Protocol communication – 2

“That the legal remedies rule does not require resort to appeals that objectively have
no prospect of success, is a well established principle of international law and of the Committee’s jurisprudence.”12
The HRC has noted that the lawyer/client relationship is protected by a privilege which “belongs to the tenets of most legal systems… intended to protect the client.”13
44. There were many conversations between Lula (LILS on the transcripts) and his
attorney Roberto Teixeira, and a number of them were disclosed to the media. One
example is exhibited: the client asks his lawyer for advice about the Sao Paulo
Attorney’s office filing an information against him, and the lawyer gives it in robust
terms. The intercepted conversation has no reference to ‘Car Wash’, but Moro’s order
required it to be intercepted and he ordered its disclosure, both as a transcript and in
audio form. (Exhibit G). In his judgement on the Suspicion Motion, Moro seeks to
excuse the tapping of the law firm on the basis that the conversations were transcribed
because they were not relevant. This fact does not excuse him putting the interception
in place. Moro repeats his accusations against Lula’s lawyer, which have been
answered fully by Roberto Teixeira (Exhibit H).
Complaint 4: Article 14(1) – The Right to an Impartial Tribunal
45. The right to an unbiased judge is central to the fair trial rights enumerated in Article
14 of the ICCPR. It is an entitlement of the individual “in the determination of any
criminal charge against him” as well as in the determination “of his rights and
obligations in a suit at law.” It has already been observed that criminal procedure in
Brazil does not effectively differentiate between the stages of investigation and trial:
once a judge assumes jurisdiction over a case, and opens an investigation file in
respect of an alleged suspect in relation to a particular crime, that judge is responsible
for authorising prosecution requests for extraordinary measures (such as search and
seizure warrants, bench warrants, telephone tapping and the like); for approving
criminal charges and then for trying the case without a jury (except in intentional
crimes against life) and without other judges or assessors. This procedure is not in
itself a breach of Article 14, but as the European Court of Human Rights held in the

12 210/86, 225/87, paragraph 12.3 13 Van Alphen v Netherlands, 305/88, paragraph 5.7
23

leading case of Hauschildt v Denmark,14 pre-trial decisions made by a judge in this
position may indicate a bias against the defendant or give rise to a reasonable
apprehension of bias, and thus require the judge to recuse himself before the stage is
reached where he determines guilt or innocence.
46. In his decision on the suspicion motion, Judge Moro relies on the normal procedure
which permits a judge who gives decision at the investigative stage to sit as the trial
judge. But this cannot, of course, be permitted if those earlier decisions have given the
impression or the perception that he lacks impartiality in respect of the defendant. His
self-assessment of his impartiality cannot be allowed to prevail: the test is objective,
not subjective, and it turns on a perception of bias and not actual bias. To this extent,
it is relevant that the public perception is that Moro will arrest and convict Lula. He
may, if his evidence permits, arrest Lula, but he is manifestly disqualified from trying
and convicting him.
47. Lack of impartiality may be detected in many ways. The rule derives from the
principle that justice must be seen to be done, i.e. that reasonable lay observers should
not perceive that the judge would have a preconceived opinion about the guilt of the
defendant. In the Hauschildt case itself that was because the judge had, at an initial
stage, denied bail to the defendant on the grounds that there was strong evidence of
his guilt. In this case, the indicia of partiality on the part of Judge Moro towards Lula
are much stronger and more numerous. Several have been highlighted by the earlier
complaints, viz
(1)  Deliberately issuing  an unlawful bench warrant to detain him publicly and
unnecessarily,
(2)  Tapping his telephones and those of his family, and unlawfully and maliciously
releasing transcripts to the media, and in particular by releasing unlawfully
intercepted calls with the President.
(3)  Intercepting and releasing to the media confidential calls with his lawyer, and
making allegations of criminal conduct against his lawyer.
It is quite clear to reasonable observers from these actions alone that Judge Moro has
formed an animus against Lula and has a view about his guilt, and is striving – to the
point of acting illegally – to obtain the evidence to justify it. There are many more

