Imprisonment of Luiz Inácio Lula da Silva
Luiz Inácio Lula da Silva, the 35th and 39th president of Brazil was imprisoned at the ABC Metalworkers' Union in São Bernardo do Campo, in Greater São Paulo following his surrender to the Federal Police of Brazil (PF) on 7 April 2018 until the Supreme Federal Court (STF) overturned the arrest 8 November 2019.
On 12 July 2017, Sergio Moro, then a federal judge of first instance [pt], sentenced Luiz Inácio Lula da Silva to nine years and six months in prison for passive corruption and money laundering in a criminal case involving a triplex apartment in Guarujá, on the coast [pt] of the state of São Paulo. In the second instance, the sentence was increased to 12 years and one month, after a unanimous vote. Then, on April 5, Moro issued the arrest warrant. In April 2019, in a unanimous decision, the 5th Panel of the Superior Court of Justice (STJ) upheld Lula's conviction and reduced the sentence for passive corruption and money laundering from 12 years and one month to eight years and ten months in prison. The triplex case was investigated as part of Operation Car Wash. Lula served his sentence in Curitiba, capital of Paraná, in the building of the Regional Superintendency of the Federal Police in Paraná. In August 2018, the United Nations Human Rights Committee requested that Brazil guarantee Lula the right to exercise his political rights while in prison, including access to members of his party and the media and participation in the 2018 presidential election in Brazil. The Brazilian Foreign Ministry questioned the Committee and referred the decision to the Judiciary.
List of criminal cases involving Lula
The triplex case was one of several cases in which Lula was involved. Lula was a defendant in ten criminal cases in total, including some in which he has already been acquitted or convicted. Some of these criminal cases are part of Operation Car Wash.
In March 2010, Rio de Janeiro newspaper O Globo published a report about an apartment in the city of Guarujá, in the state of São Paulo, that allegedly belonged to then-President Lula. There were no suspicions of illegality at the time; the report focused on a multiple year delay in constructing the apartment complex, and its construction being taken over by Construtora OAS [pt].
Operation Car Wash
In March 2014, an anti-corruption probe nicknamed Operation Car Wash (Operação Lava Jato) began; it would become the largest anti-corruption operation in the history of Brazil, revealing corruption and illegal payments in procurements of public works, many related to Petrobras. Several companies – Odebrecht, Camargo Corrêa, Construtora OAS, among others – were accused of bribing Petrobras employees and higher-ups to only choose their companies for Petrobras procurements; the companies would then decide, among themselves, on an overpriced invoice[a] and pocket the difference. Those bribes were initially made in cash, but would later take the form of offshore transfers or the paying off of properties.
Societal context
Operation Car Wash coincided with an explosive growth in what was termed "antipetismo" (an "anti-Workers' Party" sentiment) around 2014. This was motivated in part by a dissatisfaction with the economy: during the latest few years of a Worker's Party government, the Brazilian real had been losing strength in the USD exchange. In March 2015, for example, it hit a decade-long high, at USD$1 = R$3.16. Protests broke out throughout the country calling for then-president Dilma Rousseff's removal from office, be it through an impeachment or military intervention, as part of a movement called "Vem pra Rua" (lit. 'Come to the Streets'). An April 2015 poll of protestors put over 90%, a majority of which were middle- and upper-class White Brazilians, believing the Workers' Party did a "great harm" to Brazil; and 37% believing minorities such as Afro-Brazilians, women and homosexuals had "too many rights" in Brazil.
Lula involvement
In March 2016, Lula was the target of a coerced summons (condução coercitiva)[b] to testify on suspicions of receiving bribes by Construtora OAS and Odebrecht in the form of renovations of an apartment in Guarujá and a country house[c] in Atibaia, both in the state of São Paulo. Lula was also under investigation for money received as donations and payments for lectures. At the time, Lula criticized the coercion aspect of the summons, stating he wouldn't have refused to testify if asked. He also stated that were Federal Police to find a single real of his came from embezzlement, he didn't deserve to be a part of the Workers' Party. Lula further criticized that his lawyers were not informed of "anything", while some in the news media had prior knowledge of the intricacies of the investigation: "it's regretful that a portion of the Brazilian Judiciary is working in association with the press".
