The subtle erosion of democracy in Latin America: the case of Lula in the Human Rights Committee

On 12 March 2022, the Human Rights Committee delivered its views on the complaint filed by Luiz Inácio Lula da Silva, former President of the Federal Republic of Brazil who was imprisoned in 2018 in the context of the anti-corruption operation known as ‘Operation Car Wash (in Portuguese, ‘Operação Lava Jato’). The representatives of Lula asked the Committee to find that Brazil had violated his rights against arbitrary deprivation of liberty, the right to a fair trial, the right to presumption of innocence, the right to privacy, and his political rights (Articles 9(1), 14(1) and (2), 17, and 25 of the International Covenant on Civil and Political Rights).

The Committee’s majority (15 against 2) found that the acts of the Brazilian State in the course of Operation Car Wash indeed violated the aforementioned articles of the Covenant (hereinafter ICCPR). It concluded that former President Lula had not been tried by an impartial tribunal, that his 580 days of arrest amounted to a wrongful imprisonment, and that Brazil had violated the Covenant by hindering the victim’s right to run for the 2018 elections.

The decision of the Committee has been published in the year of the upcoming presidential elections in Brazil, and Lula appears at the forefront of the dispute in the election polls. The views of the Committee, widely publicized in the Brazilian media, might have an impact in consolidating the candidate’s legitimacy in the Brazilian politics.

This entry briefly discusses the context of the dispute taken to the Committee (hereinafter HRC) and presents the Committee’s findings, as well as the dissidence therein. Lastly, it analyses whether international bodies have granted a certain room for manoeuvre to state organs in questions related to challenges to democracy in Latin America in the 21^st Century.

Context

Operation Car Wash started in March 2014 under the federal jurisdiction of the state of Paraná, in Brazil. The Judge responsible for the case in the Federal Tribunal of Paraná was Sérgio Moro. The Operation led to the formation of an investigation task force of Prosecutors of the Republic in the State of Paraná, which was led by the Prosecutor Deltan Dallagnol.

Operation Car Wash unveiled a corruption scheme involving a former manager of the Brazilian oil company Petrobrás, members of political parties, and well-known entrepreneurs. The biggest name investigated and prosecuted under the Operation was Luiz Inácio Lula da Silva. Lula was investigated for two cases: the first related to the help he allegedly received from construction companies when buying a holiday apartment (the ‘Triplex case’); the second referred to the alleged furnishing of a property (the ‘Atibaia case’).

In 2016, Judge Moro issued a bench warrant to coercively take former President Lula to questioning at 6 am on the 4^th of March of 2016. The bench warrant was leaked to the media, and the arrest of Lula for the purposes of questioning was widely accompanied by media outlets.

In the same month, Judge Moro authorized the tapping of the telephones of Lula, his family, and one of his lawyers. The Judge ordered the end of the telephone tapping on 11:12 am of the 16^th of March of 2016. However, the tap continued and recorded a conversation on that same day at 1:32 pm between the then President Dilma Rousseff and Lula concerning the intentions of the former of nominating the latter as Chief Minister of her government. On the following day, Judge Moro authorized the disclosure of that call, which was presented as an attempt of the government to avoid the arrest of Lula during the Operation Car Wash.

In July 2017, Judge Moro convicted Lula for the crimes of corruption and money laundering, and he sentenced the former President to 9 years of imprisonment. The sentence was increased by the appeal court (the Federal Regional Court) to 12 years and one month. Lula filed a writ of habeas corpus before the Federal Supreme Court arguing that under the Brazilian Constitution a person can only be taken to custody to serve a sentence after the conviction has become final. He claimed that, since he had been convicted by a court of second instance, and it was still possible to appeal before the higher courts, he could not be taken to prison. By 6 votes against 5, the Supreme Court did not agree with the petitioner, and within a few hours Judge Moro had issued an arrest warrant against Lula.

On 7 April 2018, Lula was taken to the Prison of Pinhais, in Curitiba, Paraná. He was not allowed to be interviewed by any media outlet until April 2019. In addition, in accordance with the Brazilian legislation, he lost his political rights, including the right to be elected. At the time of the facts, Lula was leading the polls of the 2018 presidential elections.

On 17 August 2018, the HRC granted Lula’s request for interim measures, and requested that Brazil ensure the right of the claimant to participate as a candidate in the presidential elections until his conviction had become final. Brazil did not comply with the interim measures, and the Worker’s Party (‘PT’, in Portuguese) eventually replaced Lula’s candidacy with that of Fernando Haddad. The latter disputed the second round of the 2018 presidential election against Jair Bolsonaro, who was ultimately elected.

