Dino: If the math hasn't changed, Lula should be released tomorrow.

Current Brazil Network - "Criminal law is not the law of punishment, but the law of freedom." Thus said the governor of Maranhão, Flávio Dino, who was a judge for 12 years and is a specialist in Constitutional Law. In his participation in the Seminar on Criminal Measures, this Thursday (25), in Brasília, Dino stated that it would be the duty of the Superior Court of Justice (STJ) to carry out a "revaluation of the facts and evidence" and argued that former president Luiz Inácio Lula da Silva should be released immediately.

"For practical reasons, Lula must be legally released tomorrow, in my opinion. Not in September. President Lula has already served 13 months. If it's 8 years and 10 months, and if they haven't changed the math in that exceptional court in Paraná – because even that is in danger – 8 years and 10 months, minus the 13 months, the sentence is less than 8," explained the governor. In reality, Lula completes 12 months and 20 days of his sentence this Friday.

According to Dino, with the remaining sentence below eight years, "according to precedents of the STJ itself," Lula becomes subjectively entitled to the semi-open regime, not through progression of regime.

At the event analyzing legislative changes proposed by the so-called "anti-crime package" presented by the Minister of Justice, Sergio Moro, the governor stated that the first contradiction to be faced in Lula's case is the conflict with Criminal Law.

When discussing penal measures, one immediately thinks of imprisonment, punishment, and retribution, observes the governor. "In that case, torture would be permitted, illegally obtained evidence would be used for greater efficiency, any means would be allowed to achieve the ends. The objective of the penal process is to protect liberty, to guarantee maximum preventive effectiveness with the minimum sacrifice to freedom." According to the jurist, this is age-old and reflects the limitation of the State's power over individual liberty.

The 1988 Constitution, Dino recalls, went in that direction, as a "direct offspring of the democratic struggle against the dictatorship." It made some very relevant theoretical transitions and placed individual guarantees in Article 5, with 78 clauses. Precisely to say: here is the sacred sphere of the legal patrimony of the subjective rights of each citizen, over which the State cannot interfere. There is the presumption of innocence, which states that no one will be considered guilty until the final judgment of a criminal conviction.

This rule has been practiced in Brazil since 1988, with the only exceptions being those stipulated in the Constitution itself, such as flagrant offenses. Sentences are only executed after all possible appeals have been exhausted, a principle that was not respected in the imprisonment of former president Luiz Inácio Lula da Silva.

Haddad
Former São Paulo mayor Fernando Haddad also argued that legal measures should be taken today to guarantee the immediate release of former president Lula, which would provide "relief" to a significant portion of Brazilian society that is not resigned to the abuses committed in this process. He says he has always considered Moro a "political figure," since from the beginning he was imbued with a political project: the incrimination of the former president.

"At no point did I see any desire to seek justice or pursue the truth. No desire to know exactly what happened and what the president's supposed responsibility would be regarding any act of government. What needed to be proven was that the actions of former President Lula were contrary to the public interest and, as a result, he allegedly received material benefits."

He says that neither the alleged acts committed by Lula nor the receipt of benefits were proven in the process, recalling that Moro used the term "indeterminate acts," a "euphemism," according to Haddad, to establish the unproven guilt of the former president.

For Haddad, this type of legal abuse committed against Lula, also present in the measures proposed in his "anti-crime package," is part of a broader general context related to the 2008 capitalist crisis, which necessitates increased repression and punitive capacity of the State to combat the "chaos" created since then. Another political result of the crisis is the weakening of democratic center forces and the strengthening of the far-right worldwide.

Presumption of guilt
Lawyer Carol Proner, a member of the Brazilian Association of Jurists for Democracy, also highlighted the role of "democratic exceptionalism" around the world and the reinforcement of "punitivism." According to her, Moro's package, if approved, ends the principle of presumption of innocence and fosters crime, since one of the direct consequences will be an increase in the prison population, where organized crime recruits its members.

"From the point of view of the presumption of innocence, it is an attack on the very condition of innocence, expanding the punitive power of the State, considering anyone who interacts with State forces a criminal or guilty a priori," she stated. She adds that "Any criminal law system that respects human rights is based on the principle of the presumption of innocence. Reversing this principle represents a paradigmatic break in the law."

The enforcement of prison sentences after conviction by a collegiate body, and the reduction of sentences or even acquittal of police officers who commit homicide, whether on duty or off duty, resulting from "excusable (that is: understandable, pardonable) fear, surprise, or violent emotion," were points in Moro's bill cited by the jurist that corroborate the reversal of the principle of presumption of innocence. "It's an obsession of the Bolsonaro government. They believe that members of the security forces cannot sit in the dock and that a good criminal is a dead criminal, and they flirt with a neo-fascist policy."