Accusation
A few days after his summons, São Paulo state's Public Prosecutor's Office (MP-SP) formally accused Lula and his wife, Marisa Letícia, of money laundering and concealment of assets. According to the prosecutors, Lula was the de facto owner of the Guarujá apartment (even if it was legally still property of the Construtora OAS company), which they argued constituted money laundering. Crucially, the São Paulo state courts sent the accusation papers to the federal courts in Curitiba, in the state of Paraná, to be ruled on by Sergio Moro. At the time, there was already an open Supreme Federal Court case asking its deliberation on whether the prosecution would fall under the federal or São Paulo state jurisdictions.
Defense
In 2016,[when?] Lula's defense team submitted a request to the United Nations (UN)[citation needed] to assess possible violations in the legal proceedings involving Lula under the International Covenant on Civil and Political Rights, to which Brazil is a signatory. In May 2018, the organization's Human Rights Committee stated that it would not take a final position until 2019, but denied precautionary measures against the former president's imprisonment.[needs update]
Testimonials
On 20 April 2017, former OAS president Léo Pinheiro testified before Judge Sergio Moro, saying that the triplex did indeed belong to Lula and that the apartment had never been put up for sale by OAS because it was reserved for the former president. He also said that Lula himself had approved the design of the triplex and the ranch in Atibaia, which was investigated in another case. Lula's defense claimed that Léo Pinheiro was lying in order to try to secure a plea bargain. About a year earlier, the newspaper Folha de S.Paulo reported that Léo Pinheiro had told another version of the story, in which he exonerated Lula, but prosecutors considered this version implausible.
On 12 July 2017, federal judge Sergio Moro sentenced former president Luiz Inácio Lula da Silva to nine years and six months in prison in the criminal case involving the triplex apartment, for the crimes of passive corruption and money laundering. The indictment referred to the concealment of ownership of a triplex penthouse in Guarujá, on the coast of São Paulo, received as a bribe from the construction company OAS in exchange for favors at Petrobras. Three months later, Lula gave a new statement to Sergio Moro, this time in a case involving the Lula Institute [pt]. During the testimony, Lula questioned Moro and said that he had not been judged impartially by him in the triplex case. Moro declined to comment and simply told Lula to question the triplex case in the court of appeals.
Appeal court
On 24 January 2018, in a trial that lasted more than eight hours and received international attention, Luiz Inácio Lula da Silva was convicted in the second instance. The sentence was unanimous among the three judges of the 8th Panel of the Federal Regional Court of the 4th Region (TRF-4), in Porto Alegre, in favor of upholding the previous conviction, which was 9 years and 6 months in prison for passive corruption and money laundering, and further extending the former president's prison sentence for passive corruption and money laundering in the case of the triplex apartment in Guarujá. The judges decided to extend the sentence to 12 years and 1 month in prison, to be served in a closed regime. The conclusions were that Lula received a bribe from a corruption scheme at Petrobras and that this bribe was delivered in the form of an apartment. The sentence would begin after all possible appeals within the TRF-4 itself had been exhausted. Even though he was convicted, he did not immediately lose the right to run in the 2018 elections, a decision that would be up to the Superior Electoral Court (TSE). Lula's defense team and politicians close to him questioned the speed with which his case was processed in the TRF-4. The then president of the court, Thompson Flores, responded that speed is “a common feature of this court” and that “the time taken to process the appeal does not violate the principle of equality.”
