On Friday, the United Nations Human Rights Committee released a statement requesting that former Brazilian President Luiz Inácio Lula da Silva, who is currently serving a 12-year prison sentence for passive corruption and money laundering, be allowed to exercise his political rights while incarcerated and be free to stand in this year’s presidential election. Lula’s Workers’ Party sees this declaration as a potential route to getting their candidate campaigning on television and participating in live debates, and claim Brazil is legally obliged to adhere to the Committee’s ruling. However, the reality is far less clear-cut.

The Human Rights Committee order specifies that the country “take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison,” which includes “having appropriate access to the media and members of his political party.” Brazil’s Superior Electoral Court has denied the former President’s requests to attend televised debates, or appear in any television or radio advertisements.

The committee ruling is expressed as an “interim measure,” or an injunction to ensure Lula’s political rights while his complaint to the United Nations is under consideration. Though Brazil is a signatory of international treaties that give the country the obligation to adhere to international rulings, the chances of the Human Rights Committee’s request being upheld are zero.

</span></p> <h2>No enforceability for UN ruling</h2> <p><span style="font-weight: 400;">The question is not in the validity or applicability of the order to grant former President Lula his political rights while in prison, rather in its enforceability. As mentioned above, Brazil is bound to observe rulings such as these, but this obligation is exclusively moral, as the country cannot suffer any legal sanctions for refusing to uphold the committee’s request. The worst-case scenario for Brazil would be <a href="https://brazilian.report/money/2017/11/13/tourists-brazil-crisis/">receiving bad press</a>.</span></p> <p><span style="font-weight: 400;">There is also a need to not confuse the UN Human Rights Committee with the high-profile Human Rights Council or Inter-American Court of Human Rights (IACHR). The Committee is a panel of 18 independent human rights experts and there is some divergence over whether its decisions hold any legal weight. The IACHR has entered into judgment against Brazil on a number of occasions in the past (notably in cases of atrocities committed during the military dictatorship and police killings) and the country has not executed the sentences. Why would it do so now, faced with a ruling from a lower UN agency?</span></p> <p><span style="font-weight: 400;">Furthermore, Lula&#8217;s complaint to the Human Rights Committee is only valid after the exhaustion of local remedies, in other words, providing the former President has used up all of the appeal routes available to him. This is not Lula’s case, as he still has special and extraordinary appeals pending at the Superior Court of Justice and the Supreme Court, respectively. If Brazil chooses to file a defense, proving that Lula still has appeals available to him, the Committee&#8217;s request would become invalid.</span></p> <p><span style="font-weight: 400;">The news of the Human Rights Committee’s statement gained plenty of attention from various ends of the political spectrum in Brazil. Far-right presidential candidate Jair Bolsonaro went as far as saying that if elected, he would take Brazil out of the United Nations. “[The UN] is a gathering of communists, of people who have no commitment to South America,” he exclaimed, during an event at a military school in Rio de Janeiro.</span></p> <h2>Possible implications</h2> <p><span style="font-weight: 400;">Theoretically, however, there is nothing stopping this measure from being implemented by Brazil, and perhaps it would be the best solution from a court precedent point of view. In practical terms, the injunction would soon be revoked due to the aforementioned lack of exhaustion of local remedies, or once the former President’s candidacy is barred in accordance with electoral legislation. </span></p> <p><span style="font-weight: 400;">Ignoring the recommendation creates bad press for the country and only reinforces the Workers’ Party’s stance that Lula is being treated unfairly. Speaking to </span><b>The Brazilian Report</b><span style="font-weight: 400;">, International Law and Human Rights professor at the Federal University of Parana Danielle Annoni affirms that “not complying with the Committee&#8217;s decision would put [Brazil] on the path to international isolation,” mentioning that other UN member states may take a stance against countries which do not adhere to human rights rulings, limiting trade or projects of cooperation.</span></p> <p><span style="font-weight: 400;">On August 15, Lula registered his candidacy with the Superior Electoral Court, only to see it contested minutes later by right-wing activists. The objection filed against the former president is based on the Clean Slate Law (a piece of legislation sanctioned by Lula himself in 2010), which states that a candidate is ineligible if he/she has been convicted of a crime by an appeals court. Lula&#8217;s case will be led by Supreme Court Justice Luís Roberto Barroso, a staunch defender of the Clean Slate Law.</span></p> <p><span style="font-weight: 400;">Despite being incarcerated, Lula holds a clear lead over his opponents in presidential opinion polls. One such poll, from respected statistics institute Ibope, released on Monday evening, showed Lula ahead with 37 percent of votes, far ahead of hard-right candidate Jair Bolsonaro in second place, with 18 percent.

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PowerAug 21, 2018

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BY Euan Marshall

Euan Marshall is a Scottish journalist living in São Paulo. He is co-author of A to Zico: An Alphabet of Brazilian Football.