2019 Vol. 2, Issue 1


HYBRID WAR IN BRAZIL: THE LULA CASE

Release date:2019-07-21
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HYBRID WAR IN BRAZIL: THE LULA CASE

 

Marina Gusmão de Mendonça[1]

 

ABSTRACT: Since independence in 1822, Brazilian history has been a succession of coups or coup attempts. On all these occasions, what was at stake was the attempt, on the part of the ruling classes and middle-class sectors, of establishing legal-political control over the State and preventing access by the working class to greater participation in national income and to the benefits of economic development, as well as delivering the country's wealth to foreign capital. In this context, the hybrid warfare against the country is conducted in defense of the interests of major international companies, such as the main oil companies, anxious to appropriate the Brazilian oil wealth. And one of the main instruments of this hybrid warfare is the so-called lawfare, that is, the use of legislation and the judicial system to persecute and destroy political opponents. This tactic was evident against President Luiz Inacio Lula da Silva, sentenced to 12 years and 1 month in prison and imprisoned on April 7, 2018. The objective was obvious: to prevent him from running for the presidential elections of 2018 and destroy the PT and all the left.

 

KEYWORDS: Brazil, hybrid war, lawfare, President Lula

 

 

I. Introduction

Since independence in 1822, Brazilian history has been configured as a succession of coups or coup attempts. During all this period, the country experienced political crises that threatened the constitutional order or led to its disruption[2]. On all these occasions, what was at stake was the attempt, on the part of the ruling classes and middle-class sectors, of establishing legal-political control over the State and preventing access by the working class to greater participation in national income and to the benefits of economic development, as well as delivering the country's wealth to foreign capital. And, at least since 1950, the ruling classes, allied with the media and international capital, sought to co-opt the middle classes and even some sections of the working class through reports of corruption in government and the spread of a supposedly apolitical moralism.

At present, these objectives have led to the adoption of tactics advocated by the so-called hybrid war[3] and have led the country to the greatest political crisis in its history. In fact, since the riots in June 2013, an unprecedented economic, social and political conflict had been foretold. In March 2014, another step was taken in this direction, with the beginning of the so-called Lava Jato Operation, which, as everyone knows, led to the arrest of several leaders of the Workers' Party (PT) and of those responsible for some of the main Brazilian companies. Finally, the open conflict would come from the re-election of President Dilma Rousseff in October 2014, when, at the close of the polls, the defeated opposition made clear the non-acceptance of the results. Since then, Brazil has had its economy virtually paralyzed, institutions have completely lost legitimacy, and the extreme right has acquired a popularity never seen before.

In this context, the hybrid warfare is conducted against the country by the United States (USA) and the other capitalist nations in defense of the interests of major international companies, such as the main oil companies, anxious to appropriate the Brazilian oil wealth. And one of the main instruments of this hybrid warfare is the so-called lawfare[4], that is, the use of legislation and the judicial system to persecute and destroy political opponents.

This tactic was evident against President Luiz Inacio Lula da Silva, sentenced to 12 years and 1 month in prison and imprisoned on April 7, 2018. The objective was obvious: to prevent him from running for the October presidential elections of 2018 and destroy the PT and all the left.

In this text, we will try to expose the main mechanisms of lawfare used against President Lula, culminating in a conviction that has absolutely no legal basis and a real imprisonment of a political nature.

 

II. The hybrid war against Brazil

At the beginning of her first presidential term in 2011, Dilma Rousseff enjoyed wide approval, as the economy continued to grow, and policies aimed at the popular sectors could be maintained. However, that year, the slowdown in the Chinese economy began and the economic crisis in Europe worsened, which would have serious impacts on commodity-exporting countries, such as Brazil. On the other hand, also in 2011, the government faced one of the chronic problems of the Brazilian economy, namely, that since the beginning of the 1980s the country has maintained one of the highest interest rates in the world, which has led to de-industrialization, a reduction in the investment capacity of the State and companies, and a rapid increase in public debt. Interest then began to be gradually reduced by the Central Bank (BC). However, the measure affected large interests of national and international financial capital and rentier sectors of the dominant and middle classes. From then on, a ruthless campaign of destabilization of Dilma Rousseff's government, led mainly by the country's main media, controlled by only four families, which made accusations of incompetence and corruption in government (LOPES, 2016, pp. 119-125).

A major impetus for this campaign would come from the second half of 2012, when the Federal Supreme Court (STF) began the trial of the accused in the "Mensalão scandal" (LEITE, 2013) which had erupted in 2005, still in the first Lula administration. Court sessions were broadcast live on television, as if they were novel chapters, and the media devoted entire issues to making very serious accusations against the PT's top leaders. In addition, the trial coincided with the electoral campaign of 2012: in these elections would be chosen the mayors of all the cities of the country and the members of the Municipal Councils. The PT was able to elect a large number of mayors, including some of the largest state capitals, such as São Paulo. Therefore, in addition to mobilizing the moralistic moods of the middle class (SOUZA, 2017; CHAUÍ, 2016; SOUZA, 2016) and some popular sectors against the party, the media clearly showed that they wanted to influence the results of the municipal elections.

The trial ended after the elections, and in it were convicted some of the PT's main leaders. In addition, the television showed live, with fuss, the arrest of José Dirceu and José Genoíno, former militants against the military dictatorship and important leaders of the party. Finally, in early 2013, the elected mayors took office, notably PT's Fernando Haddad, chosen to govern São Paulo, the country's largest city. However, despite the conclusion of the trial, the media campaign against the party did not cool.