14 Hauschildt v Denmark, no.10486/83, ECHR (1989)
24

actions by Judge Moro, over the past year, which have served to enhance this
perception.
48. In his judgement on the Suspicion Motion, Judge Moro brushes aside Judge
Zavascki’s findings against him as merely “part of the judicial system of mistakes and
successes.” But his identified mistake – in releasing for public delectation the
intercepted calls, including calls the interception of which was illegal, were so
serious, especially in their foreseeable consequences for Lula, that they obviously
called his impartiality into questions. Some indication of that damage can be
appreciated from examples of the publicity (Exhibit I).
49. For the purposes of this complaint, we refer to Moro’s repeated acceptance of
invitations to attend and speak at events run by groups politically hostile to Lula
which are calling publicly for his arrest and conviction. Thus he participates in events
run by or on behalf members of the Brazilian Social Democratic Party (a main
opponent of Lula and The Workers Party), events organised by the publisher of
Editora Abril, a paper that has repeatedly called Lula corrupt and demanded his arrest
and conviction, and notably an event sponsored by Veja magazine, so hostile to Lula
that it has published a doctored front cover picture of him in a convicted prisoner’s
uniform. By repeatedly placing himself with Lula’s enemies, Moro publicly signals
where his sympathies lie – i.e. against Lula and The Workers Party. In his judgement
on the suspicion motion, Judge Moro denies having participated in ‘political events’
but whether such events are ‘political’ is not the point – the fact is that these events
are promoted by Lula’s enemies, including an event organized by LIDE, a private
organization owned by João Doria Junior, who declared himself candidate (contrary
to Judge Moro’s claim) in the city of São Paulo against the Workers’ Party prior to the
event he attended.
50. An outrageous example of bias was Judge Moro’s attendance, as quest of honour, at a
party to launch a book about his Car-Wash investigation, which portrays him in a
hagiographic light and defames Lula by claiming that he is guilty of corruption. Judge
Moro – the judge at any trial – posed for pictures, subsequently published (See below,
& Exhibit J) with the author – a Globo journalist, and the author’s mother who is
well-known for condemning Lula. Press reports indicate that he was treated as a
celebrity and he actually signed copies of the book which condemned Lula. By these
actions he publicly endorsed a book which argued the guilty responsibility of a man
25

that he has the power to arrest and in that case intends to try. As a result of these
actions, there cannot possibly be other than a reasonable apprehension of bias. He
should not, while he is judging Lula, associate with people who urge his prosecution,
especially if they are honouring him or complimenting him on an investigation in
which he has made Lula a suspect. Judge Moro has on several occasions travelled to
America to give lectures on his work and to bask in favourable comments about it
from American publications such as Time and Fortune. It is wrong for him to seek
publicity for himself in relation to his work investigating and hearing corruption cases
whilst at the same time insisting upon sitting as a trial judge. It is emphatically wrong
for him to do so while claiming the right to arrest Lula and to try him.

51. It is impossible to divorce the perception of Moro’s actions against Lula from his
much-publicised theory of the crusading pro-active “attack judge” which he advances
in his public lectures (See Exhibit K). In a nutshell, he identifies corruption in Brazil
with corruption in Italian politics in the early 1990’s, and calls for a mani pulite
operation to attack it. Central to his thesis – which he sees himself implementing – is
that the effective prosecution of political corruption requires the breach of certain
fundamental human rights, namely by locking suspects up in pre-trial detention until
they confess; offering “plea bargains” in terms of light sentences if they do confess;
manipulating public opinion through leaks of evidence to the biased media so that
Image: Moro (Center) launching the ‘Lava Jato’ book which condemns Lula. (Image taken from Gazeta do Povo Article of 21st June 2016 (See Exhibit J)
26

