Brazil’s Supreme Court rules that Sérgio Moro was partial when convicting Lula

Minister Cármen Lúcia changed her vote from 2018 and flipped the ruling against the former judge Sérgio Moro

March 24, 2021 by Brasil de Fato
Former Brazilian President Lula da Silva and former judge Sergio Moro. Photo: Ricardo Stuckert e Nelson Almeida/AFP

The 2nd Panel of the Federal Supreme Court (STF) confirmed on Tuesday March 23, with a result of 3 votes to 2, the existence misconduct by former judge Sergio Moro in the cases involving former president Luíz Inácio Lula da Silva of the Workers’ Party (PT) in the Operation Car Wash case. This is the latest chapter in the legal battle of Lula, following a decision on March 8 which annulled the convictions against the ex-president and opened the doors for him to be a presidential candidate in 2022.

The latest ruling was thanks to a change in vote of the minister Carmen Lucía, who had voted, in 2018, when the process began, against the petition of habeas corpus presented by Lula’s defense. This Tuesday, however, she conceded the habeas corpus by recognizing the partiality of Sérgio Moro.

According to the minister, the evidence that has emerged since 2018 “may indicate the infringement on the impartiality of the judge.” “What is being discussed here is something very basic: everyone has the right to a fair trial, that includes due process and also the impartiality of the judge,” the minister highlighted.

“New information was presented to clarify doubts about evidence of the partiality of the judge overseeing the case,” said Cármen Lúcia.

The minister presented the following facts that prove the partiality of Moro: the irregularities in the summoning process; the illegal wiretapping of Lula’s phone calls, and those of his family and attorneys; the leaking of the sealed testimony of minister Antonio Palocci to the media.

“There was a series of violations of rights which makes it impossible to defend someone. Anyone who has been a lawyer knows that the interview with the lawyer is essential so that the right to defense is broad,” said Cármen Lúcia.

The 2nd Panel of the Federal Supreme Court (STF) began the trial in 2018, and only resumed it on March 9th, to analyze Moro’s suspicious conduct in relation to the case involving Lula and a triplex apartment in the coastal city of Guarujá – which would also apply to all other proceedings against the former president taken up by the 13th Federal Court of Curitiba, under the scope of the Lava Jato operation.

Read more: With Lula’s conviction overturned, it is time to recover democracy in Brazil

Until March 9, votes on the matter were tied 2 to 2. Justices Gilmar Mendes and Ricardo Lewandowski voted to confirm the existence misconduct, while judges Cármen Lúcia and Edson Fachin took a stand against the request made by Lula’s defense team.

The trial came to a halt because Supreme Court justice Kassio Nunes Marques, appointed by Bolsonaro, asked for more time to review. This Tuesday morning, Nunes Marques brought the case back to the Supreme Court. Shortly after, the Minister Gilmar Mendes called for the trial to continue in the afternoon.

Beginning of the trial today

In the opening portion of the trial which began at around 14h20, minister Kassio Nunes Marques presented a long legal interpretation of the work published by legal experts and the Code of Criminal Procedure to justify that Moro was not partial in the Lava-Jato processes.

He then questioned the legality of the evidence acquired by Operation Spoofing and leaked by hackers, which are messages exchanged by the former judge Sérgio Moro and the prosecutor Deltan Dallagnol. “This is not acceptable evidence, as they are the product of crime.” Nunes Marques reiterated several times that these messages are “evidence without value” and that accepting them “would in a way be to legalize the practice of hackers in Brazil.”

The dialogues that emerged in Operation Spoofing revealed irregularities in the relationship between Moro and the prosecutors of the Car Wash task force. The messages also revealed the partiality of the prosecutors and their desire to arrest Lula and invalidate his presidential candidacy in 2018.

Nunes Marques, whose vote became decisive after the tie 14 days ago, ruled in favor of Moro and did not confirm suspicious conduct.

During the trial today, Gilmar Mendes and Ricardo Lewandowski reiterated the votes in favor of the request of Lula’s defense and the confirmation of Moro’s suspicious conduct. With this, the change in vote of minister Cármen Lúcia was decisive to declare the trial and detention of former president Luiz Inácio Lula da Silva in Operation Car Wash directed by Sérgio Moro as partial.

The first decision

The decision taken by judge Edson Fachin, minister of the Federal Supreme Court (STF) and shared on March 8 took Brazil and the world by surprise. In accordance with the opinion of the magistrate, all of the convictions of former president Luiz Inácio Lula da Silva in the Operation Car Wash case were annulled. This means that the member of the Workers’ Party was given back his political rights and he can run in any electoral race, including the 2022 presidential elections.

Read more: Brazil | Lula after the annulment of convictions: “Never give up”

In his decision, Fachin said that the 13th Federal Court of Curitiba, in the southern state of Paraná, which was responsible for the convictions of the former president, had no jurisdiction to judge the processes related to the triplex apartment in Guarujá on the coast of São Paulo; a ranch in Atibaia, in São Paulo state; an investigation about the Lula Institute, founded by the former president; and another case about supposed illegal donations made by the Odebrecht construction company.

According to the minister, these processes do not have a direct relationship with Petrobras, the initial objective of the Operation Car Wash. With Fachin’s decision, these cases will be dealt with by the federal justice of Brasilia, which will have to review each of those cases.

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