On the other hand, the economic situation worsened, with the sharp reduction in trade balances, the increase in inflation and the growth of public debt. And, as many city halls and state governments increased the prices of public transportation, several popular demonstrations began, heavily repressed by police, especially in São Paulo. The reaction was immediate: in June 2013, the streets of the main cities of the country were taken by protesters, who reacted to the repression. And the more the police acted, the more the number of participants increased.

At first, the media treated the episode in a negative way, accusing the demonstrators of disturbing the lives of peaceful citizens and supporting repression. However, as the conflicts worsened and spread throughout the country, the press began to try to manipulate them, mentioning them as an expression of democracy, condemning repression and trying to hold the federal government responsible for what happened[5]. From then on, the demonstrations were taken by middle-class sectors, which attacked the government, saying they were apolitical and in favor of a ruthless fight against corruption (SOUZA, 2016, cap. 2). And Dilma Rousseff's popularity, which in March 2013 had reached 65 percent, dropped to 57 percent shortly before the protests, and to 30 percent at the end of June (FOLHA DE SÂO PAULO, 29/6/2013).

With the success of the tactic, the media continued to attack the government, blaming Dilma's incompetence for the worsening economic situation, demanding an increase in interest rates to contain inflation and giving unbroken news - even without evidence - of corruption in the government, seeking to sensitize mainly the middle class. And from March 2014, when the Lava Jato Operation began (LEITE, 2015), a real media war against the PT and the government began, accusing them of all the evil and blaming them for the corruption in the public institutions.

It should be noted that the campaign against the government and Dilma Rousseff were not sufficient to prevent her re-election in October 2014. However, the victory by a margin of less than 2% of the votes was the motto for the final attack and to unleash the PT and all the leftist forces. The strategy, based on government shutdown, daily reporting of corruption and destruction of the economy, would culminate, as we know, in the president's impeachment on August 31, 2016[6], paving the way for the defeated forces since 2002, and, from then on, committed themselves to implanting an ultra-neoliberal political-economic agenda (LÖWY, 2016; PAULANI, 2016; SOUZA, 2016).

In fact, from the outset, Michel Temer’s government spared no effort to eliminate much of the social advancement of workers, not only during the PT's term of office, but even those gained since the 1930 Revolution. And it promoted the delivery of national wealth to foreign capital, as evidenced by the change in legislation regarding the exploitation of oil in the pre-salt layer and the auctions held since then, by which foreign oil companies have earned the right to exploit these reserves almost without costs (BERCOVICI, 2017).

But there remained a problem for the Brazilian ruling classes and international interests: the presidential elections scheduled for October 2018, the results of which were imperative to control. And the greatest fear of the groups that seized power in 2016 was the possibility that President Lula would run again and win the election. It was necessary, therefore, to remove this hypothesis in any way. And this was done from measures aimed at condemning President Lula for some crime[7], in a case of lawfare that became a paradigm for fighting all popular governments that opposed the advance of the interests of foreign capital[8].

 

III. Lava Jato Operation

The facts pointed out here make evident the articulation between the press, the Brazilian ruling class and international capital in the construction of a political scenario in order to promote the resumption of power by representatives of these sectors. As seen, the rhetoric of political morality played a central role at various points in the country's political history. However, in its most recent version, the mobilization of a considerable portion of public opinion against the government was also possible through regulatory changes and the adoption of new institutional positions. Thus, it is worth taking a brief look at the changes that have taken place in legal doctrine and practice.

Under the pretext of fighting corruption, most of the high-impact actions in the recent Brazilian political crisis are linked to what has been known as Lava Jato Operation[9], corresponding to an investigation initiated by the Federal Police (PF) on March 2014, in which has revealed a series of illicit acts linked to money laundering and corruption. After several phases and with the follow-up of the Federal Public Prosecution Office (MPF), the operation estimates that the amounts involved in the actions investigated could be over ten billions dollars, including leaders from the main parties in Brazil, as well as large state-owned or mixed economy (such as Petrobras) and private companies (such as the large construction companies of the country)[10].

Before discussing the elements of legal practice that have served as the mainstay for Lava Jato Operation, it is necessary to mention a systemic aspect that guaranteed both the operation and the scope of the investigation. This is the institutional autonomy granted to the two sponsoring bodies of Lava Jato: the PF and the MPF. In recent presidential terms, it is possible to note that, although the PF was formally submitted to the Ministry of Justice (MJ), there was no interference in its dynamics, unlike what has always occurred. The same happened regarding to MPF, whose independence can be seen in several ways, including the President of the Republic seal on the name of its General Attorney chosen by the members of the institution itself. In both cases, functional autonomy created the conditions for independent actions without considerations of hierarchical relations, but it made possible the infiltration of corporativist agendas, individual desires and party interests in the institution.

One of the main innovations of the Brazilian legal system that strengthened the actions linked to Lava Jato Operation was sponsored by the Rousseff government: the Anti-Corruption Law (Law nº 12.846/2013). Directed by the Executive to the Congress, the bill gave rise to a legal document in which the corruptor – who had been treated as a victim of the corrupt agent by Brazilian jurisprudence and public opinion – could be convicted. In addition, the law establishes that a company involved in acts of corruption will be sanctioned even if there is no direct participation of its owners. It’s interesting to note two fundamental aspects of the Law: the punishment by up to 20% of the company's annual gross revenues and the possibility of a leniency agreement, by which it is possible to obtain a reduction of up to two thirds of the sanction to the corruptors in exchange of recognition of the authorship of crime and collaboration with the investigations. The high penalties values (capable of making the company financially unfeasible) and the compensations offered by the leniency agreement create conditions for the widespread use of the institute.

