Protocol communication – 1

Communication under the Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR)
To: Petitions Section, Office of the High Commissioner for Human Rights, United Nations
Office  at Geneva, 1211 Geneva 10, Switzerland
Filed on the 28th July 2016

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PART I

Complainant Name: Luiz Inácio Lula da Silva, invariably known as ‘Lula’ Nationality: Brazilian Date and Place of Birth: 27th October 1945, Garanhuns, Pernambuco, Brazil

Address for Correspondence c/- Valeska Teixeira Zanin Martins & Cristiano Zanin Martins Teixeira, Martins & Advogados Rua Padre João Manuel 755, 19º andar CEP: 01411-001 São Paulo Brazil

Email: valeska@teixeiramartins.com.br  Telephone:  +55 11 3060 3310

c/ – Geoffrey Robertson Q.C. 53/54 Doughty Street Chambers London WC1N 2LS United Kingdom

Email: g.robertson@doughtystreet.co.uk  Telephone: +442076247146

Name of state against which complaint is directed Brazil (ratified ICCPR in 1992; ratified Optional Protocol in 2009)

Language  The correspondent speaks Portuguese, the native language of Brazil. As this is not an HRC language, all documents in the case will be translated into English.
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PART II

Articles of Covenant alleged to have been violated (i) Article 9 (1) & (4) – protection from arbitrary arrest or detention
(ii) Article 14(1) – entitlement to an independent and impartial tribunal
(iii) Article 14(2) – right to be presumed innocent until proven guilty by law
(iv) Article 17 – protection from arbitrary or unlawful interference with privacy,
family, home or correspondence, and from unlawful attacks on honour or
reputation.

APPLICATION TO OTHER INTERNATIONAL PROCEDURES  This matter has not been submitted for examination under any other international procedure of investigation or settlement

EXHAUSTION OF DOMESTIC REMEDIES In each abuse of power of which complaint is made herein, there is no remedy afforded by Brazilian law or procedure which is available within reasonable time and/or which is effective. See Part IV.
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PART III FACTS OF THE COMPLAINT
BACKGROUND

1. Lula was the elected President of Brazil, an office he held from 2003 to 2010. He is a
metal-worker who became a trade union leader and went on to found the Workers
Party, which is one of the main parties represented in the country’s Federal Congress,
i.e., in the House of Representatives and the Senate. His successor as President, Ms
Dilma Rousseff, is also a member of the Worker’s Party. Since leaving office Lula
has made a living as a lecturer and remains politically active. He is internationally
renowned as a fighter for worker’s rights and for the country’s economic and social
development, especially for the relief of poverty; in Brazil his honour and reputation
stands high, particularly among the poor, but he has many detractors all-too ready to
believe ill of him when he is defamed by judges and prosecutors who have included
him as a suspect in corruption enquiries. Such authorities try to create public
expectations of Lula’s guilt through their collaborations with media companies which
are almost all opposed to the former president and his Workers Party.

2.  Lula does not bring these proceedings out of any claim to be above the law: as an ex
President he holds no office or subsisting privilege, and he has always assisted police
and prosecutors when they requested him to provide clarification in their enquiries or
other investigative procedures. He brings these proceedings because he has been made
the victim of abuses of power by one judge, aided and abetted by the prosecutors who
attend him, and acting hand in glove with the media. These abuses cannot be
satisfactorily remedied in Brazilian law. Having been advised that certain violations
of human rights he has suffered or is likely to suffer (notably invasion of privacy,
arbitrary arrest, indefinite detention before trial, media presumption of guilt and
inability to remove a biased judge) are contrary to international human rights law,
Lula seeks a determination to this effect by your Committee in the hope and
expectation that its views on these complaints will not only provide some redress for
the violation of his rights but will assist future governments in making laws and
procedures which strengthen the fight against corruption whilst protecting the basic
rights of suspects.

