Lula da Silva Imprisonment: “As of Today, Lula Can not be a Presidential Candidate”

Despite the efforts of his supporters, Lula will for now remain in jail ahead of Brazil's presidential elections.

Lula’s leftist supporters deem the charges against him to be politically motivated (PanAm Post).

Although Brazil is in the same continent, both its language and the functioning of its judicial system can generate confusion among Spanish speakers. Now that former president Lula da Silva is in prison and there are calls for his release, there remain more questions than answers.

While supporters of former president Lula da Silva demand that he be released from prison in order that he can run as a presidential candidate, it is the justice system, not public opinion, which will have the last word.

The PanAm Post recently spoke with legal expert Luis Claudio Martins de Araujo to clarify some doubts regarding Lula’s incarceration, legal status, and political future.

To better understand the judicial process, Martins explains which legal parties are involved in Lula’s case. The “debtor-rapporteur” is the judge who, in normal situations, would be responsible for conducting the proceedings before the court; that is, a second level judge.

Whereas a “judge-on-call” would normally be responsible for conducting the proceedings when the court is in recess, on weekends, and during exceptional and urgent cases. That is to say, this type of judge works in special and extraordinary circumstances.

What is Lula’s current situation? What happened?

The president of the Federal Regional Court of the Fourth Region ruled that the decision of the debtor-rapporteur (second level judge) should prevail over the decision made by the judge-on-call.

Is there enough evidence to imprison him?

This judgment corresponds to the judge of the case. But Judge Moro and the Federal Regional Court of the 4th Region have ruled that there was sufficient evidence. In parallel, the Federal Supreme Court examined the habeas corpus requested by the former president, which could be followed by the sentence after the decision rendered by the court.

Is this a case of political persecution or does he really deserve to be imprisoned?

This question is quite complex. The most important fact is that the former president, today, can not present himself as a candidate in the upcoming elections due to the “Clean Record Act,” as a result of the judgment rendered by the Federal Regional Court of the 4th Region.

Why is Lula’s imprisonment so relevant as evidence of the functioning of the justice system?

In theory, the argument used to support the evidence of the proper operation of the justice system, especially by those who defend the “Lava Jato” Operation, would be that no one should be exempt from the application of legal norms; no one should be above the law.

Those who have a different perspective, argue that the case is political persecution, intended to prevent Lula from running in this year’s elections.

Lula and Correa talk about the “judicialization of politics”; is this just a pretext to seek their own freedom?

The “judicialization of politics” implies the institutional rise of the judiciary branch, which leads judges to issue rulings on grounds that are not necessarily technical and legal, moving to play political roles, and thereby usurping legislative and executive functions.

What is the probability of Lula being released? If this happens, would it be an injustice or a proof of transparency?

The “Law of the Clean Record” provides in Article 26-C that “the official body of the court to which the appeal against the official decisions corresponds, may, in a precautionary manner, suspend the ineligibility whenever there is plausibility of the claim and provided that the order has been expressly required, under penalty of preclusion, on the occasion of the filing of the appeal “.

That is to say, the criminal and electoral sectors, despite having communication points, are not confused. Thus, the criminal conviction by the court, in theory, leads to Lula’s political ineligibility, but the Superior Court can suspend that ineligibility.

The expert tells us that despite the order of immediate release issued by Judge Favreto, hours later Judge João Gebran Neto, of the Federal Regional Court of the 4th Region, which is overseeing the case, blocked the order.

Lula will remain in detention, and ineligible to run for higher office, for the time being.

Martins is a postdoctoral candidate in Law from the Federal University of Rio de Janeiro; He holds a Doctorate in Law from the State University of Rio de Janeiro, and was a visiting scholar in Cambridge and Oxford. He also holds a Master in Law from the Federal University of Rio de Janeiro (UFRJ), and was a professor of the Brazilian Institute of Capital Markets and UFRJ. He was an attorney in the legal department of Petrobras.

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