In new book ‘Comments on a Notorious Verdict: The trial of Lula‘, a team of Jurists, Professors, Lawyers and Intellectuals comprehensively dismantle the case against former President Lula, which if his conviction is upheld, could see him imprisoned for years, and barred from running in an election where he is front-runner. The consequences of the case will change Brazilian history.
An excerpt chapter by one of the contributors, Ricardo Lodi Ribeiro, is reproduced below in its entirety.
The English language version of the book can be downloaded free of charge here.
Lula’s conviction: Brazil’s most striking case of lawfare
Ricardo Lodi Ribeiro*
Over the last few months, the expression lawfare, a portmanteau of law and warfare, has been used by former Brazilian president Luiz Inácio Lula da Silva’s attorneys to refer to the criminal charges that are being filed against him. The term lawfare appears in an environment where legal institutions are being excessively used to harass political adversaries. It was originally coined by John Carlson and Neville Yeomans in 1975 (207), as they considered it a tactic of peace, in which war was replaced with legal battles and the “duel is between words rather than swords.” US Air Force colonel Charles Dunlap (208) spread the expression in 2001 as a strategy of misuse of law to accomplish an operational objective as an alternative to traditional military means. In the political realm, according to Jean Comaroff and John Comaroff (209), it translates in the process of using violence and power inherent in the law to produce political outcomes. One of the most frequent ways it has been used is by shunning an adversary through the excessive use of the legal system rather than following constitutional electoral processes.
Harvard professor John Comaroff (210) has been dedicated to researching the lawfare phenomenon, and he believes Brazil’s ex-president da Silva is a victim of it, perpetrated by the “Operation Carwash” (Operação Lava Jato) task force in Curitiba, Paraná State, and by Federal Judge Sérgio Moro of the 13th Federal Court of Curitiba. The lawfare in this case was characterized since the aforementioned judge leaked to the press the contents of tapped phone calls between da Silva and the then-president Dilma Rousseff. After the episode, according to the South African researcher, the lawfare became manifest in the attempts to create a presumption of guilt regarding da Silva.
The reality is, it is imperative to acknowledge that, taking advantage of the mainstream media’s militant support to the Lula hunt, the so-called Republic of Curitiba has been for a long time using the public opinion to allegedly fight corruption, creating an atmosphere of anticipated conviction against the former Brazilian president. In this sense, the peculiar PowerPoint presentation made by Federal Prosecution Service task force coordinator Deltan Dellagnol was quite symptomatic. He displayed da Silva as the center of the entire conspiracy, without presenting any evidence of this whatsoever, but only a firm belief in his allegations, as himself infamously declared at the time. Evidently, in addition to all procedural errors made to have the 13th Federal Court of Curitiba obtain jurisdiction over the case, regardless of facts that were spatially restricted to the State of São Paulo, over the course of the proceedings, Judge Sérgio Moro did not reveal himself to be an impartial trier to preside the case, and several times actively performed the role of a prosecutor. And as History shows here and elsewhere, when the boundaries between prosecution and jurisdiction are blurred, the right of defense becomes just a formality to make a previously agreed upon outcome seem legitimate.
In the sentence regarding the triplex apartment in Guarujá, São Paulo State, the attack against the principles of natural justice and due process of law, as well as against the presumption of innocence, is absolutely characterized, leaving no doubt that former president da Silva did not get a fair trial and Judge Sérgio Moro was not impartial.
In this political context, in which the entire media and state apparatus have been driven for years towards a hunt against Lula, few concrete results have been found. Actually, side by side with the political selectivity that drives the movements against Brazil’s Worker Party’s leader, the inevitable side effects of a rhetorical mockery of coherence against other political forces was far more lethal. Indeed, the conclusion to draw from this is that da Silva’s background check came back clear, because with so many investigation efforts going on for so long, in a national landscape where suitcases full of money, bank accounts in tax havens, and irrefutable evidence of plundering of public money abound, not a lot of exciting facts for his executioners were found against the former Brazilian president.
But let us look into it. The Brazilian Federal Prosecution Office (MPF) brought charges against da Silva for corruption and money laundering for his participation in three contracts signed with construction giant OAS which were hurtful to Petrobras. So, according to the MPF, da Silva would be the head of the conspiracy that allegedly would have had hurt Petrobras, a government controlled company, through the aforementioned contracts. His share in this would be the triplex apartment in Guarujá and a renovation carried out by OAS, thus allegedly constituting the crime of corruption. The money laundering aspect of it would be da Silva not transferring the property to himself.
When the charges were made public, different voices in the legal world rose to warn that the story told in the complaint against the defendant was not proven by the documents inserted in the record, nor did it validate that PowerPoint presentation which pointed da Silva as the head of the conspiracy. In fact, what was the point of saying that and not filing charges against him for conspiracy to commit a crime, if not to attack his image in face of the public opinion?
Nevertheless, despite the overt rush to present the accusations, there was the possibility of proving the facts claimed in the charging document during the presentation of evidence. But what happened was far from that. Throughout the entire evidentiary stage, dozens of defense and prosecution witnesses were heard, hundreds of documents were presented, and expert examinations were conducted, and the prosecution was not able to prove its version with the necessary elements to support it regarding the facts attributed to da Silva. Such was the case that Judge Sérgio Moro actually stopped working with the Prosecution Office’s theory, innovating in terms of the description of the facts in the charges. That alone would be enough to prevent a potential conviction. But it came to a point in which, giving the motions for clarification of judgment filed by the defense against the adverse judgment, he recognized the money received by OAS from Petrobras could not have been used to make payments for da Silva’s own benefit. That would inevitably dismiss the only connection, even if tenuous, to set jurisdiction in Curitiba.