3. Corruption has long been a problem in Brazil, although a recent study concludes that
it is less serious than in most countries and it tends to be exaggerated by the local
5 media.1 Nonetheless, and notwithstanding the other claims on his presidential time, Lula took a number of legislative initiatives to combat it, as did his successor.2 There
was one case, the Mensalão proceedings, that concerned alleged ‘backhanders’ taken
by a number of Congressmen and officials from various parties (including the
Worker’s Party) who have been convicted. However, an official enquiry found as a fact that Lula had no involvement.3

4. The case in which he has become a suspect is called “Operation Car Wash”
(Operacão Lava Jato). That operation happened to be within the federal jurisdiction of the state of Parana, and it fell into the jurisdiction of the judge of the 13th Federal
Criminal Court of Curitiba, Judge Sérgio Moro. He is a crusader who believes that
corruption convictions should be obtained by procedures that breach human rights. As
he explains in lectures, public hostility should be whipped up against particular
powerful political suspects, whose prosecution will become easier if it is supported by
a mob. They should be held in prison until they confess (i.e. make a plea bargain) and
they should suffer public obloquy, whether or not they are convicted. Evidence
obtained by telephone tapping which may show them or their family in a bad light
should be disclosed to the public (see later, paragraph 28). Moro has become a man
consumed by a desire for favourable self-publicity, in order to aggrandise his crusade
against politicians he alleges are corrupt, allowing books and magazines to describe
him as the “hero of Brazil” for his crusade against corruption. This is not a
disqualification for a journalist or a politician but it is wholly inappropriate for a

1 L Pagotto & A Teixeira, ‘The Brazilian Anti-Corruption Policy in Motion’ (2016) 17(2) Business Law International 103 2  Among the measures against corruption taken during Lula’s government we note: (a) the actual creation of the Office of the Inpector General (Controladoria Geral da União – CGU), a body created to fight corruption; (b) the creation of the Transparency Portal (Portal da Transparência) and the Registry of Unqualified Entities (Cadastro de Pessoas Inidôneas), which lists the entities which have been penalized and are prohibited from executing contracts with the Government; (c)  the expansion and broad qualification of members of the Federal Attorney’s Office, the Federal Police and the Financial Activities Audit Council (COAF – Conselho de Controle de Atividades Financeiras); (d) the election of the chief prosecutor of the Federal Attorney’s Office (the Attorney General) through direct votes from the members of the Federal Attorney’s Office; (e)   the ratification of the United Nations Convention Against Transnational Organized Crime  (Decree No. 5.015/2004); (f)  the ratification of the United Nations Convention Against Corruption (Decree No. 5.687/2006); (g)  the enactment of Law No. 10,763 of 2003, which increased the punishment for corruption. 3 The final report of the Comissão Parlamentar de Inquérito (Parliamentary Commission of Inquiry) considered Lula’s knowledge of the wrongdoing and concluded that “there are no facts or evidence” to implicate him. “The country’s highest authority cannot be imputed with strict liability merely because he leads the executive – that would mean he would be liable when he had no knowledge of the facts… However, there is no evidence that he omitted to act when he should have.”

supposedly impartial judge. Moro even publicly participated in the launch of a book
entitled “Lava Jato” (Car Wash), which has his picture on the cover and which treats
him hagiographically, whilst it demonises Lula by placing him “in the centre of Car
Wash”. The rights for this book were sold and will serve as basis for a Netflix series
to be launched in 2017, which following the book will presumably depict Moro as
hero and Lula as villain. It is unprecedented, in terms of security and ethical judicial
behaviour, for a judge to endorse, publicly, with a book that condemns a man whom
he will try.
5. It is an anomaly of Brazilian law that the judge who takes jurisdiction over an
investigation, and to whom it therefore falls to approve the actions, warrants and
investigative developments by police and prosecutors in the case, is also the judge
who seamlessly goes on to determine guilt or innocence after he decides that the case
should proceed to a trial before him alone. There is no jury (except in crimes against
life) and the judge sits with no assessors. Hence there can be a clear danger of bias, in
the case of a judge who has opened investigative procedures against a
suspect/defendant and ordered search and interception procedures in the hope of
incriminating him and on the assumption that he is probably guilty. Most jurisdictions
separate the investigation stage from the trial stage, but Brazil does not. All other
jurisdictions at least permit judicial recusal where the investigating judge has
displayed hostility to the defendant: this judge cannot be perceived as impartial.

