Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – Today’s column is likely to be considered “wonky” by many, but the Curmudgeon feels that he ought to explain what is causing the nationwide debate over whether former President Lula should be imprisoned.

Michael Royster, aka The Curmudgeon.
Michael Royster, aka The Curmudgeon.

He was found guilty of corruption by a trial court and that court’s decision was unanimously affirmed by a three-judge panel of the federal appeals court.

The short answer is that Brazil’s 1988 Constitution contains a legal “jabuticaba”.

To explain: the jabuticaba fruit is native to Brazil, and is found nowhere else in the world. In political commentary, the term is widely used to cover highly unusual things that only occur in Brazil.

Article 5 of the 1988 Constitution contains a laundry list of dozens of individual rights and freedoms; among these is item LVII – “ninguém será considerado culpado até o trânsito em julgado de sentença penal condenatória”. In English: “No one shall be considered guilty until a criminal conviction has become a final judgment.” A “final” judgment is one from which no further appeals can be lodged.

In almost all other countries, the presumption of innocence ends upon a defendant’s being convicted of a crime. There, once the trier of fact and the judge of law have been convinced, beyond a reasonable doubt, that the defendant has committed a crime, it is no longer possible to presume a defendant’s innocence.

Not so in Brazil, where defense counsel will argue that, as long as a conviction can still be appealed, it may be overturned, and the defendant considered not guilty. Further, the reasoning goes, if you are not guilty, you should not be put in jail, absent extraordinary circumstances. You don’t even have to post bail to ensure you will not flee the jurisdiction of the court.

What is it about Brazil’s criminal justice system that led the 1988 Constitutional Assembly to insert this seeming jabuticaba “get out of jail free” card into Brazil’s highest law?

One answer is that, except for homicide, there are no juries in criminal cases. Judges are the sole triers of fact and imposers of the law. Judges are only human, and they do on occasion err. In fact, they err on far too many occasions — there are estimates that more than twenty percent of lower court decisions are reversed or modified on appeal.

But that is only part of the answer. Most European countries have the same “inquisitorial” form of criminal justice system, where the judge is the trier of both fact and law, but they do not extend the “presumption of innocence” to the final level of appeals. After conviction, defendants either post bail or remain in prison during their appeals.

What is unique about Brazil is that, unlike Europe, the presumption of innocence has never been part of Brazilian law. Not ever. Not under the Empire, nor the First Republic, nor the Getúlio Vargas regimes; most definitely, not under the military dictatorship, where defendants were presumed guilty.

All members of the 1987-88 Constitutional Assembly had experienced the 21 years of military dictatorship; many had been (wrongly) imprisoned or exiled, and most knew people who had been imprisoned, without even the right to habeas corpus. They resolved to err on the side of presumed innocence, and they did, by enacting Article 5 section LVII quoted above.

The Curmudgeon will consider the consequences of this choice, including the consequences to Lula and other politicians, in future columns.

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