angry demonstrations dissuade politicians from passing laws to curb prosecutorial
abuses. His lectures associate Lula with Italian Prime Minister Bettino Craxi (a target
of Mani Pulite), and he endorses public demonstrations against suspected political
leaders (citing with approval how a mob “gathered in front of Mr Craxi’s house,
throwing stones and coins at him when he left for a television interview.”)(Exhibit L).
He says that it is naive to believe that prosecutions against public figures can be
conducted “normally” (i.e. by respecting their rights) because they require “attack
judges” prepared to put pressure on suspects, e.g. by detaining them in prison, until
they confess. He claims that there is “no moral obstacle” for judges and prosecutors
to use such techniques, including leaking evidence to the media, even though he
concedes that “there is always a risk of undue harm to the honour of an investigated
person.” Indeed, he goes on to admit that because it is difficult to convict corrupt
agents, “public opinion may be a healthy substitute” instead of convictions of suspect
politicians, by “condemning them to ostracism”. He decries the presumption of
innocence, a principle which in his view is not binding.
52. These rejections of fundamental human rights in the investigation of political
corruption cannot be the public philosophy of judges engaged in corruption
investigations and trials, who are bound by a constitution and by an international
human rights law that requires them to abide by fundamental rights. No complaint is
made about Moro as a crusader against corruption: the complaint is that while he does
so by campaigning against fundamental rights he cannot be perceived as impartial
when he sits as a judge and breaches these rights. When he speaks of Craxi, and then
of the same conditions in Brazil, the analogy implies Lula’s guilt. The very fact that
his own office “leaks like a sieve” to the media, as does the prosecution office, is
evidence that he is out to destroy Lula’s honour and reputation: his leaks have
whipped up the same kind of demonstrations against Lula that he applauds against
Craxi. Were he a private citizen he would be entitled to advance these arguments
(although other countries have tackled political corruption effectively in ways that do
not destroy fundamental rights). Because he uses his office to advance them, he
thereby disqualifies himself as a judge.
53. The complainant filed a motion to seek Moro’s recusal, but this had no prospect of
success as it was decided by Moro himself (see later). There seems no prospect that the Federal Regional Court of the 4th Circuit, to which Moro is connected, will act to
remove him from Lula’s case, or that the High Council of Justice (Conselho Superior
27

de Justiça) will do so. Any consideration of the Federal Regional Court of the 4th
Circuit will be delayed beyond the time when he can, acting as a biased judge, order
Lula’s arrest and subsequently preside over his trial, then convict and sentence him.
Against this prospect, there is no timely or effective remedy
54. As a final and clinching argument for Moro’s perceived bias, there are exhibited a
number of newspaper articles over the last few months (and also a voter preference
poll conducted in view of this scenario) (Exhibit K), which expect or encourage Judge
Moro to stand for the Presidency of Brazil in 2018, an election at which Lula will
again be eligible to stand so long as he has not been convicted – by Judge Moro. The
Judge has not ruled out the ambition imputed to him by these (and many other)
articles, and must therefore be objectively considered as a potential candidate. There
could be no stronger case of perceived bias for a potential presidential candidate to sit
as a Judge on the case of a rival candidate, with a strong interest in convicting (and
therefore disqualifying) that candidate. Judge Moro decided that this objection to him
“lacked seriousness” because he was not responsible for acts of third parties. But if he
is to sit as trial judge he must remove any public apprehension that he may stand for
President, and he has, notably, not done so by denying these media stories.
55. HRC jurisprudence upholds the principle that justice must be seen to be done by a
judge whom reasonable observers recognise to be impartial. Involvement of judges in
preliminary proceedings wherein they form an opinion about a defendant is
incompatible with the requirement of impartiality in Article 14: Larranga v
Phillipines 1421/05, paragraph 7.9. Judges must not only be impartial: objective facts
giving rise to a perception of bias requires their disqualification: Lagunas Castedo v
Spain (1122/02) paragraph 9.7. Moro’s decisions to issue a bench warrant and to
disclose to the media the transcripts disqualify him from having any further power
over Lula’s cases.
Complaint 5: Article 9 – Liability to Indefinite Pre-Trial Detention
56. As explained above, Judge Moro is a strong advocate of placing suspects in detention
until they confess and make a plea bargain. In ‘Operation Car Wash’ he has put in to
practice what he preaches, and has confined many arrested suspects in prison until
they have plea-bargained, whereupon they are released and later convicted but given
light sentences. This practice is, it is submitted, contrary to Article 9. Although there
have been legislative attempts to make better provision for habeas corpus, these have
28