6. It is a further anomaly of Brazilian law that a judge in the investigative phase can
order a suspect’s arrest for an indefinite time until he makes a ‘plea bargain’
acceptable to prosecutors. This will involve a confession, likely to have been induced
by a wish to get out of prison. The same judge who approves the plea bargain will
then turn around to become the trial judge, convicting the plea-bargainer and deciding
sentence.
7. “Operation Car Wash” has undoubtedly uncovered some serious corruption in the
national oil and petrol company, Petrobrás, as the result of the apparent unlawful
operation of Brazil’s five major construction companies, which allegedly formed a
cartel, and the desire of various parties, across the political spectrum, for secret
campaign funds. The allegation is that the construction cartel agreed to a system of
fake tendering, whereby the “winner” would be contracted in a sum much higher than
the work was worth: illicit payments could thereupon be made to Petrobrás directors
and officials who facilitated the scheme, and to politicians who politically supported
these officials. This amounts to corruption at an institutional level. Many suspects
have been arrested and some convicted – although on plea bargain confessions of
questionable reliability because they were made to obtain release from detention.

8. The complainant has always asserted that he supports proper investigation of any
crimes by the building industry cartel and any complicity in these crimes by officials
and politicians of whatever party. He has repeatedly and emphatically denied that he
has known, let alone approved, of such crimes or that he has knowingly received any
money or favours as “kickbacks” for actions or decisions he took when Brazil’s
President, or at any other time. He has refuted, in detail, allegations that construction
companies helped him buy a holiday apartment (he did not buy it) or to furnish a
country property (which was owned by friends) in return for any favour, or moreover
paid for his lectures as a quid pro quo for services rendered to them while he was
President (the lectures were given years after he left office and no evidence has
emerged for any such agreement: the lectures were all given for a fixed sum and had
no reference to any precedent or a corrupt act on the part of the President). He has
always voluntarily submitted to requests for questioning by police or prosecutors.
Nonetheless, he has had to suffer, at the hands of Judge Moro, outrageous breaches of
his privacy and a short but wrongful detention without any legal provision achieved
by Moro’s authorization of a bench warrant, and because Moro has opened
investigations into him he is likely to suffer arbitrary and indefinite detention and
unfair trial by a biased judge. Because of systematic leaks from the Judge and the
Prosecutors, the media have created a climate in which his guilt is presumed.

9. Judge Moro (who has been relieved of all other duties so he can concentrate full-time
on ‘Car Wash’) and the prosecutors (who belong to the designated “Operation Car
Wash Task Force”) led by chief prosecutor Rodrigo Janot (who is also Brazil’s
Attorney General), have made no secret of the theory upon which they are trying to
arrest and convict Lula. It is a discredited doctrine which emerged during the ‘Clean
Hands’ (Mani Pulite) prosecution in the early 1990’s of Italian political figures
(including Prime Ministers) alleged to have been in cahoots with the Italian Mafia. It
is literally translated as “domain of the fact” although it appears to be a distorted
version of the international criminal law principle of “command responsibility”. In the
view of Moro and the prosecutors, it means that when serious criminality can be
imputed to a gang, the presumption of innocence is reversed in relation to the gang
leader, who is assumed to be guilty unless he proves his innocence. Of course, there
can be no equivalence between the government of Brazil and the Italian Mafia, and
the gang involved in “Car Wash” was the construction company cartel, of which it
cannot be alleged that Lula was the boss. But in any event, “command responsibility”
(derived from the U.S. Supreme Court ruling in In re Yamashita) requires both
knowledge of the crime and approval of it by a commander, and no evidence of either mental state has emerged against Lula.4 However, in order to arouse public anger
against him and public expectation that he will be found guilty, prosecutors and the
judge have disclosed many of the seized documents and transcripts of telephone
intercepts to the local media, to create an expectation that Lula will be arrested and
found guilty. The Chief Prosecutor Janot has denounced Lula on the basis that “the criminal organisation could not exist without Lula’s participation”.5A prosecutor, who
is spokesperson for the Car Wash task force, Mr. Carlos Fernando dos Santos Lima,
has publicly declared that he is guilty. A complaint was made by Lula against this
prejudicial and improper prosecutorial conduct to the audit body of the Federal
Attorney’s Office (the National Council of Prosecutors) however this body decided
that no measure could be taken to stop him from acting that way

