Brazil: a curious conviction

On 12 July ex-President Luiz Inácio Lula da Silva was sentenced to 9 years and 6 months imprisonment by Judge Sérgio Moro.  In contrast to his practice with the others found guilty in the lower courts in Operation Car Wash, Moro avoided remanding in custody Brazil’s most high-profile political leader.  He argued:  ‘Prudence recommends that the accused should remain at liberty pending appeal’ to avoid ‘certain traumas’ – in other words, mass demonstrations in support of Lula. The defence will appeal first to the Federal Regional Court of Region 4, based in Porto Alegre, the capital of the state of Rio Grande do Sul.  The president of the court has said that the appeal is likely to be heard by August next year.  If he is convicted, Lula will go to prison;  he will be unable to stand in the October 2018 presidential election, and he will be ineligible to stand for election for seven years.

Playing to win

In a statement on the day after the sentence, the founder of the Workers Party (PT) declared:  ‘Anyone who thinks that this is the end of Lula has another think coming.  The right to decree my end lies with the people of Brazil.’  Lula confirmed that he would run for President in 2018, trying for a third term.  ‘If anyone thinks that this sentence has taken me off the field, let me tell them that I’m playing, and playing to win.’  He added that only history would be able to judge him.

The judge decided that there was evidence that Lula was the legal owner of a three-storey apartment at Guarujá beach in the state of São Paulo in which the construction company OAS allegedly invested R$2.15 million (US$690,000) in return for advantages received in contracts with the state oil company Petrobras. Lula denies ownership of the apartment.  He admits that his wife, Marisa, who died last February, had wanted to purchase it, but the sale did not go ahead because Lula felt that the site would not guarantee him privacy because it make him liable to constant harassment from the public.

The defence insists that the prosecution never produced the deeds for the apartment bearing the name of the Lula da Silva family, and that the charge therefore has no basis. If the appeal court upholds Moro’s sentence, Lula will be able to appeal to the Superior Court and, ultimately, to the Federal Supreme Court.

Plea bargain ‘evidence’

The verdict delivered against the PT leader is not based on evidence, but on a statement from a person who had been engaged in corruption and was arrested by the Car Wash operation, José Adelmário Pinheiro Filho, better known as Leo Pinheiro.  Pinheiro is the owner of OAS, and has been sentenced to 44 years’ imprisonment, 10 years and 8 months of which were on a charge related to Lula’s case.  Leo Pinheiro was allowed by Judge Moro to spend no more than two and a half years in prison and to apply for a community sentence even before he compensates Petrobras for the loss he caused the company. According to the Car Wash prosecutors, OAS paid R$ 87 million (US$ 28 million) in bribes to obtain preferential terms in contracts with Petrobras.  Of this sum R$ 16 million (US$ 5 million) allegedly went to the PT and R$ 3.7 million (US$ 1.2 million) went directly to Lula, R$ 2.4 million (US$ 770,000) for the purchase of and work on the apartment and R$ 1.3 million (US$ 417,000) for storing gifts the ex-President received during his two terms in office.  Moro dismissed this last charge. What crimes was Lula convicted of.  In the judgment, which runs to 280 pages, divided into 962 clauses, the judge specifies ‘receiving undue advantage from OAS as a result of a contract with Petrobras’ and ‘concealment and dissimulation of the ownership of Apartment 164-A, consisting of three storeys, and of having benefited from the improvements carried out’.