Another recent change, which profoundly transformed the dynamics of the Brazilian criminal process, was the advent of Law 12.850/2013. This legal diploma deals with the legal institute of plea bargain (YAROCHEWSKY, 2017, pp. 41-55) – something already present for more than two decades in Brazilian legal order - from a new perspective. An investigative and evidence-gathering instrument, it makes possible the identification of other members of the criminal organization and their crimes (article 4, I, of Law 12.850/2013). There are some interesting distinctive features in the use of the institute regarding the Lava Jato Operation.

The first concerns the impressive number of plea bargain agreements already concluded, which tends to create a probative set for the recognition of a great head of criminal organization. In addition, in Lava Jato's case, the plea bargains become public agenda, since they are invariably leaked to the media before even investigating the veracity of what has been denounced, constituting flagrant illegality. Finally, it should be pointed out that most of the plea bargains occurred related to Lava Jato are done with the delator in prison. Not a few defenders complain that their clients are pressured by the authorities to give away and say what they want to hear, at the risk of remaining indefinitely in jail and without judgment.

This is due to a peculiarity of the criminal process in Brazil: the figure of preventive detention. According to article 312 of the Criminal Procedure Code (CPP), the accused may be held in prison if, for example, it is convenient for criminal investigation[11]. Unlike temporary custody[12], preventive detention has no time limit and can be extended indefinitely. Thus, without trial and in disrespect of the presumption of innocence and various civil liberties, such a situation is not only illegal, but also a condition analogous to torture, and the accused is compelled to make the plea bargain agreement, whether with real or fictitious information, in order to be released.

In cases where proceedings are already underway, the possibility of cooperation with the courts is also of great interest to the defendant, in view of the STF's new understanding about the fulfillment of the sentence, even though there are appropriate procedural appeals (STF ADMITE EXECUÇÃO DA PENA APÓS CONDENAÇÃO EM SEGUNDA INSTÂNCIA). According to the Court itself, it is a decision that responds to the public's desire to see those responsible for corruption scandals punished. Such referral is clear violation of article 5, LVII, of the Federal Constitution (CF), which establishes the need for a final and un-appealable decision for the beginning of compliance with the sentence.

It should be noted that there is a chain of practices that threaten the condition of the accused and the rule of law itself, and the fragility of the evidentiary set obtained in such circumstances is clear. The way in which plea bargain and leniency agreement is applied in the Lava Jato deployments indicates the existence of objectives that go beyond the fulfillment of functional duties. In short, a situation is created in which any hypothesis of the organs of investigation and persecution ends up being confirmed, independently of the veracity.

Another point to highlight is the use of bench warrant for mere investigated as a form of publicity of the actions of the task force. The article 260, of CPP, establishes that bench warrant can only be done in the event of non-compliance with prior subpoena for interrogation. However, the great repercussion of these cases helps to sensitize public opinion in favor of the legitimacy of arbitrary actions - in addition to undermining the political forces involved. Amongst other similar episodes involving PT's historical leaders and private sector entrepreneurs, it is worth noting that President Lula was a victim of a bench warrant action, with broad media coverage, on March 4, 2016, although he never denied himself to cooperate with Justice (PINTO e SILVA, 2017).

With these considerations in mind, let us look at the specific issues regarding the case of President Lula, which evidence the practice of lawfare against him.

 

IV. The Lula case

The first question to be raised in the list of the numerous illegalities and arbitrariness committed by Judge Sérgio Moro, head of the 13th Federal Court of Curitiba, refers to the artifice that the magistrate used to become the person responsible for all actions related to the so-called Lava Jato Operation, and were exposed in detail by the journalist Joaquim de Carvalho (CARVALHO). However, the trick hurts one of the fundamental principles foreseen in the CF, referring to the question of the so-called natural judge. According to article 5, LIII, of CF, "no one shall be prosecuted or sentenced except by a competent authority". In addition, article 76, of CPP, establishes that "jurisdiction shall normally be determined by the place where the infraction is consummated or, in the case of an attempt, by the place where the last act of execution is practiced". Failure to comply with these standards generates absolute nullity of the whole process.

Judge Sérgio Moro has used repeated devices to consider himself the natural judge responsible for all cases involving corruption in Petrobras (JARDIM, 2017, pp. 110-114), including the one in which the MPF filed a complaint against President Lula for having allegedly accepted it and received a triplex apartment in the city of Guarujá, state of São Paulo, in exchange for the practice of legal acts for the benefit of OAS Empreendimentos. The complaint was received by Judge Moro who, in his sentence of July 12, 2017, condemned Lula to 9 years and 6 months of imprisonment.

However, the conviction is null, since Judge Sérgio Moro could never be considered the natural judge of the case, since, in the event that President Lula actually committed the crime of corruption, the natural judge should be one of the Federal Court of Santos, in the state of São Paulo. The argument that the distribution of the case would have occurred by connection (article 76, of CPP) is not supported, especially considering that in the sentence, the magistrate acknowledges that the crime has no connection with cases of corruption in the Petrobras (JARDIM, 2017, pp. 110-114).

On the other hand, and even supposing that the case had some connection with Petrobras and that the distribution by connection was legitimate, the jurisdiction of the 13th Federal Court of Curitiba to judge it would be questionable, in view of article 109, I, of CF, which establishes that federal judges shall be responsible for prosecuting and judging "cases in which the federal, state or federal public entities are interested as authors, resisters, assistants or opponents, except those of bankruptcy, work accidents and those related to the Electoral Justice and Labor Justice". However, as Afranio Silva Jardim points out, Petrobras is a legal entity of Private Law (JARDIM, 2017, p. 110).

