Rio de Janeiro, Brazil – Last week, in a surprise decision, a judge of the Brazilian Supreme Court canceled all corruption convictions against former President Luiz Inacio Lula da Silva, restoring his political rights and opening the door to a possible presidential election in 2022.
Lula, the left-wing leader of the Workers’ Party (PT), aged 75, not yet confirmed if he intends to show up next year, but he and his defense team see the judge’s decision as a testament to his innocence.
In an address to the nation on Wednesday, Lula described the sweeping anti-corruption case in which he was convicted as “the biggest judicial lie told in 500 years of Brazilian history.”
However, legal experts have pointed out that the judge’s decision could still be overturned – and many questions remain unanswered about what will follow.
“If the elections were held today, Lula could be a candidate for the presidency,” said Renato Ribeiro de Almeida, a lawyer specializing in electoral and state law at the Polytechnic of the University of São Paulo.
“However, in order for him to remain eligible, he will have to remain free from conviction until the nomination is registered in August 2022. By then, Lula could be convicted again.”
In his March 8 ruling, Judge Edson Fachin ruled that Lula’s four corruption convictions – two still pending – were not held in the appropriate place of trial.
Fachin said the federal court in the southern city of Curitiba that tried the former president was not competent to do so and referred all related cases to a federal court in the capital, Brasilia.
In July 2017, Lula was convicted of money laundering and corruption in connection with improvements to a beachfront apartment on the São Paulo coast, which the court ruled to be a bribe. of a construction company. He served 580 days in prison before being released in November 2019 on appeal.
The convictions stem from Operation Car Wash (Lava Jato), a massive anti-corruption investigation involving the Petrobras Oil Company, which brought down hundreds of Brazil’s most powerful politicians and business leaders. At the time, Curitiba was at the center of anti-corruption investigations.
Fachin accepted a multi-year argument from Lula’s defense attorneys that since Lula was president and resided in Brasilia at the time of the allegations – and since the corruption case against Lula was unrelated to Petrobras, and therefore to Car Wash – the case should be sent to the Federal Court in Brasilia for a new trial.
Fachin has now overturned convictions related to Lula’s beachfront property, as well as other charges that were still pending, including donations to the Lula Institute and improvements to a farm – but the judge did not invalidate the evidence gathered during the investigation.
Full court to render the decision
Fachin’s decision can still be overturned. Brazil’s attorney general appealed to the Supreme Court on March 13, which is expected to deliver a decision in the coming days.
Bruno Fernandes, a criminal lawyer and criminal law expert at Braga and Fernandes Lawyers, a Rio de Janeiro firm, said the trial court is unlikely to overturn Fachin’s decision.
“This is because Fachin has always been a supporter of Operation Car Wash and it is not credible to imagine that he made this decision without the support of the Supreme Court justices,” Fernandes told Al Jazeera.
Given the short lead time before the elections and the fast pace of the Brazilian justice system, few believe that a new trial could be completed within the next 16 months.
But Marilda Silveira, a specialist in electoral law and member of the Brazilian Academy of Electoral and Political Law (Abradep), did not rule out the possibility that Lula could be convicted again, and therefore prevented from running for president.
“Many factors could change. The electoral law may change, the position of the Supreme Court and the deadline for registration of presidents may change. In Brasilia, they could basically adjudicate cases quickly, ”she told Al Jazeera. “But some processes take years.”
Another question mark
Even if a new trial could take place in time, a separate court petition seeks to withdraw all evidence and charges against Lula on the grounds that former Federal Judge Sergio Moro, who oversaw Lula’s case, did not have been neutral.
Messages leaked by The Intercept in 2019 revealed that Moro was actively leading prosecutors in the case.
Moro acted as justice minister in President Jair Bolsonaro’s far-right government from January 2019, just months after delivering the ruling that rendered Lula ineligible for the 2018 election – raising questions about whether the investigation was politically motivated.
In Brazilian law, cases are assigned at random to prevent judges and defendants from being able to influence the process.
But if the cases are inextricably linked, this rule can be circumvented. Prosecutors initially argued that the link between Lula’s and Petrobras convictions meant he was due to stand trial in Curitiba, but leaked messages showed even prosecutors believed the link to be questionable.
“Lula’s defense questioned the legitimacy of the court seat for five years,” said Fernandes, who added that he believed Moro’s investigation had gone beyond legal limits and “failed to honor the Lula’s right to a fair trial “.
Supreme Court Justice Gilmar Mendes voted to bring Moro to justice on Tuesday over allegations the former judge failed to act impartially in Lula’s case. Although a trial has been announced, a specific date for the hearing has not yet been confirmed.
If Moro is convicted, all of the evidence he has gathered will be rejected, making it unlikely that there will be enough time to fully reconsider Lula’s case before next year’s election.
Moro continues to deny the wrongdoing, claiming that “fancy assumptions” were made about the leaked messages and that the attacks were “unfair”. For his part, Bolsonaro responded to the leaked messages by threatening to jail The Intercept reporter, Glenn Greenawald, for unspecified crimes.
Renato Janine Ribeiro, professor of ethics and philosophy at the University of São Paulo, also said Moro’s alleged bias was seriously unethical.
“And to top it off, Moro accepted a post as minister from Bolsonaro after helping to condemn the only name that could have beaten Bolsonaro in the 2018 election. The lack of ethics was immense,” she said .
Meanwhile, observers have also questioned the timing and motives of Fachin’s decision, with Bolsonaro accusing the judge of having “a strong connection” to Lula’s political party.
Alberto Carlos Almeida, a political scientist from the Brasilis Institute in São Paulo, said that Al Jazeera Fachin’s decision “has both a judicial and a political aspect”.
Lula, a very popular president during his eight years in office, led the 2018 presidential elections before the initial corruption conviction prevented him from running, opening the door for Bolsonaro.
The former Army captain, who spent more than 30 years in the backbench of Congress before winning the 2018 competition, championed the Operation Car Wash program during his campaign, describing himself as a staunch underdog of the fight against corruption.
However, “given [Bolsonaro’s] catastrophic response to COVID-19, the Supreme Court could have decided that it would be better to have Lula as a candidate than not, ”Almeida told Al Jazeera, as the country struggles to obtain increase in coronavirus deaths and infections under control.
Some suspect that Fachin’s decision might have attempted to save what remains of Operation Car Wash. By setting aside all of Lula’s cases, Fachin essentially eliminates the focus of Moro’s trial, which could save the former judge from grave humiliation.
Fernandes said the judge’s technical decision defends Moro and the operation.
“There is speculation that if Moro is considered [a] suspect, then it could contaminate other cases, ”Fernandes said, adding that public perception of Operation Car Wash has changed since 2019 when Moro was chosen as Bolsonaro’s justice minister and the leaked messages have surfaced.
“Before you had a very strong operation with a lot of support and popular praise… now even judges who were once staunch supporters of [Operation Car Wash] began to change position.