Lawfare (Or, Simply, War)

! ! ! "! 978-987-722-309-5 Introduction “Comments on a notorious verdict: The trial of Lula” might be the most important judicial document published in Brazil for decades. The present selection of articles came to exist after a spontaneous movement, and significant enough as well, of Brazilian and foreign lawyers who carefully verified the verdict rendered in the extent of the procedure which was processed at the 13ª Vara Federal de Curitiba, in the case that was known at the media as “the Guarujá triplex”. Beyond the unprecedented aspect of the criminal conviction of an ex-President in political circumstances, in thesis not comparable to last century Brazilian dictatorships, the verdict, which in large scale was expected as a non-surprising closure of this criminal process, provoked immediate reaction between the ones who read it and were committed only with the purpose of trying to understand the reasons why Luiz Inácio Lula da Silva is being punished for the criminal acts of passive corruption and illicit asset laundering. The certainty of conviction was a fact. Admirers and opponents of the ex-President were aware that there wouldn’t be another verdict. The hesitation was in knowing the conviction reasons, normative requirement of the 1988 Constitution, which by the inevitable political repercussions of the cited procedure, showed the 1987-1988 Constituent’s right act when lifting the decision foundations to the constitutional warranty level of the process. Only recently, after twenty years of an intense judicial battle starred by Fernando Fernandes, by coincidence Paulo Tarciso Okamoto’s lawyer, who is a defendant together with the ex- President in this “Guarujá triplex” case, it was achieved to accomplish the Federal Supreme Court decision, bringing the trials audios to be known which the Superior Military Court (SMC) recorded during 1964-1985 dictatorship. The cited trials, now made public, reveal the democratic virtues of the process publicity and of the decisions motivation. Sentences like “I’m going to take a revolutionary decision, leaving the law aside, because he can’t be convicted in any ways by the law”, said in the trials, by the highest judicial authorities, military and civil, in a secret environment, now known by all who take the effort of listening the audios of that session. The motivation on the decisions and the publicity of the trials are the peaceful weapons of the State of Law against arbitrations and abuses, besides providing the courts with the opportunity of bigger quality and efficiency in the duty of rectifying convictions considered unfair, despite rendered in accordance with the sincere belief that the law was applied to the case. In addition, the judges work, as an expression of the regulated republican activity by a scrupulous group of material and procedural judicial rules, is subjected to be known and evaluated not only by the direct recipients of the verdict. Each person, interested in the luck of an equal subjected to a criminal prosecution, disposes of means and resources to promote a true archeology of the reasons by which someone is convicted or acquitted. The publicity of the process and the decisions motivation work as shields against that type of justification cited above, common at that time at the Superior Military Court (SMC), typical of political trials. In cases in which the condition of the political process isn’t covered by the criminal way with which it presents itself, is by means of scrutiny of the magistrate’s reasons that the citizenship is felt protected or threatened. 3 If the motifs of an occasional conviction correspond to what the actual judicial body predicts and the penal law is being applied in accordance with the dominant understanding of the group of concepts and produced notions by the so called penal dogmatic in Brazil, it is justifiable to assume the conviction and, so, its right action will depend on the rectification of the magistrate’s judgment about the proof evaluation, which must have been produced in an environment of rigorous rules compliance of the due process of law. However, if the concepts and canonical notions of the Brazilian Penal law are put away and, besides, the warranties of this process are vulnerable, the judge appealing to proof evaluation criteria and other procedural practices at least highly questionable, the common converts itself into exception and the alert signs, in the defense of the State of Law, must be set immediately. In the hypothesis there is an expressive consensus that the foreign law apparently substitutes ours, operating itself the phenomenon which Elisabetta Grande calls symbolic circulation of judicial models arising from different scopes of judicial culture and different areas of Law itself.1 The handling of concepts and notions followed this conviction path, reverberating particular convictions and formed presumptions in penal matter with nonconformity concerning the fact analysis supported by proofs. However it is about