been publicly opposed by Judge Moro and have not yet passed in Parliament.
Although Article 9(3) of the ICCPR lays down that “it shall not be the general rule
that persons awaiting trial shall be detained in custody…” it has been a general rule
applied by Judge Moro to ‘Car Wash’ defendants.
57. This complaint is made de bene esse, in the sense that at time of writing the
complainant has not been arrested and detained. However as the target of
investigations aimed at him, he is liable to be placed in detention once Judge Moro
directs his arrest. In other words, he has been formally identified as a suspect (in a
number of investigations) and is currently undergoing a procedure (so far, including
searches and seizures, interrogation and telephone tapping) which will in all
likelihood lead to his arrest and indefinite detention without any effective remedy. On
this basis, it is submitted that he is entitled to complain of imminent violation of his
rights. He is a ‘victim’ under the Committee’s jurisprudence, because there is a real
risk of the violation of his ICCPR rights by the State: Kindler v Canada (470/91)
paragraph 13.2.
58. Preventive detention, as exemplified by the Brazilian plea-bargaining practices of
“delação premiada” and colaboração premiada, is strictly circumscribed by
international law, because pre-trial detention is a form of punishment. The Committee
Against Torture has expressed concern about lengthy pre-trial detention of the kind being ordered by Judge Moro,15 and in 2007 the UN High Commissioner noted that
the high proportion of Brazil’s prison population being held in pre-trial detention was a matter of special concern.16 In 2013 the Inter-American Court of Human Rights
reported adversely on pre-trial detention throughout the region, pointing out that
under Article 7(5) of the American Convention on Human Rights “the sole legitimate
grounds for pre-trial detention (are) the risk of the accused attempting to escape justice or hindering the judicial investigation”.17 It went on:
“[States should] use pre-trial detention only when there are no other means to ensure
the appearance of the accused at trial and to prevent tampering with evidence;
interpret restrictively the circumstances in which pre-trial detention can legally be
ordered; review the laws and judicial practices to ensure that the measure is used

15 See its concluding observations, official Records of the general Assembly, 56th Session, Supplement No.44 (A/56/44) paragraph 119(c) 16 Press Release, 5th December 2007 17 ICHR Report, p.45 paragraph 106 & p.61 paragraph 144
29

only in exceptional cases and for the shortest time possible; implement other
precautionary measures, such as bail, house arrests, or electronic bracelets…”
Consistently with this approach, the IACHR has ruled that the presumption of
innocence requires the State to bear the burden of proving that the pre-conditions for pre-trial detention exist,18 and where it is strictly necessary to curtail liberty “to ensure
that (the defendant) will not impeded the efficient development of an investigation and that he will not evade justice”.19
59. The Court has emphasized that “the personal characteristics of the supposed author
and the gravity of the offence he is charged with are not, in themselves, sufficient justification for preventive detention.”20 It follows that it cannot be sufficient to show
that a particular accused is wealthy or has rich supporters or is accused of serious
corruption. It certainly cannot be relevant for an investigative judge to use it as “a way
to highlight the seriousness of the crime and demonstrate the effectiveness of judicial
action especially in lengthy judicial systems” – all reasons that Judge Moro has given for using it.21 That approach does not focus on the facts of the case but uses the
detention as a device to demonise the defendant in the public eye. Judge Moro’s
approach in other cases has been to impose pre-trial detention because the defendant
has not acknowledged guilt, and in the case of the lack of such acknowledgement,
there is a danger that the defendant will if set at liberty continue the corrupt activities.22 In other words, Moro declines to apply the presumption of innocence,
because he assumes that the facts he has to prove by evidence are proved simply
because of his belief in the truth of those factual assumptions.
60. It is quite clear that international law prohibits detention when the purpose is to
pressure a defendant or witness to confess. Nonetheless, Car Wash prosecutor Manoel
Pastana has stated that “for the bird to sing it has to be caged” and that pre-trial
detention has “the important function of convincing the criminal offenders to
cooperate with the unveiling of penal illicit acts, obtaining the possibility of

