In a ruling that required four sessions with intervals of one week, the eleven ministers (magistrates) of the STF ruled by a majority of six to five that the imprisonment of the convicted person is executed only when all possibilities of judicial remedies are exhausted.
Received by dozens of militants outside the headquarters of the Federal Police, where he was detained for 580 days, Lula announced that he will tour the country as he did several times in the past.
He said he leaves without grudges, but criticized the "rotten band of the Brazilian State" and the judicial system and the social conditions of the people that have worsened in recent years. You can improve with a government "that does not lie as much as Bolsonaro on Twitter," he said referring to the president of the extreme right, in power since January.
Lula is the main beneficiary of this new interpretation of subsection LVII of article 5 of the 1988 Constitution, which ensures that "no one shall be held guilty until transit in a conviction court."
His freedom, although possibly temporary, may encourage opposition to the president Jair Bolsonaro, from the extreme right. The electoral defeat in October 2018, with Lula already in prison since April, dismantled the opposition forces, especially the leftist Workers Party (PT) of Lula.
Actually, the elections sealed the dismantling of the political system that had been built in the redemocratization process, after the dictatorship that the military imposed on Brazilians from 1964 to 1985.
The widespread corruption, revealed by the Lava Jato operation (carwashing of vehicles), initiated in 2014 by prosecutors of the Public Prosecutor's Office (prosecutor's office) and federal police, was the determining factor in the collapse of the parties and the seduction of the antipolitics represented by Bolsonaro .
The triumph of that former Army captain, who always maintained close relations with the barracks, represented a redemption of the Armed Forces. In the government that took office in January, one third of the ministers and hundreds of senior officials in various ministries are military.
The absence of an organized and active opposition is reflected in the saying that "Bolsonaro is his greatest opponent", given his actions that arouse rejection, for authoritarianism and contempt for the environment, science, human rights and culture.
It is a picture that can change, due to the leadership of Lula, who presided over the country from 2003 to 2010 and whose popularity allowed Dilma Rousseff to be chosen as his successor, keeping the PT in power until 2016.
Despite the stain of corruption, which led others of its former leaders to jail, the PT remained the party with the highest representation in the Chamber of Deputies, with 56 seats. It also continues to be the majority in the Northeast, the second most populated region in Brazil.
The fear of analysts and moderate, centrist politicians grows, however, that a free Lula and an awakening of the PT will reinforce the “between extremes” polarization that dominated the 2018 elections and led to the triumph of Bolsonaro.
The general assessment is that the rejection of Lula and his party, due to corruption and the economic crisis at the end of the thirteen years of the PT government, gave the former captain the decisive votes.
Lula judicial backdrop
The STF now returned to the understanding that it had approved by a majority of seven votes to four in 2009, recognizing the presumption of innocence until the final conviction of the inmate, exhausted all possible instances of appeal, which the Constitution clearly establishes.
But in 2016, with the rise of the Lava Jato operation and a public opinion calling for the end of impunity for “white collar” criminals, the STF reviewed its ruling and decided that those convicted in the second instance can be imprisoned, that is to say by an appellate court, even if they have the possibility of resorting to higher courts.
This is the case of Lula, convicted in 2017 by the judge Sergio Moro, symbol of the anti-corruption operation and current Minister of Justice and Public Security. His sentence was later ratified by the Southern Federal Regional Court, with a twelve-year prison sentence.
The crime was sentenced to have received his wife as a "gift" a three-story apartment on a beach near São Paulo, as an alleged bribe of a large construction company benefited with contracts from the state-owned oil company Petrobras.
Moro became a popular hero for judging and imprisoning powerful politicians and businessmen, but his entry into the Bolsonaro government and breaking legal rules damaged his credibility. In particular, in the case of Lula, dialogues with prosecutors were reached this year to arrange positions, something prohibited in Brazil, in which his bias and interest in imprisonment were revealed.
Scope and consequences of the failure
The decision of the eleven supreme ministers was by a minimum majority of six votes against five.
The Brazilian judicial system, with four instances and an infinite number of possible resources, favors the impunity of the rich and powerful, who can pay good lawyers to extend the process until the prescription of the accusations.
In addition, the tests are examined only in the first two instances, the superiors are used to review the procedures. And in all the most advanced countries, imprisonment is applied after the second phase and even the first instance, the most interested in punishing corruption argue.
Now the STF returned to the jurisprudence of 2009, in prison only after the completion of the transit in the courts, even with the least possible majority.
Judge Gilmar Mendes He changed his vote, arguing that in 2016 he defended the “possibility” of imprisonment after a second instance conviction, but that in practice the prison became “mandatory”, which requires a correction.
However, there was no lack of speculation that the change was due to the new political situation. Three years ago there was strong interest from the right in weakening the PT and driving Lula away from the presidential dispute, in which he was a favorite according to polls. And Mendes is known as a judge well connected with right-wing politicians.
The STF suffered a lot of wear and tear on its credibility due to found failures, measures taken individually by its members and questionable decisions, such as some that favored the creation of new parties, which resulted in fragmentation into thirty parties with parliamentary representation.
This latest ruling on prison of convicts aroused a new wave of criticism: “a wrong decision” of the STF, said the National Public Ministry Association.
Lava Jato prosecutors said in a joint note that the decision is "in dissonance with the (popular) feeling of rejection of impunity and the fight against corruption, the country's priority."
They estimated that 38 of those convicted after investigations of the operation will get their freedom. But there are many more common prisoners in the country. There are about 4900 imprisoned after conviction in the second instance that may benefit from the new jurisprudence of the STF, according to the National Council of Justice, a corrective body.
The decision does not eliminate precautionary and preventive prisons that are applied at any stage of the judicial process, even before convictions, in case of defendants who are dangerous to society or can obstruct justice, destroying evidence, for example, clarified the defenders of The new jurisprudence.
The decision is valid for all those who have their processes open, but the case of Lula that “contaminated” the trial, according to Judge Mendes, weighed heavily.
The attitudes assumed by Lula, who is unable to participate in new elections for the conviction on appeal and faces eight other processes, will have a strong influence on Brazilian politics, where a dispersed resistance tries to contain the authoritarian veleities of a government with its image international very deteriorated, especially for its anti-environmentalism.
- Edition: Estrella Gutierrez