Brazil: experts to examine judicial mishandlings in Lava Jato case

Attorneys file petition for judicial misconduct in the ongoing probe against the country’s former president

Brasil de Fato | Curitiba (PR)

Cristiano Zanin and Geoffrey Robertson in Geneva / Ricardo Stuckert

Last September, lawyer Rubens Francisco along with his colleague Cibele Braga traveled to Washington D.C. where they signed and submitted a petition to the Inter-American Commission of Human Rights (IACHR), alleging judicial irregularities in the handling of the Lava Jato corruption investigation in Brazil. 

The petition argued that the judicial proceedings, related to former Brazilian President Luiz Inácio Lula da Silva’s alleged involvement in the Petrobras scandal, had violated his right to be presumed innocent until being found guilty. Since 2016, he has been under investigation as part of the anticorruption campaign known as Operation Lava Jato. 

The legal submission issued to the IACHR argues that the handling of his case represented a violation of the principles outlined in the Cost Rica pact, which was signed and adopted in 1978 by the IACHR, stipulating that all individuals be entitled to a fair trial, due process, and the right to personal liberty. 

The lawyers are hoping that the International Court of Human Rights will try the case of former President Lula da Silva. 

In an interview with Brasil de Fato, Rubens Francisco cited that the ongoing legal probe into the former President represents an example of partial judicial proceedings.  

"If you prosecute and convict Lula under these circumstances, it will set a dangerous legal precedent that would allow any citizen to be incarcerated and to rot in jail for the rest of their life. If Lula falls gets incarcerated he will take the entire country with him," Francisco warned. 

Francisco’s concerns were also articulated in the IACHR legal motion, which warned that several anonymous public officials are routinely subject to partial actions and rulings carried out by high-ranking judicial figures. 

"President Lula is not the only victim of the Lava Jato investigation. There are several anonymous Brazilians who are at the mercy of a partial judiciary, which garners wages well above the average income earned by public servants," the document states.   

The two lawyers also requested a subpoena of Minister Cármen Lúcia, who currently presides as the president of the Supreme Federal Court, which is assigned the task of monitoring and enforcing the legal principles enshrined in the Brazilian constitution. 

The IACHR legal motion was the second petition to be issued in an international court system. 

In July of 2016, Cristiano Zanin and Valeska Zanin Martins, attorneys for former President Luiz Inácio Lula, referred their client’s case to the United Nations Human Rights Committee in Geneva, Switzerland, arguing that he has been subject to a politically motivated investigation. 

The dossier outlined alleged violations of the International Covenant on Civil and Political Rights and alleged abuses of power by judge Sergio Moro.

In particular, the legal document cited several violations and arbitrary acts carried out by judge Moro, who they accused of siding with the prosecution and failing to ensure the rights of the defendant. 

The petition alleges that Luiz Inácio Lula’s right to privacy, freedom from arbitrary arrest and right to be presumed innocent until found guilty had been violated, stating that the judicial procedures represented a clear breach of Brazil's constitution and international law. 

Before the trial began, the former president repeatedly tried to have Moro removed, on the basis that he was prejudiced, however these motions were denied – mostly by Moro himself.

Lula da Silva’s first trial began in November 2016. However, he is currently appealing a legal sentence that was handed down by judge Moro last July. If the appeal is not granted then he will be ineligible to compete in the general election.

Shortly after the ruling, Geoffrey Robertson, high-profile British human rights lawyer hired to represent President Lula before the UN Human Rights Committee, said that he was not surprised by the outcome of the ruling due to Brazil’s unfair judicial and prosecutorial procedures. 

International observers argue that the escalation of the Lava Jato investigation in 2016, which coincided with the impeachment process of former President Dilma Rousseff, was central to the opposition efforts in creating a political climate that was conducive for her removal.  

In 2016, at the height of the impeachment process, the general secretary of the Organization of American States (OAS), Luis Almagro, questioned the partiality of the impeachment process. 

"Here we have a person who has no investigation, no complaint, no indictment in any court and we find among those who will judge her in Congress people who have been accused, are under investigation and have cases pending," Almagro told journalists. 

Meanwhile, in a recent interview with Brazilian newspaper Folha de S. Paulo, Roberto Caldas, president of the Inter-American Court of Human Rights, observed abuses of power within the Brazilian judiciary system with regards to the handling of the lava Jato case. "We have observed various abuses of power with regards to the judicial proceedings of this case," Caldas told Folha de S. Paulo. 

Similarly, Caldas issued public criticisms last year of the Brazilian prosecution against Former President Lula, after the court released illegally tapped phone calls between Lula da Silva and Dilma Rousseff. 

The petition to the HRC, which sits at the UN in Geneva, informed the press that his case was not considered urgent and would be debated in 2018. 

Since the HRC petition was first submitted, Luiz Inácio Lula da Silva’s lawyers claim that members of the Lava Jato task force have continued their aggressive and impartial efforts to prosecute the former president. 

"For over three years, Lula has been subject to a politically motivated investigation. No credible evidence of guilt has been produced, and overwhelming proof of his innocence blatantly ignored. This politically motivated judgment attacks Brazil’s rule of law, democracy and Lula’s basic human rights. It is of immense concern to the Brazilian people and to the international community," his lawyers said in a recent statement. 

Edition: Ednubia Ghisi | Version in English: Nate Singham