Could Lula be a victim of "enemy criminal law?"

In the case of the Guarujá triplex, Lula was convicted without evidence. This is a fact that any serious procedural or criminal lawyer will uphold, provided there is honesty in the analysis.

Judge Sérgio Moro convicted Lula based on plea bargain testimonies and the so-called 'set of circumstances,' and undeniably, there is no document proving that the apartment belongs to the former president. On the contrary: those that exist prove and attest that it does not belong to Lula.

If that's the case, why was Lula convicted?

He was convicted because the 13th Federal Court of Curitiba decided to treat him as an enemy of the State and condemn him; any hidden reasons for the unjust conviction will be revealed by Time, the close cousin of Truth and Justice.

Perhaps we can understand this conviction in light of what is known as Enemy Criminal Law.

The idea was introduced by Gunther Jakobs, and according to it, certain people, because they are enemies of society or the State, do not have all the criminal and criminal procedural protections that are given to other individuals.

The jurist Gunther Jakobs proposes a distinction between a criminal law for citizens, characterized by maintaining the validity of the norm, and a criminal law for enemies, oriented towards combating dangers and which allows any available means to be used to punish these enemies.

It proposes antinomic systems but fails to answer the fundamental question: WHO DETERMINES WHO THE ENEMY IS?

In practice, enemy criminal law means the suspension of certain laws justified by the need to protect society or the State, which is ideologically defined by the magistrate, because according to the theory, any person who does not respect the laws and legal order of a State, or who even intends to destroy them, must lose all rights as a citizen and as a human being, and the State must allow that person to be persecuted (Lawfare?) by all available means.

The punitive zeal of our times has transformed the Judiciary. The Judiciary is politicized, and yet it, which should be the guardian of the law and the constitution, the guarantor of fundamental rights and guarantees, lends itself to instrumentalizing the Enemy Criminal Law and declares that we live in a State of Exception.

All so that the 2016 coup d'état can be completed without the obstacles that the law and the constitution could create.

What am I referring to? To the fact that the Federal Regional Court of the 4th Region, the same one that will judge Lula's appeal, has granted the 13th Federal Court of Curitiba a veritable "carte blanche" to disregard the law and the constitution, all based on the "State of Exception Theory" and, perhaps, from the perspective of Enemy Criminal Law.

Well, the TRF 4 (Regional Federal Court of the 4th Region) based its aforementioned reckless decision on the "Theory of the State of Exception," which is, with all due respect, a crime against the nation (and the Supreme Federal Court, the press, and democratic parties remain silent).

All of this is nonsense. The Theory of the State of Exception, the Enemy Criminal Law, the suppression of rights sponsored by some organs of the Judiciary are schizophrenic manifestations of the stupidity of these dark and embarrassing times.
But going back to the Enemy Criminal Law, we must note that most scholars of criminal law and philosophy of law oppose this concept.

And the weakness, from a philosophical perspective, lies in the fact that, despite Günther Jakobs' attempt to demonstrate that his idea was based on Kant's work, the German professor departs from the philosopher's thought, because for Kant, one can only proceed in a hostile manner against someone "when he has already harmed me," while Jakobs defends the position that punishability should be "widely anticipated to the stage of preparation."

Furthermore, even if Jakobs had remained entirely faithful to Kantian thought, which is not the case in his thesis, it would still be absolutely impossible to transpose Kant's ideas to the present day, especially in light of the new conception of human rights.

Finally, regarding the fragility from a legal standpoint, it is worth remembering that Article 11, § 1 of the Universal Declaration of Human Rights stipulates that "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

And Article 30 of the same document refutes the proponents of this idea by establishing that "Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein."

And in Brazil, our legal system, article 5, LV, of the CR/88 states that "litigants in judicial or administrative proceedings, and defendants in general, are guaranteed the right to adversarial proceedings and full defense, with the means and resources inherent to it."

Contrary to what Moro and the Federal Public Prosecutor's Office of Curitiba imagine, "broad defense" refers to the principle by which everyone is guaranteed the right to present, as long as they are lawful, any reasons in defense of their rights. This allows the judge to form their conviction based on the arguments and evidence presented, and they must base their decision on what is demonstrated by the parties. For this very reason, Jakobs' idea of ​​suppressing procedural guarantees in cases of crimes committed by enemies can never prevail, as we believe such a position would be one of the greatest setbacks in human history regarding fundamental human rights.

The truth is that these events, which deserve analysis from people more qualified than myself, are the genesis of the current state of uncertainty and insecurity, and, beyond the personal dramas, our country is facing its worst crisis since the promulgation of the 1988 Constitution.

Pedro Benedito Maciel Neto, 53, lawyer, partner at MACIEL NETO ADVOCACIA, author of “Reflections on the Study of Law”, Komedi Publishing, 2007.