According to Moro, ‘The OAS group, directed by the accused José Adelmário Pinheiro Filho, handed over the apartment without charging the appropriate price and absorbed the cost of the improvements, with the intention of benefiting President Luiz Inácio Lula da Silva.’ The judge chose the right time to pronounce Lula guilty.  He left office at the beginning of 2011 with a popularity rating of 87%.  On the same day parliament approved the changes to the labour laws proposed by President Temer, which deprives Brazilian workers of rights won over the last 70 years, such as having labour courts to decide on disputes.  Under the recently passed law, disputes will now be decided by direct negotiations between bosses and employees…  On the same day the Chamber of Deputies Commission on Constitution and Justice rejected the report of Deputy Sérgio Zveiter (PMDB-RJ) recommending investigation of the charge brought by the country’s senior public prosecutor, Rodrigo Janot, against Temer of accepting bribes.  A new rapporteur was appointed, and Deputy Paulo Abi-Ackel (PSDB-MG) presented a report proposing that no action be taken on Janot’s accusation.  The proposal was approved by the commission and will be put to a vote of the full Chamber on 2 August.  To be approved it will require the votes of 342 members out of a total of 513. On the same day that these events took place in the commission, ex-minister Geddel Vieira Lima, a faithful ally of Temer’s, serving a sentence for a Car Wash offence, was granted the right to leave prison and serve his sentence under house arrest.  Lula’s conviction diverted attention from news that was so damaging to the government Temer established after the coup against President Dilma Rousseff.

A speculative verdict

Lula’s defence maintains that the fact that he was not sent to prison is a ‘recognition of the fragile basis of the verdict’ and the ‘prudence’ in avoiding ‘certain traumas’ proves the political character of the conviction.  ‘It is a purely speculative verdict that ignores the evidence of innocence and relies on testimony given by Mr Leo Pinheiro as informal state’s evidence, with no obligation to tell the truth and with the clear intention of finding an escape from his problems with the courts,’ said lawyer Cristiano Martins. Brazil is battling extremely rough political waters.  In less than a year there have been the parliamentary coup that overthrow President Dilma Rousseff, the Federal Chief Prosecutor’s charge against Temer, the current President, and the conviction of ex-President Lula. A striking feature of the situation is that the Car Wash investigation only exists thanks to the Lula and Rousseff governments.  Corruption has always been an endemic feature of the Brazilian state, from the monarchy to the republic.  What is new is that it is coming to light and that those who offer bribes and those who accept them are being punished.  This is thanks to the PT governments, which strengthened the public prosecutor’s office and the federal police.  It is a matter of regret that there was not also political reform, for which the nation and the PT are now paying the penalty.  This reform would have improved the mechanisms for monitoring the use of public funds, those who administer them or benefit from them;  it would have reduced the number of political parties, would have reinforced party ties so that politicians could not switch parties to gain a momentary advantage.  It would also have improved the monitoring of party campaign funding. Judge Moro himself recognises in his judgment:  ‘There must be due recognition of the good work done by the government of ex-President Luiz Inácio Lula da Silva in strengthening monitoring mechanisms covering the prevention and punishment of the crime of corruption, especially through the investments made in his first term in the federal police, through the strengthening of the office of the Federal Comptroller General and the preservation of the independence of the federal public prosecutor’s office through the choice of its head from a list drawn up by members of the institution’ (paragraph 793 of the verdict). Lula is also facing four more charges of corruption.  Other senior PT leaders have already been convicted in the Car Wash process:  José Dirceu to 23 years (he is currently under house arrest), Antônio Palocci to 12 years (he is in prison), João Vaccari Neto to 15 years (he is in prison), and Delúbio Soares to 5 years (he is at liberty awaiting the hearing of his appeal). Why are the Brazilian people not flocking into the streets to defend Lula and with ‘TEMER OUT’ banners, as they have done in earlier times for other political causes?  Among the factors involved I would highlight growing unemployment, currently affecting 14 million workers, disenchantment with politics, the recurrent vandalism in recent demonstrations, which produces fear of violence, and the role of social media as instruments of protest and condemnation.   In Brazil today there is no political force with sufficient representativity to organise significant street demonstrations. This article was translated for LAB by Francis McDonagh.

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Frei Betto is a Dominican friar and adviser to popular movements. Imprisoned and tortured for his political activism by the Brazilian dictatorship that seized power in 1964, Frei Betto was also a special adviser to Lula in his first term as President and coordinated the civil society component of the Zero Hunger campaign. A prolific author, with over 60 books published;  the best-known internationally is his book of interviews with Fidel Castro, Fidel and Religion. He is also the author of A mosca azul – reflexão sobre o poder (‘The Bluebottle – a Reflection on Power’), published by Rocco.