10. Your committee has been astute to uphold fundamental human rights in respect to the
treatment of those suspected of terrorism, and for all the righteous public anger that
can be whipped up against politicians accused of corruption, it must ensure that they
are dealt with by the same basic standards. Since the ‘Car Wash’ case began in 2014,
basic standards have been flouted and breaches of the Convention have gone
unredressed. The investigative judge believes he is empowered to abuse those he
targets by releasing for public delectation and acrimony the transcripts and audiotapes
of telephone conversations he has ordered to be taped, subjecting  suspects to
indefinite detention until they confess; acting to oppress them in ways which he
knows to be contrary to law and (with the assistance of police and prosecutors)
leaking selective confidential information to media outlets known to be politically hostile to Lula so he may be stigmatised and demonised before his trial.6

11. The complainant asks the Human Rights Council to rule on six specific breaches of
the Convention to which he has been thus far subjected:

4 In re Yamashita, 327 U.S. 1 (1946) 5 O Globo, 4th May 2016, p.3 6 See Open Letter to the International Community from Professors and Researchers from Brazilian Universities, 26th March 2016.
COMPLAINTS
Complaint 1: Article 9 (1) – The Illegal Bench Warrant of 4th March

12. This was a blatant breach of Brazilian law by Judge Moro, who must be credited with
basic legal knowledge and therefore was well aware of the unlawful and arbitrary
nature of the action he took to restrict Lula’s liberty by issuing this bench warrant. It
is well known to Brazilian lawyers and judges practising in crime that Article 260 of
the Brazilian Criminal Procedure Code lays down an essential pre-condition for
issuing a bench warrant:
“260: If the defendant refuses to give testimony in the interrogation… the competent
authority may order that the defendant be compelled to attend the investigating
authority.”

13. It is clear as crystal from the legislation, and confirmed by case-law, that this is a
compulsory procedure which deprives the suspect of his liberty (i.e. by forcing him to
leave his home and to accompany the police/prosecution team to wherever they
choose to have the interrogation and for as long as they wish to interrogate) and can
only be ordered by a judge if the defendant has explicitly refused to give testimony
previously. The judge must first subpoena the potential defendant, and only if he fails
or refuses to answer to it can a bench warrant be issued.

14. In this case, however, Judge Moro issued the bench warrant on March 2nd, 2016 for execution on 4th March. Early that morning, the fact of the raid on Lula’s house was leaked to the media, undoubtedly from the prosecution apparatus (i.e. the judge, the
federal prosecutor and the federal police). The police obtained entry to the house with
the bench warrant at 6am, and demanded that Lula accompany them – not to the
nearest police station, but to the official compound at the Congonhas Airport, an hour
from his home. Lula refused, although he stated that he would be content to answer all
the questions at his home. The police insisted he obey the warrant as otherwise he
would be put in prison. His lawyer, on establishing that the bench warrant had been
signed by Judge Moro, advised him by telephone that he had no practical alternative
but to obey it, despite its illegality. Lula therefore accompanied the police: the
photograph below shows him (front right) being led away from his apartment in a
elevator packed with police. They took him to the airport, where the questioning
continued for some four hours. As Judge Moro would have known, the news that he
had issued a bench warrant for compulsory interrogation had been  leaked to the
media. There were in consequence photographs taken of Lula as if he were under
arrest, and while he was being held in the airport that was the scene for
demonstrations and counter-demonstrations. The whole event was staged by the
prosecutors so as to give the impression that Lula was under arrest because he was
avoiding questioning, and had a case to answer.