18 Uson Ramirez v Venezuela, 20 November 2009, Series C No.207 paragraph 144 19 IACHR Report, p.60 paragraph 74 20 Bayarni v Argentina, 30th October 2008, Series C, No.187 paragraph 74 21 Means and Ends, 5th January 2015 22 See Alencar decision, 24th June 2015
30

influencing them to helpfully cooperate in the determination of liability.”23 This
amounts to an admission, by a member of the “Car Wash” apparatus, that the real
reason for pre-trial detention is to extract a confession. It goes without saying – it is
forensic experience throughout the world – that confessions extracted in these
circumstances are likely to be unreliable, and should not be used as the basis for
findings of guilt. The ‘strategy’ used by Judge Moro thus breaches the rule against
self-incrimination, a sub-rule of the presumption of innocence.
61. Article 312 of the Brazilian Code of Criminal Procedure provides that preventive
detention may be ordered “to maintain public order, economic order, for the
convenience of a criminal investigation or to secure the enforceability of the criminal
law, whenever there is evidence of a crime and sufficient indication of who committed
it.”
62. These provisions are, in their generality, wider that international law permits and must
be construed restrictively and consistently with Human Rights treaties. The ICCPR
requires pre-trial detention to serve one of a number of precise purposes: to prevent
flight, or interference with evidence, or commission of further crimes. The HRC has
therefore condemned states which have held defendants in custody to make them cooperate.24 The “maintenance of public order” – the exception under which most ‘Car
Wash’ suspects have been ordered to be detained– is vague, and must be confined to
emergency situations. Similarly, the ‘convenience’ of a criminal investigation should
be interpreted as a situation where the detainee is likely, if released, to frustrate the
investigation by fleeing or interfering with witnesses, or can be shown (from his
criminal record or his recent intentions) to be likely to commit further serious crimes.
It is submitted that Article 312 does not comply with Article 9: it lacks the ‘strict
criteria’ to regulate detention to obtain testimony, which is an exceptional measure that must be carefully and precisely regulated.25

23 This statement was given by Manoel Pestana in his opinion on Habeas Corpus C 5029050-46.2014.404.0000. Item 2, headnote of the Federal Attorneys’ Office statement. 24 Van Alphen v The Netherlands 305/88 25 John Campbell v Jamaica 307/88 paragraph 6.4
31

Complaint 6: Article 14(2) – Breach of the Right to be Presumed Innocent
63. It is well accepted in international law that a virulent press campaign can have an impact on the presumption of innocence (See Ninn-Hansen v Denmark;26 Beggs v UK).27 The fact that public officials pre-judge the defendant’s guilt, either by public
statements or ‘leaks’ to the press, is also capable of breaching the presumption (e.g. Allenet de Ribemont v France).28
64. Police have suspicions that Lula may own an apartment and a farm on which work
has been done by construction companies as a favour to him for services rendered.
Lula denies any ownership rights in either property, and in any event the impugned
work was allegedly done years after he left office. Police also suspect corruption from
the fact that several large construction companies paid him to give lectures, but so did
Microsoft and many other companies, even the Globo media network which has been
his main media accuser. Again, these lectures were given years after he left office.
Police and prosecutors have nonetheless ‘leaked’ their suspicions and their
assumptions to the media, which has published them as fact and without critical
analysis, in order to create a public expectation that Lula will be arrested and found
guilty.
65. Many Car Wash suspects have been held in detention until they plea-bargain, and the
details of the plea-bargain whenever they mention Lula or his associates are leaked to
the media, which deploy the leaked information, no matter how unreliable, to add to
the public demonization of Lula and the expectation that he will be found guilty of
corruption.
66. The main Brazilian media – newspapers, magazines and television – are all hostile to
Lula. They are led by the Globo media franchise, which is the most powerful and
most hostile to the Workers Party. Although Lula is formally a subject of
investigation, Brazilian law gives no protection to his honour and reputation in this
period, e.g. by contempt of court laws preventing the media from prejudging his guilt.
67. Judge Moro has done nothing to discourage the slander, because of his notion that
‘public opinion’ must demonstrate its support for prosecutions (to the extent of
stoning suspects and their houses – see his Craxi example). This may be why he is