Moro enjoyed great popularity in Brazil and abroad, and Operation Car Wash had in general strong popular support. In 2016, Moro was even listed as one of the 100 most influential people in the world by Times Magazine. Following the election of Jair Bolsonaro as President of the Republic, Sergio Moro renounced as a judge and became Bolsonaro’s Minister of Justice.

Yet in June 2019, the journalist Glenn Greenwald of The Intercept released leaked conversations from Telegram between the Judge and the lead prosecutor of the Operation Car Wash, Deltan Dellagnol, among other members of the prosecution team. The leaked conversations (which became known as Car Leaks) showed that the judge had provided strategic advice to the Prosecutors.

The legitimacy of Operation Car Wash suffered a significant blow. On 7 November of 2019, the Brazilian Supreme Court decided by a majority of 6 judges against 5, that only after res judicata could an individual be taken to custody to serve a prison sentence. On 8 November 2019, after 580 days of imprisonment, Lula was released from prison. In March 2021, by 3 votes against 2 the Supreme Court found that Judge Moro had lacked impartiality in the prosecution against the former President, a decision that was confirmed by the full bench in June 2021 with a majority of 7 against 4 judges. If, before Car Leaks, Judge Moro had been one of Times’ 100 most influential persons, in 2022 former President Lula was on the cover of the same magazine, which referred to him as ‘Brazil’s most popular leader’.

Findings of the Committee

The HRC took note that the Supreme Federal Court of Brazil had found that the issuance of the bench warrant by Judge Moro for the purposes of questioning Lula had been premature, because Lula had not been previously summoned to appear in court voluntarily, as required by the Brazilian legislation. Hence, the HRC concluded that the bench warrant was in dissonance with the procedure established under the domestic legislation and thus violated the claimant’s right to liberty (Article 9(1) of the ICCPR). The Committee did not pronounce itself on whether taking a person to custody to serve a prison sentence before res judicata would violate the  ICCPR.

The HRC also noted that the Brazilian Supreme Federal Court had deemed the interception of the conversation between Lula and former President Dilma Rousseff to be illegal. It took note of the Supreme Court’s findings that the disclosure of the taped conversations – including the conversations of the victim with his family and his lawyer – had been illegal, and that said disclosures had been ‘manipulatively selective’ and performed ‘in order to monitor and anticipate defence strategies’. Accordingly, these actions violated Article 17 of the Covenant.

The HRC recalled that impartiality has a subjective and an objective element. The first refers to the requirement that judges may not be influenced by personal bias, prejudice or preconceptions, or act in a way that favours the interests of one of the parties. The objective element, for its turn, refers to the need that tribunals appear to be impartial in the eyes of a ‘reasonable observer’. The HRC took note of the Supreme Court’s conclusion that Judge Moro was subjectively partial. In addition, the Committee concluded that, to a reasonable observer, the facts of the case – including those preceding the first conviction of Lula by Judge Moro in 2017 – led to the conclusion that the objective dimension of impartiality was not present, in violation of Article 14(1) of the Covenant. The Committee did not refer to Car Leaks, but one should recall that the information provided by the parties were prior to the leaks.

With regards to the presumption of innocence, the Committee recalled that ‘there is hardly a matter of more pressing public interest than a former President, accused of acts of corruption which allegedly occurred during his presidential tenure, and who remained highly involved in public life’ (para 8.13). Yet it also noted that Brazilian Supreme Court had found that the actions of Judge Moro had created a presumption of guilt and a general expectation that Lula would be found guilty. Accordingly, the State violated Article 14(2) of the Covenant. Additionally, while prosecutors may take a public stance towards the culpability of a defendant, they must abstain from undeniably affirming his or her guilt in public, and they must take precautions not to create an expectation of guilt. As Brazil failed to indicate how the ‘public statements by high-ranking law enforcement officials did not amount to public affirmations of the author’s guilt’, the Committee concluded that the State violated Article 14(2) of the Covenant (para 8.14). The Committee did not, however, refer in an explicit manner to the statements of Judge Moro specifically.

Lastly, the Committee observed that ‘a State party may have a legitimate interest in restricting the access of persons convicted of crimes of corruption to public office’ (para 8.15). However, considering that the due process guarantees of the former President had been violated in the criminal proceedings, the consequent ban on Lula’s candidacy in the 2018 elections and the restriction on his right to vote violated Article 25(b) of the Covenant.