15. This spectacle was clearly foreseeable, which makes the judge’s subsequent

lula-elevador
justification for issuing the bench warrant disingenuous. Moro claimed that a bench
warrant was necessary to secure the safety of Lula, “to avoid the disturbance of the
public order” because it was less likely that disturbances would be caused at the
airport than at the house. This was not a justification at all, since the legal pre
condition for the issuance of the warrant was never fulfilled (i.e. there had been no
refusal to testify) and so the question of public order could not arise. It was also
hypocritical, because the breakdown of public order that did occur at the airport (rival
factions gathered to insult each other) came about because the fact of Lula’s detention
on a bench warrant had been leaked to the media by the police/prosecution team.
16. In his decision on the ‘Suspicion Motion’ that sought his recusal from the case, Judge
Moro offered a new justification for his action, namely an allegation that he had
learned from telephone intercepts that Lula had heard of the warrant and was minded
to “call some congressmen to surprise them”, and that this may have interfered with
the search. However, in context, this was merely a thought that some MP’s might be
Image: Lula in the elevator, image taken from CCTV footage of the 4th March 2016
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present as witnesses to any police action, which would have been his legitimate
entitlement. It cannot begin to justify an order for compulsory interrogation where the
suspect had not declined to be interviewed.
17. The illegal behaviour of Judge Moro was made the subject of expert comment (e.g. “Lula’s Bench Warrant was illegal and Spectacularized, say lawyers” (Conjur, 4th
March 2016, Exhibit A) and “Was Lula’s Bench Warrant Legal?” (Epoca Magazine, 8th March 2016, Exhibit A). All made the point that a bench warrant could not be
issued unless and until the suspect had refused to testify in the investigation. Not only
had Lula never been asked to testify in such investigation, but when he was requested
to provide testimony he always attended it and provided answers to all questions. The
pretence used by Judge Moro to “justify” the bench warrant, namely a fear of public
disorder, was hypocritical precisely because this was exactly the consequence which
could be foreseen from using a bench warrant to force him to testify, rather than to
allow him to testify voluntarily. The fact of the “arrest” – the compulsory detention of
the former president – was (as the prosecutors well knew, because they had tipped off
the media) calculated to give the impression that he was uncooperative and had
something to hide since he had to be subjected to a compulsory process only fit for
use against unwilling suspects.
18. This episode of the bench warrant stands out as a brazen illegality, used to damage his
individual liberty and security and to damage his public honour and reputation.
Although the period during which he was compulsorily detained was only 6 hours, the
event (and the demonstration it provoked) had enormous symbolic effect: anti-Lula
demonstrators at the airport carried effigies of the complainant in prison clothes, as if
in expectation of his jailing (see the photographs in text of Exhibit B, which were
widely published throughout Brazil in newspaper and on television). These
consequences were deliberately brought about by a hostile judge abusing his judicial
power to issue an illegal order, which he must have known would result in a spectacle
degrading to the former President’s honour, and against which he would have no
effective remedy.
19. The issue of the bench warrant was plainly a breach of Article 9(1) of the ICCPR, viz:
“1. Everyone has the right to liberty and security. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedures as are established by law.”
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The bench warrant deprived Lula of his liberty – he was placed in compulsory detention
for 6 hours, and taken by police to an inappropriate place for interrogation. He had
volunteered to answer questions at his home, but this request was refused. The detention
was unlawful (and thereby arbitrary) since the ‘bench warrant’ procedure is only available
for those who have already refused to testify. The ‘public order’ justification for using it
unlawfully was not and cannot serve as a defence or as an excuse. This is a notorious
example of judicial over-reach by lawbreaking, in this case with the object of publicly
shaming and demonising a suspect against whom there is no significant evidence of a
criminal offence.
20. The position has been described precisely by Celso Antônio Bandeira de Mello,
Professor of Administrative Law at the Catholic University of São Paolo, in a published interview:7
“A  gross illegal act was committed. A bench warrant cannot be imposed on anyone
unless this person refuses to testify. If the person in question never refused to testify;
has a fixed place, is a person that everyone knows where to find; if the person is a
public figure, such as former president Lula, who has testified in every occasion he
was called to do so, there is no sense in ordering a bench warrant.
A bench warrant is a violent action, literally, in a case like this. If we were under the
Rule of Law, the person who ordered such illegal act would obviously suffer a
sanction for having acted beyond his jurisdiction.
Such sanction should be imposed against the judge who ordered the bench warrant.
And also against the MPF (the Federal Attorney’s Office), because it should not
comply with an order that is clearly illegal. This is an illegal order, therefore the
MPF should also be punished.
I think nothing relevant will happen. What should happen is to hold liable the judge
for said illegal act, and the Federal Attorney’s Office for having complied with the
illegal court order. This should be the procedure according to the law. But the law