26 Decision No.28971/95 ECHR 1999 27 Decision No.15499/10, 16th October 2012 28 10th February 1995, paragraphs 39-31, Series A No.308
32

prepared to destroy reputations and invade privacy. As he said to the audience at the
end of a recent press conference:
“These cases involving severe corruption crises, powerful public figures, only
proceed if supported by the public opinion and the organised civil society. And this is your role. Thank you!” 29
68. Having in this way encouraged demonstrations against Lula and other suspects, Judge
Moro at a public event saw fit to thank and congratulate the demonstrators, who were
hailing him as a hero:
“Today, the 13th of March, the Brazilian people took the streets. Among the
many reasons, to protest against the corruption which has penetrated in many of our
institutions and in the market. I was moved by the support to the investigation of so
called Operation Car Wash.
Despite the references to my name, I attribute to the kindness of the Brazilian people
the current success of a solid institutional work involving the Federal police, the
Federal Attorney’s Office and all the bodies of the Judiciary Power. It is important
that the elected authorities and the parties listen to the voice of the streets and also
commit to fighting corruption, reinforcing our institutions and weeding out the bad apples completely…”30
69. Moro’s desire to whip up public opinion so that people who believe in the guilt of
Lula shout that belief in the streets, is shared by his Car Wash ‘apparatus’, namely the
Federal prosecutors and the police. It is clear from the Committee’s jurisprudence and
from General Comment 32 on the Presumption of Innocence that “It is a duty for all
public authorities to refrain from pre-judging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilty of the accused.”31 This
principle was applied in Gridin v Russian Federation, where public assertion of guilt
by a high ranking prosecutor at a public meeting, together with prosecution leaks to a hostile media were held to breach Article 14(2).32 The same case establishes that

29 This statement was made in a lecture held in São Paulo, which was attended by several businessmen and authorities. Link: https://www.youtube.com/watch?v=hYlKkjAOv-g  30 13th March 2016, Judge Moro – Available on: <http://gl.globo.com/politica/blog/cristiana-lobo/post/sergiomoro-diz-que-ficou-tocado-com-apoio-da-populacao-lava-jato.html&gt; 31 Communication No.770/1997, Repeated in Kozulia v Belarus No.1773/2008 and Zinsou v Benin No.2055/2011 32 770/97, paragraph 8.3
33

media comment can prejudice a fair trial if there is a failure by the state to use its powers to curb it. Similarly in Saidov v Uzbekistan,33 Article 14(2) was breached
through extensive and adverse pre-trial comments by ‘state directed’ media. It is
significant when there is a link between the adverse media coverage and the state:
here the link is in the fact that the coverage is of matter ‘leaked’ from the office of
prosecutors – agents of the state, who provide information to the press in order to
assist it in vilifying the defendant. Lula’s lawyers have requested both prosecutor and
judge to have these ‘leaks’ stopped, but to no avail. They have no effective remedy,
and indeed no remedy at all.
70. The complainant has made every available effort to stop the leaks and to stop the
Federal Prosecutors from continuing to make public statements asserting Lula’s guilt.
But these efforts have been to no avail. The only remedy available against the latter
abuse is a complaint to the Prosecutor’s National Council. This Council was addressed by lawyers on behalf of the complainant on 31st May 2016. They pointed
out that Lula was being formally investigated in legal secrecy, but one of the heads of
that investigation, Carlos Fernando dos Santos Lima, was going on the media and affirming Lula’s guilt. For example, he told Radio Station Jovem Pan on March 27th:
“We clearly see payments by construction companies benefitting the former
President and his family… others who co-operated (i.e. by plea-bargains)
confirm the former President already knew about the scheme and approved
it… And he also knew about everything, he had the power and ability to hinder
the result… so in this sense he was not just being part of it, and that’s why
saying he ruled over it is correct. He is the author of the crime”
71. These verbatim statements by one of the Prosecutors acting in Car Wash,  presuppose
and urge the complainant’s guilt in a way which is contrary to HRC General
Statement 32 and to a number of HRC decisions which were drawn to the attention of
the National Council of Prosecutors. But they took no action on the grounds that they
could not reproach a member of the Federal Attorney’s Office. The Council remitted
the matter for “internal investigation” – a prolonged process which is merely
disciplinary and will not curb such conduct. In fact, Brazil’s Attorney General, Rodrigo Janot, who also acts in Car Wash, gave an interview on June 22nd to the
‘Washington Post’, agreeing that he (Janot) was “the man who makes Brazil shiver”.

