Supreme Court Decision Paves the Way for Lula to Seek Annulment of his Conviction

RIO DE JANEIRO, BRAZIL – The Federal Supreme Court’s (STF) Second Panel decision on Tuesday, August 27th, which overturned the conviction of former Petrobras CEO Aldemir Bendine could pave the way for former president Luiz Inácio Lula da Silva to also seek to reverse his 12-year, 11-month prison sentence, imposed by judge Gabriela Hardt, under Operation Lava Jato involving the Atibaia site lawsuit.

In the Bendine case, the majority of justices embraced the defense’s argument, which criticized the fact that counsel for the former president of the oil company was forced by Moro to submit their final brief while co-defendant Odebrecht whistleblowers were submitting the same document — containing allegations against the leftist.

The former CEO, who had his conviction for corruption and money laundering confirmed by the Federal Regional Court of the 4th Region, has now escaped serving his sentence of seven years and nine months. He had been indicted for receiving R$3 million from Odebrecht.

Before submitting their final briefs in the criminal case, Lula’s defense counsel had requested to submit their closing allegations only after the whistleblowers had submitted theirs.

Lawyer Cristiano Zanin, defending the former president, told the magistrate that it was “reasonable to guarantee Lula the right to submit his final brief at a later date than those of the co-defendants, including formal and informal whistleblowers, the latter desperate to endorse the prosecution’s thesis and expedite their pleas bargains.”

“The version and posture of such defendants, of course, have a clear accusatory stamp. They are much more aides to the prosecution than are defendants themselves.”

According to Lula’s counsel, “at the end of the proceedings, these defendants do not aim to demonstrate their innocence, because they have already admitted to wrongdoing in relation to the facts described here and have pledged to point out the misdeeds committed by others.”

“In this way, they seek to corroborate their reports — whether formally or not — so that the effectiveness of their cooperation is acknowledged in the sentence, as well as mitigating or exempting their penalty,” said Zanin.

“In fact, to disregard the prosecutorial role of such defendants is to close our eyes to the truth,” he argued.

Lula’s petition had been submitted on November 19th, 2018.

Request denied

The judge, however, stated that “the petition to grant a period for final briefs to be submitted by the defense, only after the submission of final briefs by counsel for the cooperating defendants and defendants intending to enter into an agreement, has no legal grounds, for which reason it is denied”. The decision is dated November 21st.

“As already stated in the record, the defense of the cooperating defendants is not the prosecution. It is not appropriate to make a distinction between cooperating defendants and non-cooperating defendants, giving a procedural advantage to some to the detriment of others,” she noted.

“On the other hand, the cooperating defendants have already testified in court, disclosing what they knew, and there is no chance of the defense being surprised by their final briefs,” concludes Gabriela Hardt.

Procedural matters

In deciding, Hardt then granted nine days for all defense counsel in the lawsuit to submit their briefs.

On the last day of the period, January 7th, the former president’s counsel delivered its final briefs at 7:30 PM. Thereafter, at 10:15 PM, counsel for Odebrecht’s former CEO, Marcelo Odebrecht, submitted its final brief.

On February 6th, the judge sentenced the defendants. Lula was convicted of the crimes of passive corruption and money laundering due to the refurbishments on the site, allegedly financed by contractors OAS and Odebrecht.