Lula motivates yet another legal clash in Brazil

Gustavo Ribeiro . Jul 09, 2018

No Brazilian politician is as polarizing as Lula

Wrapped up in several criminal proceedings, former President Luiz Inácio Lula da Silva was convicted last year of corruption and money laundering, for allegedly accepting a beachfront triplex apartment from a construction firm. In January, his conviction was upheld by an appellate court, leading to his incarceration on April 7. At every step of the way, Lula’s supporters have called foul play, mentioning questionable points in his case – while his detractors defended the verdict. Now, Lula is at the center of yet another legal clash.

On Sunday (July 8), appellate judge Rogério Favreto issued a release order for Lula, stating that there were no legal grounds to keep him in jail. The habeas corpus had been requested by three Workers’ Party congressmen. The maneuver was carefully planned, with the petition being filed on the weekend, precisely when Mr. Favreto was the only judge on call in the appellate court. Mr. Favreto had not taken part in any phase of Lula’s case and, what’s more, he was a member of the Workers’ Party from 1991 to 2010, worked for the president’s Chief of Staff, and only left the party when he was appointed to his current position by Dilma Rousseff.

Mr. Favreto’s decision was just the first bizarre episode of what was a ridiculous Sunday for Brazilian politics.

After the release order was issued, first-degree Federal Judge Sérgio Moro (who is, in theory, below Mr. Favreto in the judicial hierarchy) refused to carry out the order, saying instead that it had been issued by a judge outside of his jurisdiction. Mr. Favreto then doubled down, reissuing the release order – and stating that any official who doesn’t respect the decision will be committing a crime. Once again, though, Mr. Favreto was overturned. Judge João Pedro Gebran Neto – the rapporteur of Lula’s case – waded in, reaffirming that Lula must stay in jail. Following that, Mr. Favreto issued a release order for a third time. And once again, it was blocked. This time, by the president of the appellate court. If that reads as convoluted, odd, and absurd, it is because it most certainly is. In order to better understand another crazy day in the Brazilian courts, we have prepared a timeline of the key events. <h3>Lula’s case: order of events</h3> July 6, 7:32 pm: Three Workers’ Party congressmen file a habeas corpus for Lula’s release to an appellate court. As of 7 pm, all cases go to the judge on call, Rogério Favreto. July 8, 9:05 am: Mr. Favreto issues a release order for Lula. In the decision, he states that Lula’s arrest was illegal. 12:05 pm: Sérgio Moro, the federal judge who convicted Lula in a first-degree court, says Mr. Favreto is outside of his jurisdiction, and that the decision shouldn’t be carried out. 12:44 pm: Mr. Favreto reissues his decision. 2:13 pm: João P. Gebran Neto, the rapporteur of Lula’s case, steps in, overturning Mr. Favreto’s second release order. 4:12 pm: Mr. Favreto issues a third release order, also threatening to report both Mr. Moro and Mr. Gebran Neto. 7:30 pm: The appellate court’s president, Carlos Thompson Flores, intervenes. He says that Mr. Gebran Neto, as the case’s rapporteur, has the final say in the case. <h3>What to make of the controversy</h3> From any angle, Sunday’s events bury the idea that Brazil’s institutions are working properly. Mr. Favreto’s decision was wrong, according to almost any legal expert, and would be quickly overturned. But the reaction to the decision was also bizarre. On vacation in Portugal, Mr. Moro gave Lula’s supporters what they wanted: he showed that he gives special treatment to Lula’s case, fueling the narrative that the justice system is rigged against the former president. He disobeyed legal hierarchy and, according to some reports, even called the Federal Police Chief to argue against Lula’s release. If Mr. Moro had done nothing, the release order would be carried out, only to be revoked this week. The case shows how little Brazilian judges respect the country’s legal framework, and how partisan politics has interfered in courts. Once again, Brazilians are given reasons <a href="https://brazilian.report/2017/11/08/latinobarometro-2017-brazil-trust/">not to believe in the institutions</a>. While the Workers’ Party might have scored a short-term win by exposing Mr. Moro, far-right candidate Jair Bolsonaro could have the last laugh. This kind of shenanigans fuels the impression that the country is a mess and that it needs order. Mr. Bolsonaro is already ahead in all polls in which Lula is not on the ballot. <h3>What happens next?</h3> Sunday’s events don’t close the issue about Lula’s freedom. Superior courts must still analyze several appeals. One of them is at the Supreme Court – but the 11 justices went on their July vacation without deciding on the case. The rapporteur of Operation Car Wash-related cases at the Supreme Court, Justice Edson Fachin, must now decide whether or not he and his peers could decide right now if Lula can or can’t run for office. Supreme Court Chief Justice Cármen Lúcia must also decide when to schedule a vote about Lula’s release request. Ms. Lúcia leaves her position as Chief Justice in August, and will be replaced by Justice Dias Toffoli, who has actively opposed Operation Car Wash.

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Gustavo Ribeiro

An award-winning journalist, Gustavo has extensive experience covering Brazilian politics and international affairs. He has been featured across Brazilian and French media outlets and founded The Brazilian Report in 2017. He holds a master’s degree in Political Science and Latin American studies from Panthéon-Sorbonne University in Paris.

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Gustavo Ribeiro