Superior Court Judges Lula’s Third Appeal Against Conviction

By Xiu Ying, Contributing Reporter

RIO DE JANEIRO, BRAZIL – The Fifth Panel of the Superior Court of Justice (STJ) will judge on Tuesday (23rd) the appeal filed by former President Luiz Inacio Lula da Silva’s defense in an attempt to reverse the conviction on the Triplex case, in Guarujá (SP).

The trial was officially announced by the STJ on Monday evening. Lula was sentenced to 9 years and 6 months in prison on July 12, 2017 in connection to the Triplex case.

The ruling was issued by Judge Sérgio Moro, the current Minister of Justice, in the Court of First Instance convicting Lula for passive corruption and money laundering.

In January last year, the conviction was upheld by the Eighth Panel of the Federal
Court of the 4th Region (TRF-4), a court of Second Instance, increasing the sentence in 12 years and one month in prison.

Moro and the three Panel judges established Lula received from OAS a triplex apartment in Guarujá in exchange for contracts signed with Petrobras.

After Lula was convicted in the Second Instance Court, the defense filed a request to the Federal Supreme Court (STF) to reverse arrest.

However, the request was rejected and the understanding reached in 2016 was upheld. As a result, the former president was arrested in São Paulo and taken to Curitiba.

Since the beginning of the investigation, Lula’s defense claims that the Public Prosecutor’s Office did not produce evidence against him, adding that the former president did not commit any crime before, during or after his term. Lula has always claimed his innocence.

Lula’s defense is fighting for the former president’s acquittal on the grounds that he is innocent and did not receive an apartment as bribery.

It also claims that there is no evidence in this regard in the proceeding, sustaining that the Federal Court had no jurisdiction to examine the case, following the Supreme Court’s recent decision in relation to crimes related to the keeping of a slush fund.

The defense has filed for the annulment of the conviction and the referral of the case to Electoral Court. Alternatively, they argue that Lula was convicted of corruption and money laundering under the same case and, therefore, the penalty should be reduced.

The Supreme Court of Justice could:
*reject the appeal and uphold the sentence as established by TRF-4;
*fully comply with Lula’s request and reverse the sentence, determining the release of the    former president;
*partially accept the appeal and reduce the sentence of the former president (depending      on the term of the sentence).

In the end of 2018, Lula’s appeal was analyzed by Lava Jato’s rapporteur at the STJ, Minister Felix Fischer. Fischer denied the appeal and ordered the case to be closed. Lula’s defense, however, entered a specific appeal. This is appeal will be judged on Tuesday by the STJ Panel.

The Fifth Panel of the STJ is made up of five ministers, but one of them, Joel Paciornik,
has declared that he is barred. As such, only four will judge the appeal:

*Felix Fischer (Lava Jato’s rapporteur);
*Reynaldo Soares (president of the Fifth Panel);
*Jorge Mussi;
*Marcelo Navarro Ribeiro Dantas.

Under STJ regulations, in the event of a tie, a Minister with equivalent court time as the other Panel will be summoned, such as Minister Antonio Saldanha.

Any decision of the Supreme Court of Justice (STJ) can be subject to an appeal filed to the Panel.

The defense has already appealed to the Supreme Federal Court (STF) which will only start analyzing the case once the matter is closed in the STJ.

Once the STJ issues its order, the last decision on the conviction will be up to the Supreme Federal Court (STF).