The second serious problem involving the conviction of President Lula refers to the fact that, actually, there was no crime. In effect, the Brazilian Penal Code (CP) classifies passive corruption in its article 317: "to solicit or receive, directly or indirectly, for itself or for others, even if it were not in office or before assuming it, but because of it, undue advantage, or accept promise of such an advantage". As João Ricardo W. Dornelles and Sérgio F. Graziano Sobrinho point out, "for the characterization of the offense of passive corruption it is necessary that the public agent makes or commits himself to do an act covered by his functional competencies" (DORNELLES; GRAZIANO SOBRINHO, 2018, p. 105). That is to say: the consummation of the crime of passive corruption requires that the public agent practices an act under his jurisdiction, which would be impossible, since the supposed agreement with the OAS on the reforms in the property would have occurred in 2014, when the President was Dilma Rousseff. However, in the judgment, the court alleges that the defendant would have committed an indeterminate act under his jurisdiction, which is a complete aberration from the doctrinal and jurisprudential point of view. Moreover, in the judgment of the Federal Regional Court of the 4th Region (TRF4), which upheld the first-degree sentence, the judges corroborated the novelty, stating that the

An act under an agent jurisdiction must be represented in the common sense, as represented by lay persons, and not in a technical and legal sense. For the purposes of the penalties of Articles 317 and 333 of the Criminal Code, it’s enough that the bribed act falls within the scope of powers in fact inherent to the exercise of the agent's duties (Apud STRECK, 2018, p. 121)[13].

As regards the evidence attached to the case, they do not exist (nor could they exist, since there is no crime). The ruling is based exclusively on matters disclosed by the newspaper O Globo, dated March 10, 2010, which states that Lula owns the property, and the unproven plea bargain of Leo Pinheiro, former president of OAS, who was arrested and co-defendant in the proceedings. First, as Eder Bomfim Rodrigues questioned, "does O Globo have the legal competence to affirm, with public faith, that one is a real estate owner or not?" (RODRIGUES, 2018, p. 82). On the other hand, and considering the case of Leo Pinheiro, it is evident that a person in these conditions will do everything to get rid of the chain, which insanely compromises the reliability of his statements (RODRIGUES, 2018, p. 82). It should be noted that Pinheiro was duly rewarded for his plea bargain, having his original sentence of 10 years and 8 months of confinement reduced by TRF4 for 3 years and 8 months in a semi-open regime (EX-PRESIDENTE DA OAS LEO PINHEIRO TEM PENA DIMINUÍDA PELO TRF4).

As there is no evidence to indicate that President Lula has effectively received an apartment from the construction company OAS or any amount or good that demonstrates the practice of an act that was in his sphere of power, the sentence refers to the property as having been "assigned", which, according to Diogo Bacha e Silva and Alexandre Gustavo Melo Franco de Moraes Bahia, is characterized as "a new figure of effective rights still lacking legislation" (BACHA e SILVA; BAHIA, 2018, p. 76)[14].

President Lula was also convicted of money laundering, a crime foreseen in article 1, caput, of Law 9.613/1998, where can be read: "to hide or disguise the nature, origin, location, disposition, movement or ownership of property, rights or values arising, directly or indirectly, from crime". According to Pierpaolo Cruz Bottini, "punishment for money laundering supposes the concealment of the illicit origin of the good, that is, the distance between the product and the crime that gave rise to it" (BOTTINI, 2018, p. 224) . However, he remarks that

If the foregoing crime is described as passive corruption of a contractor to benefit Lula, money laundering would entail acts of deviating ownership of the property from both the contractor and the beneficiary of the advantage in order to conceal any relationship between the politician and the company that may raise suspicions about the origin or nature of the transaction that resulted in the transfer of the property (BOTTINI, 2018, pp. 224-225).

However, this was not the case, on the contrary. OAS maintained its ownership of the property and, in November 2009, transferred all economic and financial rights to the apartment and other units of the building to the Caixa Econômica Federal (CEF), as collateral for the purchase of company debentures by the bank. In this way, it could not, under any circumstances, have transferred those rights to Lula without depositing the corresponding amount in a CEF account, which it did not do (CAIXA CONFIRMA QUE AINDA TEM O TRIPLEX COMO GARANTIA DA OAS).

All these facts clearly indicate the practice of lawfare against President Lula. But there are countless others, as João Ricardo W. Dornelles and Sérgio F. Graziano Sobrinho point out:

1) defense restraint with the rejection of documentary and expert evidence, in addition to the non-recognition of witnesses favorable to the defendant; 2) the short period for the study of the documents gathered by Petrobrás; 3) the rejection of questions to witnesses regarding the plea bargain agreement (...); 4) refusal to include new testimonials; 5) the inadequacy between the complaint filled by the MPF and the sentence, since the defendant was denounced for having received the property of Guarujá and convicted of having received na offer for the apartment; 6) the complaint stated that the alleged benefit would be due to contracts with Petrobras without, however, having a relationship of such contracts with the alleged improper advantage (DORNELLES; GRAZIANO SOBRINHO, 2018, p. 105).

In the case of TRF4's appeal, the authors point to other evidence of lawfare: "(...) the speed of the judgement - 4 months when, on average, the TRF4 judges in 15 months; (...) the trial of the process passed the other seven resources of the Lava Jato that were previously in court” (DORNELLES; GRAZIANO SOBRINHO, 2018, p. 103).

 Finally, they raise an aspect that attracted the attention of a large part of the Brazilian legal community, that is, the fact that the sentence was increased to 12 years and 1 month in a unanimous form. According to the authors, "everything indicates that the previous adjustment of the amount of sentence among the judges was aimed at preventing the penalty initially imposed would be time-barred" (DORNELLES; GRAZIANO SOBRINHO, 2018, p. 104). Considering that the STF, in a decision of October 5, 2016, had admitted the execution of the sentence after conviction in second instance, TRF4 authorized the immediate start of the sentence imposed on Lula, although there were still appeals.