On 5 April 2018, after the Federal Supreme Court rejected the preventive habeas corpus, Federal Judge Sergio Moro ordered the imprisonment of Lula, who had been sentenced by the Federal Regional Court of the 4th Region (TRF-4) to 12 years and one month of imprisonment. The judge also defined special conditions for imprisonment due to the dignity of the office. According to the order, a reserved room was prepared at the Federal Police (PF) headquarters, where the former president would be separated from other prisoners, without any risk to his moral or physical integrity. Moro also gave Lula a deadline to surrender to the Federal Police in Curitiba: by 5 p.m. on April 6. Experts said at the time that Moro's arrest warrant against Lula had atypical characteristics. The former president's defense filed a new habeas corpus petition with the Superior Court of Justice to avoid his arrest, which was again denied.
Subsequent events
On 11 April 2018, the Union of Federal Police Delegates of the State of Paraná (SinDPF/PR) requested, through an official letter sent to the Superintendence of the Federal Police, the transfer of former President Lula to a location that would offer better security conditions and that would not cause inconvenience or risks to the population and Federal Police employees. According to the union, the location where the former president was being held was used to provide services to the general public, such as issuing passports and criminal records. “Thus, every day, hundreds of people who visit these facilities need, for various and relevant reasons, security and efficiency in service,” said the union.
Subsequent convictions
In November 2018, when Lula was already in prison, the appeal filed by his lawyers against his conviction in the Guarujá triplex case reached the Superior Court of Justice (STJ). The defense alleged that there had been several violations of rights during the proceedings and requested Lula's acquittal or the annulment of his conviction. Justice Felix Fischer initially denied this request. The defense then appealed to the Fifth Panel of the STJ. On 23 April 2019, the Fifth Panel reviewed the appeal and, by unanimous decision, upheld Lula's conviction in the triplex case. However, the justices reduced the sentence to 8 years, 10 months, and 20 days in prison, in addition to reducing the amount of the fine that the former president would have to pay as compensation. Justices Felix Fischer, Jorge Mussi [pt], Reynaldo Soares da Fonseca [pt], and Ribeiro Dantas [pt] participated in the trial. Justice Joel Ilan Paciornik [pt] did not participate in the decision because he recused himself.
Appearances after arrest
While in prison, Lula was seen in public on few occasions. His first public appearance after his arrest was on June 5, 2018, when the former president testified before Judge Marcelo Bretas [pt] in a criminal case investigating alleged vote buying for the selection of Rio de Janeiro as the host city for the 2016 Summer Olympics. Lula testified via videoconference. The second appearance was on 14 November 2018, when the former president testified before Judge Gabriela Hardt in the case involving the ranch in Atibaia. Lula was temporarily released from prison in Curitiba to testify. The third appearance was on 1 March 2019, when Lula was allowed to attend his grandson's funeral in São Bernardo do Campo. During the ceremony, Lula only spoke in an area reserved for family and friends. According to people present at the scene, Lula promised his grandson that he would prove his innocence. The fourth appearance was on 26 April 2019, when the former president gave his first interview in prison to the newspapers Folha de S.Paulo and El País. The fifth appearance was on 10 May 2019, when Lula's second interview in prison, conducted for the BBC, was aired. On 15 May 2019, Lula gave his third interview in prison, this time to journalist Glenn Greenwald of The Intercept Brasil. The interview was made available in full on the internet on 21 May 2019. After that, for the rest of his time in prison, Lula appeared only in interviews he gave in prison.