7 http://brasildefato.com/br/node/34318
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expects normality, and we are not living in an environment of normality, are we? At least I don’t think so.”8
21. Justice Marco Aurélio de Mello of the Federal Supreme Court has also commented on
the day when the bench warrant was executed:
“I didn’t understand it. A bench warrant is only applicable when an individual shows
resistance and does not show up to testify. And Lula did no receive a subpoena (…) Did he
(Lula) want that kind of protection? I believe that, actually, this argument was given to justify
an act of force. (…) This is a setback, and not a progress. (…) We are judges, not lawmakers, or avengers.”9

 

Lula testified on Friday, in page 24 of Operation Car Wash. Photo: Marcos Bizzotto / Raw Image

8 http://brasildefato.com.br/node/34318 9 http://www1.folha.uol.com.br/colunas/monicabergamo/2016/03/1746433-ministro-do-stf-diz-que-decisao-demoro-foi-ato-de-forca-que-atropela-regras.shtml
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Photo: AFP- The Congonhas Airport was crowded with protesters for and against Lula.
22. There is no doubt, from the Committee’s jurisprudence, that Article 9(1) is engaged.
Although the detention was “only” for 6 hours, its consequences for Lula were
calamitous, in view of the publicity and the insinuation from the bench warrant that he
was hiding from justice. The Human Rights Committee includes ‘house arrest’ as a
deprival of liberty: so too is compulsory transportation for questioning (see Jaona v
Madagascar Com 132/1983, (1985) paras 13-14). The bench warrant was plainly
unlawful, and it was arbitrary as well since it was inappropriate and unjust (De
Guerroro v Colombia Com 45/1979, UN Doc CCPR/C/15/D/45/1979 (1982)). Eight
hour detention, even when lawful, has been held to be disproportionate and therefore
arbitrary: Spakmo v Norway Com 631/1995 (1999) Paragraph 6.3.
Complaint 2: Article 17 – Publication by Judge Moro of (a) authorised and (b) Illegal
and unauthorised Intercepts
23. In February 2016, having secretly applied for and received the bank and tax records of
the complainant and his family, Judge Moro approved a request to tap the telephones
of the complainant, members of his family and his lawyer (the latter action being the
subject of the next complaint). The Federal Constitution itself provides for the secrecy
of telephone calls in Article 5, item X11:
“The secrecy of correspondence and telegraphic data and telephone communications
cannot be violated, except in the latter case upon court order, or in the cases and in
the manner provided by law for the purposes of criminal investigation or at the
evidentiary stage.”
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24. The Brazilian law on phone tapping provides, in Law 9, 296/96, Article 2, that it shall
not be allowed when:

(i) There are no reasonable indications that an individual committed or participated
in a crime, or
(ii) The evidence may be produced by other means.