However, the STF’s decision was a preliminary one, and there was no final judgement on the merits of the Direct Constitutional Actions 43 and 44, proposed by the National Ecological Party (PEN) and by the Federal Council of the Brazilian Bar Association (OAB), which requested the grant of a precautionary measure with the objective of suspending the early execution of the sentence of all judgments rendered in second instance (STF ADMITE EXECUÇÃO DA PENA APÓS CONDENAÇÃO EM SEGUNDA INSTÂNCIA). From then on, intense pressure was put on the STF to judge the merits of those actions, which was systematically prevented by the President of the Court, Minister Carmen Lucia, who refused to raise the issue.

Faced with the imminent risk of Lula's arrest, the former president's defense filed a preventive habeas corpus before the STF which, in a trial held on April 5, 2018, broadcast on a national radio and television network, rejected the request (NOTÍCIAS STF). Afterwards, Judge Sérgio Moro ordered the arrest of Lula (MORO DECRETA PRISÃO DE LULA), who surrendered to the police two days later. It seemed that the purpose of all lawfare actions perpetrated against the former president had been reached, and that he could not run for the presidential election scheduled for October 2018.

However, in light of the sharp legal-institutional attacks on Lula since the beginning of the process, his defense, on July 28, 2016, had appealed to international human rights institutions, filing a complaint before the United Nations (UN) Human Rights Committee, which is responsible for verifying compliance with the obligations related to the 1966 Civil and Political Rights Pact. Among other norms, the Pact establishes protection against arbitrary arrest or detention (article 9), the presumption of innocence (article 14), the right to a fair trial (article 14) and the right to privacy (article 17), which in Lula's case were systematically violated by the Federal Court (JF), the MPF and PF[15].

Although imprisoned, Lula maintained his candidacy, which was registered in the Supreme Electoral Court (TSE) on August 15, 2018, with Fernando Haddad as a candidate for vice president. Immediately, several parties interested in preventing the former president candidacy, as well as the General Attorney Office (PGR), filed applications to challenge the registration. However, on August 17, 2018, the UN Human Rights Committee issued a preliminary decision to ensure Lula the right to run in the 2018 elections (MARTINS; MARTINS). It should be noted that numerous jurists and parliamentarians expressed their support for the unconditional fulfillment of the decision, since the Civil and Political Rights Pact had been ratified by the Brazilian Senate and had become part of the national legislation, and there was no need to discuss its applicability.

However, the TSE, denying the validity of the decision of the UN Human Rights Committee, and fulfilling yet another step in the process of lawfare against Lula, rejected its application for registration of his candidacy by a vote of 6 to 1, in a decision on August 31, 2018, giving the Coalition O Povo Feliz de Novo (PT/PCdoB/PROS) the ten-day term to replace the candidate (TSE INDEFERE PEDIDO DE REGISTRO DE CANDIDATURA DE LULA À PRESIDÊNCIA DA REPÚBLICA).

The result everyone knows: Fernando Haddad, of the PT, was nominated to replace Lula, and Manuela D'Ávila, of the Communist Party of Brazil (PCdoB), was presented as a candidate for vice president. However, they ended up defeated in the second round of the election, held on October 28, 2018. And the winner, the federal deputy and retired Army captain, Jair Bolsonaro, of the Social Liberal Party (PSL), preferred candidate of the national and international financial capital and of all the forces that supported the deposition of Dilma Rousseff, announced, as early as November 1, the name of Sérgio Moro as the future Minister of Justice of his government.

In this regard, said Christian Zanin Martins, Lula's lawyer:

The formalization of Judge Sérgio Moro's entry into politics and the revelation of conversations he maintained during the presidential campaign at the top of the President-elect's campaign prove definitively what we always affirm in appeals to the Brazilian courts and also to the UN Human Rights Committee: Lula was prosecuted, convicted and imprisoned without having committed a crime, with the clear objective of interdicting him politically. It is lawfare in its essence, since Lula undergoes intense political persecution through abuse and misuse of laws and legal procedures (ZANIN: MORO MINISTRO DE BOLSONARO É o ‘LAWFARE’ NA SUA ESSÊNCIA)[16].

 

V. Final considerations

As it turned out, the Judiciary, MPF and PF were fundamental institutions in the hybrid war waged in Brazil, with the objective of eliminating popular forces from the electoral process and guaranteeing the maintenance of power by the sectors that promoted the deposition of Dilma Rousseff, in 2016. Together with the media, they have acted incessantly to convict Lula for some crime and prevent him from running for the presidential elections scheduled for October 2018, in an absolutely obvious process of lawfare, that the former president's defense always reports. And if there were any doubts in this regard, they were fully resolved by the appointment, on November 1, 2018, of Judge Sérgio Moro to the position of Minister of Justice of the new government.

It should be noted that the practice of lawfare in Brazil - which had already been tested against President Manuel Zelaya of Honduras, in 2009, and against President Fernando Lugo of Paraguay, in 2012 - became a paradigm for the use of same methods in other countries, as shown by the recent cases of Cristina Kirchner in Argentina and Rafael Correa in Ecuador. In fact, the Brazilian example, by complexity, should serve as a parameter for the liquidation of popular leaders and criminalization of the left throughout Latin America. As Emir Sader pointed out,

Brazil, which had begun the cycle of military dictatorships, opened the cycle of exception regimes (SERRANO) on the continent. (...) Hybrid warfare is the new imperialist strategy, after military coups have become infeasible. It combines the judicialization of politics with the criminalization of the image of popular leaders by the media to impose fraudulent electoral processes that fail to express the democratic will of the people. The Brazilian case was the first in which it was necessary ... to face electoral processes, it is the exemplary case of how it is possible to falsify elections within the institutions, with their complicity. (...) The regime of exception introduced by the coup of 2016 is part of the hybrid war, the new imperialist strategy. It insinuates itself within institutions to de-characterize popular sovereignty in democracy, forging governments with the appearance of legitimacy (...) (SADER). 