Interview requests
On 11 July 2018, Judge Carolina Moura Lebbos, responsible for enforcing Lula's sentence, denied a request by media outlets to interview him in prison. Among the outlets that made the request were UOL, Folha de S.Paulo, SBT, Rede TV!, and Diário do Centro do Mundo [pt]. Journalists Mônica Bergamo [pt], from Folha de S.Paulo, and Florestan Fernandes Júnior [pt], from El País, filed a constitutional complaint with the Federal Supreme Court against Judge Lebbos' decision. On the morning of 28 September 2018, Supreme Court Justice Ricardo Lewandowski authorized Lula to give interviews in prison. Hours later, however, the New Party requested the suspension of the injunction, and Supreme Court Justice Luiz Fux suspended Lewandowski's decision and prohibited Lula from giving an interview to Folha de S.Paulo. If the interview had already been conducted, it could not be published. The New Party also filed a lawsuit to prevent El País from interviewing Lula. On 1 October 2018, Lewandowski reaffirmed his decision, but the president of the STF, Dias Toffoli, decided to uphold Fux's decision. Fux's decision was criticized by lawyers.
Loss of benefits
On 17 May 2018, Federal Judge Haroldo Nader, of the 6th District Court of Campinas, granted an emergency injunction in a actio popularis lawsuit and ordered Lula's benefits as former president to be cut off. The magistrate's central argument is that Lula would be safer in the Lava Jato prison in Curitiba than he would be if he were free. The magistrate highlighted the unnecessary mobilization of agents to accompany Lula wherever he went. “It is also absolutely unnecessary to have two vehicles with drivers available to someone whose right to movement is restricted to the Federal Police building in Curitiba and controlled by prison guards,” said the judge. The lawsuit was filed by Rubens Nunes, coordinator of the Free Brazil Movement (MBL). On 29 May 2018, Judge Marcelo Saraiva, of the Federal Regional Court of the 3rd Region, upheld an appeal and restored Lula's benefits as former president of the Republic, such as advisors, drivers, security guards, and an official car. The magistrate emphasized that these benefits constitute rights and privileges granted by law to former presidents and are not perks.
Prison visits
When Lula was arrested, only his family and lawyers were allowed to visit him in prison. Judge Sergio Moro ruled that lawyers could visit him every day and his family only on Wednesdays. However, a few days after his arrest, it was decided that Lula would receive family visits on a day other than Wednesday. The intention was to prevent his family from meeting with the families of his accusers, since Wednesday is the usual visiting day. The former president requested that his family visit him on Thursdays, and the Federal Police agreed. Thus, Lula began to receive visits from his family on Thursdays, while his lawyers could visit him every day. On 10 April 2018, a delegation of nine governors and three senators attempted to visit Lula in prison, but the visit was not authorized. On 3 May 2018, Lula received a visit from Senator Gleisi Hoffmann and former minister and former governor of Bahia, Jaques Wagner.
After 580 days imprisoned in the Federal Police jail in Curitiba, Lula was released on 8 November 2019, one day after the Federal Supreme Court ruled that imprisonment after conviction in the second instance was unconstitutional. The decision for immediate release was made by Judge Danilo Pereira Júnior, of the 12th Federal Court of Curitiba, after a request by lawyer Cristiano Zanin. Accompanying Lula's release from prison were, in addition to his lawyer Zanin, members of the Workers' Party, including Fernando Haddad, Gliesi Hoffman, Wadih Damous [pt], and Lindbergh Farias. It was also Lula's first public appearance with Rosângela Lula da Silva, his new girlfriend at the time and future first lady of Brazil. Lula said that during the 580 days he spent in prison, he read more than forty books.
Presidential candidates
Repercussions among the candidates for the presidency of the republic in the 2018 presidential election in Brazil, which took place not long after Lula's imprisonment:
Foreign parties
The Spanish party Podemos criticized the arrest of the former president. One of the party's representatives in the European Parliament stated that “Brazil does not meet the minimum democratic conditions.” The party stated that the process at all stages “has been based on irregularities.” It also stated that the process is linked to the interests of the elite who are trying to prevent the PT from returning to the presidency of the country. The party asked the European Parliament to suspend negotiations with Mercosur. The Colombian party Common Alternative Revolutionary Force (FARC) declared its solidarity “with comrade and former Brazilian president Lula, rejecting the decision taken against him by the Brazilian Supreme Court and demanding all political and judicial guarantees under the Brazilian constitution, its internal order, and international law.” In a statement, Raúl Castro, first secretary of the Communist Party of Cuba (PCC) and former Cuban president, reiterated that Cuba will always stand by the Brazilian people. Read the full message: “To our comrade Lula, victim of political persecution and coup maneuvers, we express our solidarity in the face of the maneuver to prevent his candidacy in the upcoming elections. Lula, Dilma Rousseff, the PT, and the Brazilian people will always have Cuba by their side.”
