By Carol Proner
This article was originally published by Brazil’s Landless Workers Movement. This statement comes after Brazil’s judiciary issued different orders over the imprisonment of ex-president Luiz Inacio Lula da Silva, who was convicted of corruption and sent to jail in April. On Sunday, a federal court judge ruled in favour of an appeal and ordered Lula be released immediately. The decision was then reversed by another federal judge, Sergio Moro, who oversaw the investigation that helped put Lula behind bars.
On Sunday July 9, almost a month before the registration of candidacies for the 2018 elections, Brazil is living another regrettable episode to prevent candidate Lula from running. The situation is that a habeas corpus presented by federal deputies of the Workers’ Party – Deputies Wadih Damous, Paulo Teixeira y Paulo Pimenta – in order to contest the co-active action practiced by the infamous federal judge, Sérgio Moro, from Curitiba, which maintains President Lula imprisoned, Rogério Favretto, the Appeal’s Judge of the Regional Federal Tribunal of the Fourth Region, decided to allow for an order determining the immediate release of the detainee.
The order, issued at 8:30 a.m., and expressly addressed to the Superintendence of the Federal Police in Curitiba, should have been immediately carried out. However, after 12 hours in contempt of the judicial order, unjustified arrears and illegal interference by legal authorities, the order was reversed by the President of the Appeals Court, Thompson Flores, who finally determined keeping former president Lula in prison. During those 12 hours, it could be considered that Lula was kidnapped because he should have been freed by then.
Among the most scandalous events of the day, there is undoubtedly the desperate action from Judge Sergio Moro who, while enjoying vacation in Portugal, called the headquarters of the Federal Police to try to prevent the release of Lula and, by such, acted illegally against a hierarchical superior within the justice system, an Appeals Court judge who received the request for the habeas corpus and who had jurisdiction to rule on a decision on his liberation.
In trying to prevent compliance with a release order, judge Sergio Moro committed, according to the law, the crime of prevarication, as provided in Article 319 of the Penal Code, applicable under the hypothesis of non-compliance to the judicial order carried out by a public official in the exercise of his functions.
At the same time, another judge – Appeals Court Judge João Pedro Gebran Neto – who participated in Lula’s trial in second instance, also tried to avoid his release, this hypothesis is equally inadmissible before Brazilian law.
As was well determined by the democratic jurists, these authoritarian instruments of avoidance of competences, which were allowed in the military regime in Brazil, are incompatible with the precepts of any democratic legal order, with the Brazilian Constitution and with the legal codes.
Moreover, and above all, it is evident that the insistent action of Judge Sérgio Moro, of the 13th Federal Court of Curitiba and of Appeals Court Judge João Pedro Gebran Neto in the sense of non-compliance with the order of habeas corpus, and even outside of the process, reveals unquestionable conflict of interest that would make them ineligible to continue exercising jurisdiction in any action regarding the former president and detainee, in accordance with art. 185, IV, of the CPC.
Brazil is a model case of legal exception for all of Latin America and the world. It is important to perceive that in our country, important sectors of the judiciary gave in to foreign and hidden powers and made the decision to abandon the law to apply acts of exception to prevent and restrict democracy.
The Lava-Jato (operation lead by the federal police to fight corruption), the way it is being carried out, is already responsible for a serious economic recession in the country, having destroyed companies, industrial sectors and the civil construction sector with the excuse of fighting widespread corruption, but doing so trying to prevent the most popular candidate for sovereign elections from participating in the dispute, which only increases popular outrage and a sense of deception and betrayal of democracy.
Carol Proner is an International Secretary of the Association of Jurists for Democracy, Ph.D. in Law and Professor at the Federal University of Rio de Janeiro