 

References

Bacha e Silva, Diogo; Bahia, Alexandre Gustavo Melo Franco de Moraes. “O TRF da 4ª Região, o Tribunal de Segurança Nacional e o Superior Tribunal Militar: qualquer semelhança não é mera coincidência”. In: Proner, Carol et. al. (Org.). Comentários a um acórdão anunciado: o processo Lula no TRF4. São Paulo: Outras Expressões. (2018).

Bercovici, Gilberto. “O golpe do impeachment”. In: Proner, Carol et al. (Org.). A resistência ao golpe de 2016. Bauru: Canal 6. (2016).

________________. “Política do petróleo: a política recente do petróleo no Brasil”. In: Alves, Giovanni et al. (Org.). Enciclopédia do golpe. Bauru: Canal 6. Vol. 1. (2017).

Bottini, Pierpaolo Cruz. “Análise do conceito de lavagem de dinheiro na condenação de Lula”. In: Proner, Carol et. al. (Org.). Comentários a um acórdão anunciado: o processo Lula no TRF4. São Paulo: Outras Expressões. (2018).

“Brasil é alvo de guerra híbrida, diz analista” (available at: <http://tutameia.jor.br/brasil-e-alvo-de-guerra- hibrida/?fbclid=IwAR0uGoARFcCksWq1seU_SQfeJJB9aljLILtGKqnvEVh9ZanjeFEnfZqlCw>, accessed on: 21/10/2018).

“Caixa confirma que ainda tem o triplex como garantia da OAS” (available at: <https://www.diariodocentrodomundo.com.br/essencial/caixa-confirma-que-ainda-tem-o-triplex-como-garantia-da-oas/>, accessed on: 28/10/2018).

“Carvalho, Joaquim de. Banestado e Youssef: como o juiz Sergio Moro agiu para não perder a Lava Jato”. (available at: <https://www.diariodocentrodomundo.com.br/banestado-e-youssef-como-o-juiz-sergio-moro-agiu-para-nao-perder-a-lava-jato>, accessed on: 27/10/2018).

Chauí, Marilena. “A nova classe trabalhadora brasileira e a ascensão do conservadorismo”. In: Jinkings, Ivana et al. (Org.). Por que gritamos golpe. São Paulo: Boitempo (2016).

de Plácido e Silva. Vocabulário jurídico. Rio de Janeiro: Forense. Vols. 1-2. (1994).

Dornelles, João Ricardo W.; Graziano Sobrinho, Sérgio F. C.. “Os três de Porto Alegre: o Estado de exceção, o Direito Penal do inimigo e a criminalização da política”. In: Proner, Carol et. al. (Org.). Comentários a um acórdão anunciado: o processo Lula no TRF4. São Paulo: Outras Expressões. (2018).

“Ex-presidente da OAS Leo Pinheiro tem pena diminuída no TRF4” (available at: <http://g1.globo.com/jornal-nacional/noticia/2018/01/ex-p0residente-da-oas-leo-pinheiro-tem-pena-diminuida-no-trf4.html>, accessed on: 28/10/2018).

Jardim, Afrânio Silva. Lava Jato In: ALVES, Giovanni et. al. (Org.). Enciclopédia do golpe. Bauru: Canal 6. Vol. 1. (2017).

Leite, Paulo Moreira. “A outra história do mensalão”. São Paulo: Geração Editorial. (2013).

_________________. O outro lado da Lava-Jato. São Paulo: Geração Editorial. (2015).

Lopes, Mauro. “As quatro famílias que decidiram derrubar um governo democrático”. In: Jinkings, Ivana et al. (Org.). Por que gritamos golpe. São Paulo: Boitempo. “2016”.

Löwy, Michael. “Da tragédia à farsa”. In: Jinkings, Ivana et al. (Org.). Por que gritamos golpe. São Paulo: Boitempo. (2016).

Martins, Cristiano Zanin; Martins, Valeska Teixeira Zanin. “O caso Lula na ONU e a distância entre teoria e a vigência dos direitos humanos”. (available at: <https://www.conjur.com.br/2018-ago-22/opiniao-lula-comite-direitos-humanos-onu>,  accessed on: 1/11/2018).

Moniz Bandeira, Luiz Alberto. “Armações internacionais”. In: ALVES, Giovanni et. al. (Org.). Enciclopédia do golpe. Bauru: Canal 6. Vol. 1. (2017).

“Moro decreta prisão de Lula” (available at: <https://www.bbc.com/portuguese/brasil-43663767>,  accessed on: 1/11/2018).

Notícias STF (available at: <http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=374437>, accessed on: 1/111/2018).

Paulani, Leda Maria. “Uma ponte para o abismo”. In: Jinkings, Ivana et al. (Org.). Por que gritamos golpe. São Paulo: Boitempo (2016).

Pinto e Silva, Olavo. “Uso e abuso da condução coercitiva” In: Proner, Carol et al. Comentários a uma sentença anunciada: o processo Lula. Bauru: Canal 6. (2017).

“Popularidade de Dilma cai 27 pontos após protestos”. Folha de São Paulo, 29/6/2013 (available at: <http://www.1. folha.uol.com.br/poder/2013/06/1303541-popularidade-de-dilma-cai-27-pontos-apos-protestos.shtml>, accessed on: 6/10/2016).