The Committee determined that Brazil was under the obligation to provide the former President with an effective remedy, to ensure that criminal proceedings against the petitioner comply with the due process guarantees safeguarded under Article 14 of the ICPR, and to take all necessary steps to prevent similar violations in the future.

The Committee member Duncan Laki Muhumuza wrote a concurring opinion stressing the bias of Judge Moro and indicating that the Judge’s acceptance of a ministerial position following the 2018 presidential elections was an indication of such bias. He stressed that states ‘cannot engage judicial institutions and other coercive agencies to deny an individual his/her rights’ (para 7). The Committee members José Santos Pais and Kobauyah Tchamdja Kaptcha wrote a joint dissenting opinion noting that, at the time of the facts, the decisions of Judge Moro had been supported by subsequent judicial decisions of other tribunals and had showed reasonableness in light of the applicable law and case law at the time of the facts. They also stressed that Moro had resigned from office as the Minister of Justice of the Bolsonaro government in April 2020, but they failed to explain how this relates to their finding that the decisions of the judge had not been tainted by partiality. The dissenting opinion criticized the Supreme Federal Court for overstepping the scope of the writs of habeas corpus when the Court declared Moro as a biased judge instead of merely deciding the question of the illegal detention.

Deference to domestic institutions and the right to democracy in Latin America

The HRC made reference to the Brazilian Supreme Court when analysing each and every article of the Covenant claimed by the petitioner to have been violated. In fact, the decisions of the Supreme Court appear to have played a pivotal role in the Committee’s conclusions, in some cases even constituting the only argument made explicit by the treaty body. While the Committee’s conclusions are sound, it could have developed further its analysis of international human rights law in light of the facts of the case, thus avoiding an overdependence on the domestic judicial organs.

While reliance on domestic courts is only logical when the dispute revolves around the question of whether a certain measure has complied with the domestic legislation – for example, the claim of the victim concerning the legality of the bench warrant -, this is not equally justified in the remaining cases. Such a reasoning may reveal a considerable deference to domestic institutions, which can be questioned in the context of democratic crisis in the region. Before Car Leaks, the Brazilian Judiciary had generally supported the decisions of the former Judge Moro, as noted José Santos Pais and Kobauyah Tchamdja Kaptcha in their dissenting opinion. Even after Car Leaks, the decisions of the Supreme Court referred by the HRC were not unanimous, and in some cases the majority was formed by 3 judges against 2. One might wonder: had one Justice from the Supreme Court voted differently, would the HRC’s majority have similarly aligned with the views of José Santos Pais and Kobauyah Tchamdja Kaptcha, which are even more deferential to the domestic authorities?

The HRC appears not to be alone in grating states a certain room for manouvre in the realization of the right to democracy. The Inter-American Court of Human Rights has been very active in its jurisprudence on quick and explicit dismantlement of democracy – such as the coups d’états that took place in the region in the 1960-1980 decades. Yet the Court has been more deferential in the context of more subtle and contemporary challenges to democracy in the region (see the Court’s decision not to grant an advisory opinion on judicial guarantees applicable in the context of impeachment of constitutional and democratically elected presidents, of May 2018). On the other hand, the Inter-American Court’s recent Advisory Opinion OC-28/21 on presidential re-election without term limits in the context of the Inter-American Human Rights System appears to indicate a gradual move away from a deferential position in the topic of slow erosions of the democratic order in the Americas. The HRC’s decision on the case of Lula can be perceived as reflecting this gradual transition as well: the views of domestic organs are still granted a significant weight in the Committee’s decision, but the margin of discretion is considerably smaller in the majority’s opinion when compared to the views of the joint dissenting opinion.

In ‘How Democracies Die’, Levitsky and Ziblatt question our general belief that democracies die ‘at the hands of men with guns’ (2018, at 3). They argue that democracies are dying differently now: they ‘erode slowly, in barely visible steps’ (ibid). It appears international institutions are uncovering paths to tackle this new challenge, as legal approaches to address the quick and explicit dismantlement of democracy are not always sufficient to address subtle erosions of the democratic order. To quote Levitsky and Ziblatt: ‘History doesn’t repeat itself. But it rhymes’. International organizations are to find these rhymes and recognize the subtle but unmistakable signs of contemporary erosions of democracy if the right to democracy is to be effectively protected.