a simple presentation of the book, it is important to clarify the reader of the meaning, in terms of danger to individuals’ liberties, of converting the exception into rule, as in my opinion it is clear that the conviction is of choice of the magistrate. About the subject Janaina Matida underlines: “The judicial presumption isn’t other but the reasoning about the facts done by the judge; it’s expected that existed in judicial systems in which the directive of free and rational valuation is in force, because it is the judge’s duty to value the proofs with enough information (or not) for the determination of the occurred facts under debate. Its quality is directly attached to the empirical generalization selected by him; so if the generalization is not universal, it, by definition carries the possibility of exception. Therefore, the reasoning construction must attend to demonstrate that the individual case is the rule and not the exception.”2 The condemning reasoning that holds itself on the exception rhetorically appeals to foreign judicial models and incorrectly translates penal concepts – as it jumps to the eyes in the ex- President’s conviction for corruption – making a dead letter of the impossibility of gender transplants warning3, it would provoke a vivid reaction among the Law scholars. The true team of jurists, female and male professors, lawyers and intellectuals who closely followed the process, mobilized themselves when realized the exceptionality in the style and arguments used by the criminal judge in the cited decision. 1 GRANDE, Elisabetta. Imitação e direito: hipóteses sobre a circulação dos modelos. Tradução de Luíz Fernando Sgarbossa. Porto Alegre: Sergio Antonio Fabris, 2009. 2 MATIDA, Janaina. Em defesa de um conceito jurídico de presunção. Tese doutoral. 2017. (Ainda não foi publicada). 3 Por todos: HENDLER, Edmundo S. Derecho. Derecho penal y procesal penal de los Estados Unidos. Buenos Aires: Ad-hoc, 2006. p. 45. 4 Thus, the entire process – and not only the verdict – was written out on the articles the reader has on one’s hands and that are of exclusive responsibility of each author. The hundreds of texts details the procedure, clarifies what rules are actually in force and how they coincide in the case. According to the articles’ authors’ opinions, these rules weren’t attended and its non attendance lead to a rendered unfair decision. It’s relevant to notice that on times of public trial and corresponding publicity of the motivation there is no more space to not applying the law to condemn. Something similar, whatsoever, subverts the logic and would hardly be acceptable especially in this period of political instability and judicial insecurity. Questioning each argument, from its inadequacy to its legal procedures and to the current interpretation configured the method which authors used to verify if and in what measure the due process of law was violated or respected. The probability of the ex-President’s condemnation and its confirmation are more than mere convictions of an extremely problematic process under any perspective. The reader has with oneself more than the work of one hundred and twenty one authors in the version of this book in Portuguese, “Comentários a uma Sentença Anunciada: O Processo Lula” and sixty-five authors in this English version, portrayed on one hundred and three articles which subdue all aspects of the long verdict to the judicious exam that the penal science, Constitutional Law and other knowledge areas consider fundamental to claim the State of Law in Brazil. “Comments on a notorious verdict: The trial of Lula” is a type of Letter of commitment to Citizenship, Democracy and the State of Law. Trusting that the courts will make justice to Luiz Inácio Lula da Silva is to believe that the statement of the 1970s trials, at the Superior Military Court (SMC) – “I’m going to take a revolutionary decision, leaving the law aside, because he can’t be convicted in any ways by the law” – is definitely buried between us. If there are no crimes, and there aren’t any, the absolution is the only possible decision. In the name of all the authors I thank all who brought this judicial document to life, to this Letter of Commitment to Citizenship, Democracy and the State of Law. Without the exceptional, courageous and determined Professors Carol Proner, Gisele Cittadino, Gisele Ricobom and the combative, tireless Professor João Ricardo Dornelles, what would be the individual resentment concerning the injustice of such a transcendent decision wouldn’t leave place to a document of which is expected to be of effective contribution for the re- establishment of the Empire of Law, with the absolution of the ex-President Lula. Thank you very much, Carol Proner, Gisele Cittadino, Gisele Ricobom e João Ricardo Dornelles. As Miguel Littín once said, clandestine while in Chile, to Garcia Marques: there are acts apparently courageous, but deep down they are a commitment to civic dignity.

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