"Free Lula" demonstrators. Photo: Paulo Pinto/FP

In an unsurprising finish, the Brazilian Supreme Court decided—by a narrow 6-5 vote—that prison sentences in the country may only be enforced after all appeals routes have been exhausted. Between 2016 and last night, the court understood that defendants could go to jail after losing their first appeal.

The decision should affect almost 5,000 convicted felons, none as high-profile as former President Luiz Inácio Lula da Silva. Convicted of corruption and money laundering, the politician was released less than 24 hours after the Supreme Court verdict was proclaimed.

</p> <h2>What does a free Lula mean for Brazilian politics?</h2> <p>Lula still faces many criminal cases, but unless one of them reaches the Supreme Court—and he loses his appeal—he will remain free. But the former president remains ineligible for public office, as anyone with a conviction by an appellate court—in prison or not—loses their political rights for eight years. Until 2024, Lula cannot appear on a ballot—meaning that he couldn&#8217;t run for president again until 2026, when he will be 81 years old.</p> <p>But regardless of his eligibility, Lula remains <em>the</em> most popular politician in Brazilian politics. And his release could help the Brazilian left regroup and effectively act as an opposition force against President Jair Bolsonaro. Until now, the Workers&#8217; Party has been stuck in a &#8220;Free Lula&#8221; loophole, losing touch with the electorate and becoming a near-irrelevant force in Congress. That could change.</p> <p>&#8220;I see Lula trying to form a broad political front, not only on the left, but also by luring parties from the center. It would surprise me if he chooses aggressive rhetoric, that could be incendiary to the country,&#8221; says political scientist Carlos Melo, a professor at the São Paulo-based Insper Business School. &#8220;His style was always more of an aggregator.&#8221;</p> <p>But if a free Lula is good for the left, it could also help galvanize the far-right. Bolsonarism has always needed an &#8220;enemy&#8221; to rally supporters. In 2018, Jair Bolsonaro managed to become <em>the</em> anti-Lula figure in the political stage—which pushed him to win the race. With low approval ratings, having his favorite bogeyman could breathe life into his administration.</p> <figure class="wp-block-image"><img src="https://brazilian.report/wp-content/uploads/2019/11/vale6-1024x704.jpg" alt="free lula demonstration" class="wp-image-27314" srcset="https://brazilian.report/wp-content/uploads/2019/11/vale6-1024x704.jpg 1024w, https://brazilian.report/wp-content/uploads/2019/11/vale6-300x206.jpg 300w, https://brazilian.report/wp-content/uploads/2019/11/vale6-768x528.jpg 768w, https://brazilian.report/wp-content/uploads/2019/11/vale6-610x420.jpg 610w" sizes="(max-width: 1024px) 100vw, 1024px" /><figcaption>Free Lula demonstration in São Paulo. Photo: Paulo Pinto/FP</figcaption></figure> <h2>When to arrest?</h2> <p>The decision is just the latest change in the court&#8217;s interpretation of when should prison sentences be enforced. As a matter of fact, the rules on that have changed several times in Brazil over the years.</p> <p><strong>Prisons after first conviction. </strong>Dictatorial President <a href="https://brazilian.report/guide-to-brazil/2017/10/15/getulio-vargas-era-brazil/">Getulio Vargas</a> approved a penal code in 1941 that enforced prison sentences after a trial court conviction. As a matter of fact, the law established that defendants were only eligible for appeal if they were behind bars.</p> <p><strong>The dictatorship changes the law.</strong> Another dictatorial regime—this time, the military dictatorship—altered the rule in order to save one of the state&#8217;s most notorious torture agents. Police chief Sérgio Fleury—who oversaw the regime&#8217;s political police—had been accused of torturing and murdering several militants. To avoid his arrest, the government passed a law giving defendants with no priors the possibility of appealing at liberty. The law became known as the &#8220;<a href="http://memoriasdaditadura.org.br/biografias-da-ditadura/delegado-fleury/">Fleury Law</a>.&#8221;</p> <p><strong>Car Wash rises.</strong> Operation Car Wash was launched in 2014 and tarnished the reputation of every single major party in Brazil, with politicians from all sides of the ideological spectrum found to be caught up in dozens of corruption schemes. In 2016, the Supreme Court decided (by a 6 v. 5 majority) that jail sentences could be enforced after an appellate court confirmed the conviction. That boosted Operation Car Wash, as defendants facing imminent prison time were more prone to collaborate with investigators in exchange for reduced sentences.</p> <p><strong>Car Wash falls.</strong> Now, three years after the Supreme Court&#8217;s last analysis of the issue, they have made another U-turn. The change comes at a moment when <a href="https://brazilian.report/power/2019/03/15/anti-corruption-operation-car-wash-end/">Operation Car Wash is on the ropes</a>. Former Federal Judge Sergio Moro has left the bench to become Jair Bolsonaro&#8217;s Justice Minister—and his verdicts have been called into question by a series of leaked private messages published by <em>The Intercept</em>, showing that Mr. Moro was not the neutral umpire judges are supposed to be. Instead, he was in cahoots with the prosecution team, instructing and guiding how they could build a better case against defendants such as Lula. Combined with that is the Bolsonaro administration&#8217;s repeated attempts to neuter law enforcement institutions, as well as the <a href="https://brazilian.report/money/2018/12/03/brazil-money-laundering-law/">money laundering</a> enforcement agency—submitted to a complete overhaul earlier this year.</p> <script src="https://www.buzzsprout.com/299876/1269271-64-you-can-t-spell-car-wash-without-leaks.js?player=small" type="text/javascript" charset="utf-8"></script> <p>

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BY Gustavo Ribeiro

Gustavo is the founder of The Brazilian Report, and is an award-winning journalist with experience covering Brazilian politics and international affairs. His work has been featured across Brazilian and French media outlets.