To constitute the crime of corruption in which the former Brazilian president would have gained improper advantages and taken ex officio action to favor OAS, the prosecution would have to prove that da Silva acted while in office to benefit the company in exchange of improper advantages. However, after the production of evidence, da Silva’s involvement in the episode was not successfully proven. Moro then felt contented with the possibility that the former president could influence the appointment of Petrobras directors, as if appointing someone for a position could make the person who appoints them responsible for all future illegal activities in which the appointee engages. Regarding the alleged advantage da Silva would have gained, the judgment points to facts that took place entirely in 2014, when da Silva was no longer president.
The attempt to prove that the activities in which the president took part in 2009 were gradually paid off in improper advantages in 2014 was successful, even though the great distance between the two aforementioned time frames required great effort of argumentation and use of evidence. Hence, the defendant’s participation in the illegal activity could not be proven, nor could the advantage he allegedly gained or the chain of causation between the two things.
Despite the testimonies of all defense and prosecution witnesses, Judge Moro came to a decision based on the “informal collaboration” of Léo Pinheiro, a former OAS president whose surprising change of deposition gave him startling advantages in his sentence. That is, after spending more than a year denying da Silva’s involvement in the conspiracy, Pinheiro “informally” collaborated with the court and received immunity. He did not have to go through the legal proceedings of a plea bargain, nor did he have to prove his claims. And there we have the institution of a plea bargain where the collaborator does not have to prove anything. Just by changing his deposition, the construction executive managed to save himself from spending the rest of his days in prison.
As for the alleged advantages offered to Brazil’s former president and faced with compelling evidence that the apartment was never owned by da Silva or his family, Moro stretched the facts to decide that, even though the property was never transferred to him, he would be the “de facto owner,” even though it was very clear da Silva and his family never had the property’s tenure. Well, the tenure is the externalization, on the factual level, of one of the owner’s faculties. If he did not have the tenure of, did not use, enjoyed or have the property available, it is not possible to argue he had the “factual ownership.”
In the narrative created by Moro, there was no other legal reason that could possibly explain why OAS insisted on offering the triplex apartment to da Silva or why it was renovated. The judge would rather draw the conclusion that it could only be the result of a corruption scheme. The problem with a conviction without supporting evidence, based solely on a judge’s beliefs, is that he risks disregarding other narratives, including the one presented by the defense, which maintained the arrangements were regarding Brazil’s ex-first lady Mrs. Marisa Silva’s negotiations with the property development’s former owner, Bancoop, to buy a membership interest. Not only is the defense’s narrative much more likely than the prosecution’s, it is up to the latter to prove their version of the facts is correct by presenting supporting evidence. In any case, Judge Moro’s conclusion that “the only possible explanation” for the triplex apartment being offered to da Silva and for the renovation carried out in it was to pay bribes seems to demonstrate one thing: even without enough evidence, the judge’s belief that the defendant is guilty was unshakable, and that was apparent regardless of the outcome of the production of evidence.
As for the money laundering charges, the facts were presented by the prosecution as though proven − which is not correct − what we have here is a legal impossibility. Money laundering is when someone tries to make money coming from illegal activities look legal. But when that person receives assets as payment from actions tainted by corruption, there is no separate crime. Even if the ownership of the asset is concealed, we would be facing a conduct included in the definition of the crime that sanctions corruption itself. By accepting the judgment’s theory, money laundering would follow any illegal activity, and that would be a complete legal nonsense.
As da Silva was clearly convicted without evidence, one cannot help but pointing out that the long history of affirming the Rule of Law is connected to the dedication to constitutional principles such as due process of law, presumption of innocence, and natural justice. These principles are being relegated in the name of a discriminating, politically-driven fight on corruption, which could risk producing very harmful outcomes to Brazil’s own democratic history. In this sense, if successful, the lawfare that is now targeting da Silva will definitively outline the ruin of the Welfare State − a ruin promoted since president Rousseff was impeached. The coup promoted by the Brazilian parliament based on very peculiar financial law categories enabled the dismantling of an embryonic system of social protection to the country’s most vulnerable populations. But the harassment against da Silva, who is the front- runner in the 2018 elections, aims to make him ineligible and bury the greatest risk to the market society project, as suggested by Karl Polanyi (211), in which the economic and social systems separate and the latter is subject to the interests of the market, in a path paved since Dilma Rousseff was removed from office. Therefore, while the lawfare against president Rousseff was extremely serious, as it made it possible to establish an illegitimate government that will be in office until 2018, the effects of the lawfare against da Silva are expected to last much longer. For this reason, we consider that, even though the impeachment became an extremely powerful instrument to promote a blow against the institutions in order to overthrow the cosmovisions chosen by the Brazilian people in 2014, the Lula hunt, aimed at tainting his image and making him unable to run in the elections, is intended to take away from voters the political options that were betrayed by the Brazilian Congress in 2016. Let us hope higher courts do not allow it.
* Adjunct Professor of Financial Law at the University of the State of Rio de Janeiro (UERJ) UERJ Law School Director
207 CARLSON, John; YEOMANS, Neville. In Smith, M. & Crossley, D. (eds.), The Way Out – Radical Alternatives in Australia Melbourne: Lansdowne Press, 1975.
208 DUNLAP, JR., Charles J. Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts.
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209: COMAROFF, Jean; COMAROFF, John L. Law and Disorder in the Postcolony by Review by: Giovanni Arrighi American Journal of Sociology Vol. 114, No. 2 (September 2008), pp. 562-564.
210 http://www1.folha.uol.com.br/poder/2016/11/1829175-professor-de-harvard-ve-presuncao-de-culpa- contra-lula-na-lava-jato.shtml.
211 POLANYI, Karl. A Grande Transformação. Trans. Fanny Wrobel. 2. ed. Rio de Janeiro: Elsevier, 2012, p. 45 and 77.