Rodrigues, Eder Bomfim. “Estado pós-democrático, lawfare e a decisão do TRF-4 contra o ex-presidente Luiz Inácio Lula da Silva”. In: Proner, Carol et al. (Org.). Comentários a um acórdão anunciado: o processo Lula no TRF4. São Paulo: Outras Expressões. (2018).

Romero, Enrique Santiago. Lawfare: a guerra jurídica contra a democracia na América Latina (available at: <http://www.cartamaior.com.br/?/Editoria/Politica/Lawfare-a-guerra-juridica-contra-a-democracia-na-America-Latina/4/41503>, accessed on: 26/8/2018).

Sader, Emir. Brasil, laboratório da guerra híbrida (available at: <https://www.brasil247.com/pt/blog/emirsader/373742/Brasil-laboratório-da-guerra-híbrida.htm>, accessed on: 1/11/2018).

Serrano, Pedro Estevam. Medidas de exceção como o novo paradigma autoritário (available at: <https://www.cartamaior.com.br/?/Editoria/Estado-Democratico-de-Direito/Medidas-de-excecao-como-novo-paradigma-autoritario/40/41443>, accessed on: 20/8/2018).

Souza, Jessé. A radiografia do golpe. Rio de Janeiro: Leya (2016).

_________________. “A elite do atraso: da escravidão à Lava-Jato”. Rio de Janeiro: Leya. (2017).

“STF admite execução da pena após condenação em segunda instância” (available at:          <http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=326754>, accessed on: 1/11/2018).

Streck, Lenio Luiz. “Do apelo ao senso comum aos poderes de fato: o novo Direito 3.0 que legitima o arbítrio ou ‘quando a episteme vira doxa’” In: Proner, Carol et. al. (Org.). Comentários a um acórdão anunciado: o processo Lula no TRF4. São Paulo: Outras Expressões, 2018.

“TSE indefere pedido de registro de candidatura de Lula à Presidência da República” (available at: <http://www.tse.jus.br/imprensa/noticias-tse/2018/Setembro/tse-indefere-pedido-de-registro-de-candidatura-de-lula-a-presidencia-da-republica>,  accessed on: 1/11/2018).

Yarochewsky, Leonardo Isaac. Delação premiada In: ALVES, Giovanni et al.  (Org.) Enciclopédia do golpe. Bauru: Canal 6. Vol. 1. (2017).

“Zanin: Moro ministro de Bolsonaro é o ‘lawfare na sua essência”” (available at: <https://brasil247.com/pt/247/brasil/373898/Zanin-Moro-ministro-de-Bolsonaro-é-“o lawfare-na-sua-essência”.htm>, accessed on: 1/11/2018).

 


[1] Majored in History and Law at the University of São Paulo (USP); MS and Ph.D. in Economic History at the College of Philosophy, Linguistics and Human Sciences of the University of São Paulo (FFLCH-USP); Post-Doctorate in Social Sciences at the College of Philosophy and Sciences of University Estadual Paulista (UNESP) - Marília Campus; Associate Professor in the Department of International Relations of Escola Paulista de Política, Economia e Negócios (EPPEN) from the Federal University of São Paulo (UNIFESP) - Osasco Campus; Collaborating Professor in the Social Sciences Post-Graduation Program of the University Estadual Paulista (UNESP) - Marília Campus (e-mail: marinamendonca@uol.com.br).

[2] Among the main episodes, the following stand out: the abdication of Pedro I to the imperial throne, in 1831; the decree of majority of Pedro II, in 1840; the Proclamation of the Republic, in 1889; the resignation of Marshal Deodoro da Fonseca to the Presidency in 1891; the 1930 Revolution; the so-called Constitutionalist Revolution, in 1932; the implantation of the Estado Novo dictatorship in 1937; the deposition of Getúlio Vargas, in 1945; the attempt to prevent Vargas' taking office in 1950; the putting down and the suicide of Getúlio, in 1954; the attempt to prevent Juscelino Kubitschek’s taking office and the subsequent "preventive coup" in 1955; the Revolt of Jacareacanga, in 1956; the Revolt of Aragarças, in 1959; the so-called parliamentary solution, which reduced João Goulart’s presidential powers , in 1961; the civil-military coup of 1964; the impeachment of President Fernando Collor de Mello in 1992; and, finally, the deposition of President Dilma Rousseff in 2016.

[3] According to American political scientist Andre Korybko, "hybrid wars are identity conflicts provoked by external agents who exploit historical, ethnic, religious, socioeconomic, and geographical differences in countries of geopolitical importance through the gradual transition from colored revolutions to unconventional warfare, in order to destabilize, control or influence multipolar infrastructure projects by weakening the regime, changing the regime or reorganizing the regime " (Brasil é alvo de guerra híbrida, diz analista, p. 3. And referring to brazilian case, he adds: "There is a very intense hybrid war being fought in Brazil at this moment and it affects every aspect of the life of every citizen ... Over the last two years , external agents have been trying very subtly to condition the population to turn it against the Workers' Party, using instruments like Lava Jato Operation, backed by the NSA, which took on a life of its own " (Idem, p. 7). NSA is the acronym for National Security Agency, a leading United States (US) security agency.

