Opinion: Brazil’s Lava Jato: Chronicle of a Death Foretold

Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – On Thursday, March 22nd Brazil’s Supreme Court (STF) held a vote on a petition for habeas corpus filed by former President Lula. The close vote (6-5) technically only frees Lula from prison until April 4th when STF will debate the merits of Lula’s motion.

In practice, however, the decision presages the death of the Lava Jato investigations and the return of impunity for corrupt politicians.

From 1889 until 2009, Brazilian criminal law statutes determined that, upon conviction, criminals went to jail. They could still appeal, or seek a writ of habeas corpus, while serving their time.

In 2009, the STF held that Article 5 – LVII of the 1988 Constitution (“no one shall be deemed guilty until the judgment of conviction has become final”) necessarily meant that if you were appealing your conviction, you should not be in jail until you could make no further appeals.

In 2016, however, the STF overruled its prior holding and (by another 6-5 vote) permitted jailing convicted criminals, after their convictions had been affirmed by a federal Appellate Court (TRF).

This decision has been crucial to the success of the Lava Jato investigations, because it means that even rich and powerful criminals cannot avoid prison while appealing their convictions. Appeals beyond the TRF always take years, creating a risk that the statute of limitations will apply and the convicted criminal, even though guilty, will never have to serve any jail time.

By April 4th when the STF reconvenes to consider the case, the 4th TRF will have unanimously confirmed Lula’s conviction; under the 2016 STF decision, he should go to jail.

The current STF majority seeks at all costs to avoid that happening, but they want to avoid the appearance of it only applying to Lula. Therefore, on April 4th, the STF will likely expand its docket and consider two other pending cases that are generally applicable to all defendants.

In those cases, as well as that of Lula, a 6-5 majority will hold that no jail is possible until the sentence has become final.

When the decision is announced, there will be rejoicing in the halls of Congress, and in Executive and Legislative branches throughout Brazil, for it means the return of impunity for the rich and powerful.

“Let the crusading judges of Lava-Jato do their worst” the corrupt will exult, “because they can’t touch me! My lawyers will drag proceedings out for years and years, and I’ll never see the inside of a jail cell.”

Secure in the knowledge they can now avoid jail, the corrupt will no longer be tempted to plea bargain in exchange for shorter jail terms. The absence of plea bargaining will, for obvious reasons, inevitably lead to the failure of the Lava Jato investigations.

The six STF Justices who have protected Lula know full well that, by doing so, they have foretold the death of Lava Jato, just four years after its birth.

The Curmudgeon, along with the vast majority of Brazilians, deeply regrets that premature death.