Lula free – What does it mean?

[AMICUS CURIAE] On November 8th, the former Brazilian President Lula was freed from prison. He was incarcerated in 2018, following his conviction for corruption and money laundry being confirmed on appeal by a Federal Court, in the process known as the “triplex case” (he was considered guilty for receiving an apartment as bribery from a company in charge of major public infrastructure works in Brazil).

The reason Lula is now free was not a revision of his condemnation, but an extraordinary “turn the tables” ruling by the Brazilian Supreme Court (Supremo Tribunal Federal – STF), which relates to the Operation Car Wash (OCW) – the largest joint initiative to fight corruption in Brazil, acting from 2014 until today, through a task force of several police departments, district prosecutors and judges.

In early 2016, the STF had decided that convicted criminals could start serving their sentence times immediately after their trials in the second instance. The decision was grounded in an interpretation of the Section 5, LVII, of the Brazilian Constitution (stating no one will be deemed guilty before a final conviction). According to such understanding, the appeal phase would close the exam of facts and evidence related to the indictment, setting the guilt of the defendant, even though the process could continue due to many other judicial review resources. Amid the success of the OCW, that ruling met society’s call to end impunity of corrupt politicians.

On November 7th, 2019, two of the eleven STF’s Judges changed their previous position and the Court settled, by six votes to five, the new precedent: serving of criminal sentences should only start after the final decision in the lawsuit. This latest ruling is based on a literal interpretation of the Section 5, LVII, considering that a final conviction depends on the exhaustion of any judicial remedies.

The new precedent is said to be a response from the Court to allegations that the OCW could have been misused by some of its task force members to obtain political advantages, as former judge Sergio Moro, now Brazilian Minister of Justice and the most popular minister of the government. Moro was the judge who first sentenced Lula and later was appointed as a minister by current President Bolsonaro, Lula’s main political adversary (what could be seen as a conflict of interests).

Even though Lula’s walking from prison does not mean that the former President was acquitted of the criminal charges, it is a clear sign of questioning of the OCW legitimacy and weakening of the fight against corruption.


Source: Comitê Lula Livre

Source: Comitê Lula Livre

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