As former President Luiz Inácio Lula da Silva’s attorneys, today (01/30) the defense filed for a writ of habeas corpus with the Superior Court of Justice (STJ) with the purpose of preventing an unconstitutional and illegal decision of the Regional Federal Court of the 4th Region (TRF-4) from happening, a decision which ordered the provisional execution of his sentence after deciding on the appeals filed with that appellate court (Appeal No. 5046512-94.2016.4.04.7000). Yesterday we requested the dismissal of another “habeas corpus” (HC 434.458/PR) on the same subject, filed with the Superior Court of Justice so that they assess the grounds Lula’s defense counsel presented.


The defense showed that the decision of said Appellate Court about early executing his sentence does not comply with:


(i) Article 5, LVII, of the Federal Constitution, according to which “no one shall be found guilty until there is a final and unappealable judgment of conviction”;


(ii) Article 283, of the Code of Criminal Procedure, according to which “no one shall be arrested if not in case of flagrante delicto or of a well-grounded writ issued by the judicial authority of competent jurisdiction, due to a final and unappealable judgment of conviction or, if during the investigation or the procedure, due to a temporary or preventive detention”;


(iii) Article 8.2.h of the American Convention on Human Rights, according to which “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proved according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: (…) h. the right to appeal the judgment to a higher court.”


(iv) Articles 14.2 and 14.5 of the International Covenant on Civil and Political Rights, according to which “14.2. Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.” (…) “14.5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”


Although the Federal Supreme Court decided – by a slight majority –, in Habeas Corpus 126.292 and a Writ of Mandamus in Direct Actions of Constitutionality 43 and 44, for the possibility of bringing forward the execution of the sentence before the final and unappealable judgment of conviction, this understanding does not have a binding nature and, as it has been widely publicized by the media, it will be a subject matter in that Court in a near future.


Bringing forward the execution of the sentenced ordered by the TRF4 as an automatic consequence of the conviction also goes against the legal flimsiness of the decision that Court rendered. Lula was convicted of bribe solicitation for allegedly performing “unidentified acts”, without them proving the existence of any money transactions meant for giving undue advantages to the former President (“follow the money”) and based on an alleged corruption pact exclusively grounded on the isolated testimony of a co-defendant who was negotiating a plea bargain agreement and, therefore, under the power of the Federal Attorney’s Office. This conviction was based on grounds that go against national and international standards concerning money-related crimes.


The defense’s legal arguments are in accordance with the precedents of the Higher Courts, because, among other things:


1)    There has been no proof of any specific behavior of his while in office linked to the practice or omission of official act, without which we cannot presume the crime of bribe solicitation has been committed;


2)    The Control Theory was used in order to overcome the lack of evidence of guilt and to disregard the evidence of his innocence;


3)    No property or amount was given, so it is impossible to presume that the crime of money laundering has been committed;


4)    Failing to carry out the expert evidence goes against Article 158 of the Code of Criminal Procedure, which in case of a prosecution involving money-related crimes, “following the money” is required;


5)    The minimum sentence was increased clearly in order to avoid the intended sentence from being barred by the statute of limitations.



The defense also requested the Superior Court of Justice to grant a preliminary injunction in order to immediately dismiss the provisional execution of the sentence order, so as to guarantee that Lula is presumed innocent, a guarantee provided for in the Federal Constitution at this stage of the criminal proceeding and, also, to stop some bodies of the Judicial Branch from inappropriately intervening in the upcoming political-electoral process.



Cristiano Zanin Martins and Valeska Teixeira Z. Martins

Former President Lula’s Defense Attorneys