Other repercussions
In mid-April 2018, an opinion poll conducted by Datafolha indicated that 54 percent of voters surveyed by the institute considered Lula's imprisonment to be “fair,” while 40 percent disagreed. Another 62 percent believed that Lula would not run in that year's presidential election. Shortly after his imprisonment, however, election polls showed that, even though he had been convicted and imprisoned, Lula continued to lead the race for the 2018 election, with about 30 percent of voters saying they would vote for him. Months later, in August 2018, Lula continued to lead the polls for the 2018 election. On the other hand, he also had a high rejection rate of 34 percent, the second highest among the candidates. The polls also showed that, in a scenario without Lula in the election, Jair Bolsonaro led the race.
Starting on 9 June 2019, the online newspaper The Intercept Brasil, the Brazilian version of the American publication The Intercept, leaked a series of messages from conversations held via the Telegram app between then-judge Sergio Moro, then-prosecutor Deltan Dallagnol, and other members of Operation Car Wash. The transcripts indicated that Moro provided privileged information to the prosecution, helping the Federal Public Prosecutor's Office (MPF) to build cases, as well as guiding the prosecution, suggesting changes to the phases of Operation Car Wash. They also showed that he demanded speed in new operations, gave strategic advice, provided informal clues, and suggested appeals to the MPF. This increased criticism that Moro had not been an impartial judge. Messages exchanged between prosecutor Deltan Dallagnol and other members of Operation Car Wash indicate that there were doubts about the strength of the evidence presented by the prosecution in the Guarujá triplex case, which led to Lula's imprisonment.
On 8 March 2021, Supreme Court Justice Edson Fachin overturned Lula's convictions on the grounds that they were handed down by a court that did not have jurisdiction to hear the case. The decision granted a habeas corpus petition filed by the former president's defense team in November 2020. Fachin ruled that the Federal Court of Paraná did not have jurisdiction to hear the four cases in the lawsuit, and the cases were transferred to the Federal Court of the Federal District, which must now validate or overturn the decisions of the Federal Court of Paraná. As a result, Lula regained his political rights. Fachin declared null and void all decisions of the 13th Federal Court of Curitiba, which must comply with the decision and refer the case files to the Federal Court of the Federal District, as well as the “loss of the object,” extinguishing fourteen cases pending before the STF questioning Sergio Moro's impartiality in Lula's convictions. On 15 April 2021, the plenary session of the Federal Supreme Court, by a majority vote from 8 to 3, officially overturned the convictions of the former president handed down by then-judge Sergio Moro in the context of Operation Car Wash.
The day after Justice Fachin's decision, the Second Panel of the STF, presided over by Justice Gilmar Mendes, decided to uphold the trial of Moro's suspicion in his actions in the Car Wash investigation. In addition to Gilmar Mendes, Justices Nunes Marques, Cármen Lúcia, and Ricardo Lewandowski voted in favor of upholding the trial. Fachin upheld his decision, arguing that the defense had presented “new and robust evidence, with serious facts,” which would require more time to analyze and that he, as rapporteur of the case, would have the prerogative to prevent the trial from proceeding, due to the loss of the object and prejudice of the habeas corpus petition filed by Lula's defense. After gaining access to conversations between Moro and Lava Jato prosecutors in Curitiba, the former president's lawyers considered that there were strong arguments demonstrating Moro's bias, such as the disclosure of wiretaps and authorization for coercive conduct.