[4] According to Eder Bomfim Rodrigues, lawfare is "a practice of perverse use and law manipulation that aims to annihilate the reputation and promote the greatest number of lawsuits against anyone, even if all these actions are devoid of minimal legal grounds. The purpose is to harm a person, regardless of whether there are violations of the Constitution and disrespect for fundamental rights by the state apparatus. What is at stake in lawfare is the misuse of the law to achieve an end in the political arena. It is a fraudulent and perverse practice that takes the right to be used as a mechanism to exclude someone from the universe of citizenship and its transformation into an enemy to be hunted and delegitimized. In this persecutory environment, there is a wide publicity in the media of all the actions and judicial procedures carried out and those still to be carried out. With this, there is a selective and spectacular performance of the Judiciary, the Public Prosecution Office and the police forces, all with the clear objective of showing the 'transparent functioning' of state institutions and influencing public opinion around one or all of the cases that involving a processed person" (RODRIGUES, 2018, p. 81).

[5] Recall that the repression was done mainly by the Military Police (PM), force subordinated to the state governments. In the case of São Paulo, the state government was under the command of Geraldo Alckmin of the Brazilian Social Democracy Party (PSDB), which had been defeated three times by PT in the last presidential elections.

[6] Countless jurists denounce the fact that the impeachment of President Dilma was set up as a parliamentary coup d'état, since the accusations made for a crime of responsibility were not legally based (BERCOVICI, 2016).

[7] According to article 2, I, of Complementary Law 135/2010, remain ineligible "those who are convicted, in a final decision or handed down by a collegiate judicial body, from the conviction until the expiration of eight years after compliance of the penalty ".

[8] Some cases and their chronology are extremely significant: opening of proceedings for alleged corruption against the former president of Argentina, Cristina Kirchner, on November 2, 2017 and on March 6, 2018; the arrest on April 9, 2018, in Colombia, of the deputy elected by the Revolutionary Armed Forces of Colombia (FARC) party, Jesús Santrich, for the purpose of extraditing him to the United States on charges of conspiracy to export cocaine for that country; in Ecuador, the sentencing to 6 years of prison for corruption of the vice president, Jorge Glas, on December 14, 2017, the expedition of international order of capture and arrest of the former President Rafael Correa, on July 3, 2018, and the arrest, on June 17, 2018, in Madrid, of the lawyer Pablo Romero, who was a member of the Correa government team (ROMERO,  pp. 2-4).

[9] According to Luiz Alberto Moniz Bandeira, Lava Jato Operation "constitutes a foreign intervention in Brazil, with (...) manipulation of the law and judicial processes, business as delays, a market game in which the price is the reduction of the penalty for political and military purposes, the dismantling of Brazil as a regional power, part of an asymmetric legal war, a lawfare, according to the concept developed by United States Air Force Colonel Charles J. Dunlap Jr. in the essay 'Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts”, presented at Duke Law School in 2001. And so foreign interests, the international financial elite and large sectors of the Brazilian business sector, with the support of the corporate media, are in charge of the Executive, Congress and even from the Federal Public Prosecution Office and the Judiciary" (MONIZ BANDEIRA, 2017, v. 1, p. 19).

[10] According to Afranio Silva Jardim, "it was agreed to call 'Lava Jato Operation' all judicial persecution aimed at 'combating' corruption crimes resulting from illegal contracts signed between businessmen and some mixed-economy companies (Petrobrás, Eletrobrás) as well as with the BNDES, in connection with the electoral financing of campaigns. (...) Lava Jato begins in 2014, in the city of Curitiba, State of Paraná, where Judge Sérgio Moro, head of the 13th Federal Court, has ample competence to 'act' in police investigations, and the Federal Public Prosecution Office created the so-called 'Task Force', with exclusive attribution of Attorneys of the Republic, Federal Police Delegates, Federal Revenue Auditors and large support structure" (JARDIM, 2017, v. 1, pp. 106-107).

[11] According to article 312, of CPP, "preventive custody may be ordered as a guarantee of public order, economic order, for convenience of criminal investigation, or to ensure the application of criminal law, when there is proof of the existence of the crime and sufficient indication of authorship" .

[12] According to article 1, of Law 7.960/1989, a person "will be temporary arrest: I - when essential for the investigations of the police investigation; II - when the person indicated does not have a fixed place of residence or does not provide information necessary to clarify their identity; III - when there are reasonable grounds, according to any evidence admitted in criminal law, of authorship or participation of the accused in the following crimes (...) ". And the article 2 of the same law establishes: "temporary arrest shall be ordered by the Judge, in the face of representation of the police authority or request of the Public Prosecution Office, and shall have a term of 5 (five) days, extendable for an equal period in case of extreme and proven need".

[13] It should be clarified that article 333, of CP, deals with active corruption: "to offer or promise an undue advantage to a public official, to determine him to practice, omit or delay act under his jurisdiction".

[14] Effective right is the "legal relationship that attributes or invests the person, whether physical or juridical, in the possession, use and enjoyment of a thing, corporeal or incorporeal, that is his property" (DE PLÁCIDO e SILVA, 1994, v. 1-2, p.94). And, according to article 1.225, of Civil Code (CC), these are the effective rights: "property, surface, easements, usufruct, use, housing, right of the promising buyer of the property, pledge, mortgage, granting of special use for housing purposes, the granting of effective right of use, and the rights arising from the provisional immission in possession, when granted to the Union, to the States, the Federal District, the Municipalities or their delegated entities and their assignment and promise of assignment".

[15] The facts that would testify to such allegations are the aforementioned bench warrant of the former president on March 2016, the leakage of some of his confidential data, the systemic practice of linking temporary and preventive custodies to plea bargain agreements and the illegal disclosure of interceptions phone calls.

[16] See: Zanin: Moro ministro de Bolsonaro é o ‘lawfare na sua essência” (available at: <https://brasil247.com/pt/247/brasil/373898/Zanin-Moro-ministro-de-Bolsonaro-é-“o lawfare-na-sua-essência”.htm>, accessed on: 1/11/2018).





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