Violation of several rights of former Brazilian President Lula da Silva following the criminal investigation of Operation Car Wash

Facts

The author is L.I. Lula da Silva, the former President of Brazil (2003-2010). In 2014, a criminal investigation known as “Operation Car Wash” (Operacão Lava Jato) uncovered corruption between the State owned national oil and a petrol company, five major construction companies, and various parties across the political spectrum for secret campaign funds. Among others, the author was subject to investigation in the context of two cases related to the Operation Car Wash, both under the jurisdiction of the same judge.

The author claimed that he had been formally identified as a suspect in a number of investigations and was undergoing a procedure that would in all likelihood lead to his indefinite pre-trial detention without any effective remedy. In addition to this, the court issued a bench warrant against the author in 2016 without ever having subpoenaed him before, which led to a demonstration that had enormous symbolic effect as it conveyed the message that the author was hiding from justice. The author claimed a violation of article 9 of the Covenant on the account of risk of indefinite pre-trial detention and compulsory transportation for questioning.

The author also claimed that the court used his public office position to advance arguments prejudging the author’s guilt, and that the judge discredited himself as an impartial judge in the proceedings against the author, contrary to the article 14(1) of the Covenant. The author alleged that the virulent media campaign fostered by the judge, the Federal Prosecution and the police, amounted to a breach of his right to presumption of innocence in violation of article 14(2) of the Covenant. The author further claimed a violation of his rights under article 17 of the Covenant, stating that the judge released to the media transcripts and audios of telephone intercepts between the author and President Rousseff and between the author’s lawyers.

Lastly, the author stated that the national law instituted an 8-year ineligibility period for political agents convicted by a collegiate body for committing specific crimes. He alleged that this law is incompatible with the Covenant, since its application amounted to a violation of his right to be presumed innocent. He claimed that the State party violated his rights under article 25(b) of the Covenant to run in the presidential elections and to vote.

Admissibility

The Committee considered that the claims under article 9 concerning the alleged risk of indefinite pre-trial detention have not been sufficiently substantiated. The Committee considered, however, that the author has sufficiently substantiated his remaining claims and declared the communication admissible as raising issues under articles 9 (1), 14 (1) and (2), 17, and 25 of the Covenant.

Merits

The Committee noted that the author was neither allowed to campaign nor to run as a candidate in the 2018 presidential elections in the terms requested by the Committee, therefore, the Committee stated that the State party failed in its obligations under article 1 of the Optional Protocol to comply with the requests for interim measures issued by the Committee.

The Committee further considered that the bench warrant was not issued in accordance with the procedure established by the State party’s domestic law and declared that it violated the author’s right to liberty under article 9 (1) of the Covenant. Regarding the disclosure of various intercepts of telephone conversations and telephone intercepts of the author’s lawyers, the Committee considered that they were unlawful and arbitrary, and declared them in violation of article 17 of the Covenant. The Committee noted that the facts that occurred before the author’s first conviction in 2017 showed that the objective element of the requirement of judicial impartiality was not met, and it therefore declared a violation of the author’s right to an impartial tribunal as provided in Article 14 (1). The Committee further noted that the national court has ruled that the judge’s actions created a presumption of guilt and a general expectation that he would and should be found guilty, it considered that these actions amounted to a violation of the author’s right to be presumed innocent, as protected under Article 14 (2) of the Covenant.

Finally, regarding article 25(b) of the Covenant and the right to vote and right to be elected, the Committee has already concluded that the criminal proceedings against the author violated due process guarantees provided for in article 14 of the Covenant. Therefore, the Committee found that the consequent ban on the author’s right to run for elections and the restriction on his right to vote constituted a violation of article 25 (b). Thus, the Committee decided not to analyse separately the compatibility of the national law with article 25 (b) of the Covenant, as well as their individual application to the author’s case.

Recommendations

The State party is obligated:

• (a) to ensure that the criminal proceedings against the author comply with all the due process guarantees set out in article 14 of the Covenant;
• (b) take all steps necessary to prevent similar violations from occurring in the future.

Implementation

Deadline: 17 October 2022

More info on the case:

OHCHR - Brazil: Criminal proceedings against former President Lula da Silva violated due process guarantees, UN Human Rights Committee finds

EJIL Talk! - The subtle erosion of democracy in Latin America: the case of Lula in the Human Rights Committee

UN News - Lula trial in Brazil violated due process, says UN rights panel

Swiss Info - UN committee: Lula should have political rights

Reuters - U.N. committee finds Brazil graft probe violated Lula's rights

By: Irene Aparicio and Anna Gorodetskaya