33 964/01, paragraph 6.06
34

Janot suggested that Lula was at the top of a criminal organisation pyramid and that
his investigation was now ‘near the top’.
72. In respect of this complaint, the Human Rights Committee is invited to apply a
‘horizontal’ or Drittwirkung approach, requiring the state to protect against violation
of a suspect’s rights by laws (such as contempt of court) which prevent third parties
such as the media from presenting a suspect as guilty, and thereby prejudicing his
trial. Here, we have a case where confidential information is supplied or ‘leaked’ by
state agencies to the media so that they can deploy it to demonise a suspect and create
an expectation that he will be found guilty – which will make it easier for the public
to accept Judge Moro’s decision to find Lula guilty.
73. This would not happen if Brazil adopted a law that prevented a campaign of
vilification against suspects prior to their trial; a law which prevented prosecutors
from publicly urging the guilt of people they are in the process of prosecuting and a
provision that excluded prosecutors from a case if they have been found to have
publicly presumed the suspect or defendant’s guilt. This follows from General
Comment 16, in which the HRC ruled that protection must be guaranteed against all
arbitrary or unlawful interferences or attacks, whether they emanate from state
authorities or from natural or legal persons (i.e. media companies). Article 17(2)
requires states to protect those within its jurisdiction, by ensuring that everyone has
the protection of law against arbitrary attacks on their home or reputation. The
behaviour of the Federal Prosecutor and Federal Judge, in ‘leaking’ confidential facts
discovered in the course of the investigation to the media, constitutes a breach of the
presumption of innocence. There is no remedy, because requests (even from Supreme
Court Judges) to investigative and punish the leaks, have received no response from the relevant authorities.34 That is because the relevant authorities are the Federal
Prosecutor and Judge Moro.
74. A chronological spread-sheet of popular magazine covers, featuring stores based on
these leaks, is exhibited, from which it can be seen how, in 2015-16, the complainant
has suffered from a prosecution-initiated campaign of disparagement and presumption
of guilt (Exhibit M). Also exhibited (Exhibit N) is a statement by Professor Luiz

34 Petition 6171, currently before the Federal Supreme Court, which requests investigation into leaks of confidential information. Although the contents were confidential, the newspaper “Estadão” published the following news: “The Atibaia Countryside House” Complaint will be the first charge against Lula in Operation Car Wash”.
35

Moreira Gomes Junior explaining how the virulence of the press campaign against
Lula has put pressure on the judges and denied him a fair trial.

36

PART IV
EXHAUSTION OF DOMESTIC REMEDIES
1. The arbitrary detention on 4th March
75. Lula was arrested at 6am on a bench warrant that the issuing judge should have
known to be illegal. He was taken for compulsory interrogation to a police compound
in an airport. The prosecutors leaked the arrest to the press before it took place so that
the media would arrive at his house and then at the airport, and sensationalise the
story. He was released after 6 hours of police detention, having been given no
alternative but to comply with the interrogation. He was not given the opportunity to
challenge the bench warrant at the time, and the damage done to him by the publicity
was irreversible. Any complaint against Judge Moro, however, would merely be sent
for “internal investigation” by a council of judges which would not result in an
effective remedy. Any subsequent constitutional action would be met by the argument
that the litigation was a “brutum fulmen”, i.e. futile, because the case was in the past
and the damage was irreversible. Lula might sue for civil damages, but trial would be
long delayed. This illegality perpetrated by an investigatory judge through the issue of
an unlawful bench warrant has no satisfactory remedy in Brazilian law. In other
jurisdictions, it would be the subject of a Court declaration of unlawfulness, and an
order for costs and compensation. That is what Article 9 ICCPR requires. In any other
jurisdiction, it would disqualify Moro from sitting as trial judge, but an application to
this effect had to be decided by Moro himself, and an appeal could be delayed until
after he could order Lula’s arrest and could convict Lula himself.
2 & 3.  The telephone taps and their illegal release, 13th May 2016
76. Not only was evidence for the warrant for these interceptions (including the
interception of Lula’s lawyer) insufficient, but the transcripts were unlawfully
disclosed to the media by Judge Moro to the great damage of the complainant and his
family. Some of the transcripts were of tapes that had been recorded after the judge
himself had ordered the taping to stop: he knew they were illegally made, but
nonetheless disclosed their contents in the knowledge that they would arouse public
hostility against the complainant. There was no remedy available to the complainant
and his family, other than a civil action which will take years to come to trial. There
37

