senators. Since Congress didn’t like the rulings, the justices changed the verdict. It was as simple as that.

PowerMar 23, 2018

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BY Gustavo Ribeiro

An award-winning journalist with experience covering Brazilian politics and international affairs. His work has been featured across Brazilian and French media outlets.