were transcripts of calls between the complainant and the President (Ms Dilma
Rousseff) and for this reason alone the Supreme Court had jurisdiction to entertain a complaint by her. On 22nd March Judge Zavascki ruled that the release of these
transcripts was unlawful and that the interception lacked any justification, but
nonetheless “we must recognise the irreversibility of the practical effects arising from the undue disclosure of the taped telephone conversations.” On 13th June he further
ruled (1) that Moro had unlawfully refused to forward the intercepted conversations of
the Supreme Court and (2) had unlawfully lifted the confidentiality of the illegally
intercepted conversations with the President. These rulings provided no remedy or
redress to Lula, as they covered only the release of the taped conversation with the
President, and accepted that the effects of the illegality were “irreversible”. No action
was taken by judicial or government authorities to recuse or remove judge Moro,
despite the unlawfulness of his actions, and (as pointed out above) the only appeal is
to Moro himself. In any country that purports to abide by the rule of law, a judge who
breaches the law in this way would probably be removed from office, and certainly
recused from judging the case of his victim. There is no effective way the
complainant can require action by government or by the Judicial Council. (see
paragraphs 35-37 above)

4. Lack of impartiality by Judge Moro
77. There is no effective or expeditious way in which this judge can be recused for his
obvious bias (see paragraph 49 above). That is because the appropriate motion to
recuse can only be filed before the judge himself (who is obviously an interested
party) or by a complaint petition directed to the Attorney General (Rodrigo Janot)
who has himself, in his role as Federal Prosecutor, accused Lula of being guilty. In
any event, the Attorney General merely has a discretion to initiate government action,
which does not amount to a remedy that is effective, for the complainant. Due to the
evident violation to the principle of the impartial judge, a Motion to Reject
Jurisdiction of the Judicial District of Curitiba (i.e. Judge Moro) was filed and was
duly rejected by Judge Moro. This “remedy” is obviously not efficient to guarantee a
trial with an impartial judge, as it hinges on the decision of the very judge to whom
objection is taken.

38

5. Detention without trial
78. The complainant is under formal investigation as a defendant: he is therefore liable at
any time to be arrested and detained by order of Judge Moro, and this action by the
judge is reasonably foreseeable. This judge is notorious for holding suspects arrested
in the Car Wash operation in indefinite detention until they make a plea bargain. They
have no right to habeas corpus, or to access to a court to order their release, other than
to a ‘court’ comprising of Judge Moro himself. Although the complainant has not yet
been arrested, as a declared suspect he is vulnerable to arrest at any time and is
therefore a person likely to be subject to arbitrary detention. The statute law and case
of Brazil does not provide him with an available remedy, because the law itself is so
broad that it does not comply with Article 9. It does not confine pre-trial detention to
cases where there is likelihood of flight or interference with evidence: its grounds for
pre-trial detention are so broad that they have been interpreted as enabling detention
in order to obtain a confession (i.e. a plea bargain).

6. Right to be presumed innocent
79. This Right is put in jeopardy by the persistent leaking by the prosecution to the press
of its investigative theories, seized documents, interview transcripts and plea bargains,
with the intention or at least the consequence of creating a public expectation of
Lula’s guilt and whipping up public hatred against him. There has been no attempt by
the authorities to stop these leaks, which have been approved by judge and prosecutor,
and Brazilian law does not contain any provision against contempt of court or the like
to prevent the media from pre-judging guilt. Complaints were made on behalf of Lula
to the National Council of Prosecutors about the behaviour of the Federal Prosecutor,
in publicly alleging that Lula was guilty, but this complaint was not accepted (see
above). The council merely sent it for “internal investigation”: a lengthy complaints
procedure which is merely administrative and does not satisfy the test for an effective
remedy, because it is a discretionary disciplinary proceeding; see Coronel et al v
Colombia, Communication 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002).
Moreover, it has no reasonable prospect of success (see Patiño v Panama,
Communication 437/1990 UN Doc CCPR/C/52/D/437/1990 (1994)).

39

7. Current Position 80. By Order of the Federal Supreme Court on June 13th 2016, all investigations of Lula (now numbering thirteen) were returned to Judge Moro, who on June 24th ordered that
the proceedings should resume. Lula’s suspicion motion (Exhibit O) that Moro should recuse himself was rejected on 22nd July 2016 (Exhibit P).


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