25. It is the complainant’s contention that neither condition was fulfilled. Although the
law vouchsafed him no effective remedy, the fact that some interceptions were of his
calls to the President enabled the latter to seek a remedy directly in the Federal
Supreme Court. In President Rousseff’s complaint No.23.457/PR, Justice Teori Zavascki ruled (on 22nd March) that the reasons given by Judge Moro were
insufficient to justify such exceptional measures, which were taken for “merely
abusive” reasons (Exhibit C). Notwithstanding this illegality, Judge Moro had made
and received through it many transcripts of conversations between the complainant,
his family and his lawyers and other persons, which were authorized without legal
reason, but  he also authorized, in sequence, the lift of secrecy of the wire-tapped
conversations. This was a reprehensible and illegal measure (The Committee’s Article
17 jurisprudence endorses this position, namely that the State must take measures to
ensure that gathering and storage and use of personal data should not be subject to abuse or used for purposes contrary to Article 17 of the Covenant.10)
26. Article 8 of Law No.9, 296/96 provides:
“Phone call tapping, of any nature, shall be filed in separate records, attached to the
records of the police investigation or the criminal procedure, preserving the secrecy
of procedures, recordings and their respective transcriptions.”
27. It follows that a judge has no right or power or discretion to release transcripts of the
telephone taps to the media. Indeed, under Article 10 of the same law:
“It is a crime to tap telephone data and telematics communications or to breach
judicial secrecy without judicial authorization or for purposes which are
unauthorised by law.”

10 Concluding Observations on Sweden, 2009 UN DOC CCPR/C/SWE/CO/6
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28. Notwithstanding his knowledge that what he was doing amounted to a criminal offence, Judge Sérgio Moro on 16th March 2016 released to the media various
transcripts of telephone intercepts between Lula, his wife, his lawyers, his family
(including the wives of his sons) and third parties. He released not only the transcripts
but the audio versions of the intercepted conversations, so they could actually be
played on radio and television and downloaded from websites by curious members of
the public. This was an outrageous breach of the complainant’s right to privacy, with
no conceivable justification. It was designed to cause the maximum public
humiliation and embarrassment to Lula and his family. The malice of Judge Moro is
demonstrated by his decision to release transcripts of a robust discussion between his
wife and his son about demonstrators, and a discussion between his daughter in law
and her husband’s business partner which gave rise to idle gossip. Disclosure of this
material to the press had no conceivable public interest, and was done out of malice
with the design of publically humiliating and intimidating a suspect against whom his
invasive procedures had produced no evidence of crime.
29. Judge Moro’s behaviour became even more lawless. He had finally ordered an end to the intercept, at 11.12am on March 16th 2016, when he sent an urgent notice to the
Federal Prosecutor’s Office to discontinue tapping Lula’s telephone. At 11.44am,
records confirm that this Office notified the Chief Office of the Federal Police. But
contrary to, and in disobedience of, the judge’s order, the tap was still in place at
1.32pm, when Lula called the personal office of President Rousseff and discussed
with her matters related to his appointment as Chief Minister. This conversation,
although intercepted contrary to his own order, Judge Moro decided to release to the
media that very afternoon. It was not only unlawfully recorded, as he well knew, but
irrelevant to any subject of “Operation Car Wash”. But it contained sensational
information (i.e. Lula’s impending return to the Government), and Moro knew this
would cause political upheaval. Lula’s appointment would also have the effect of
taking his case out of Judge Moro’s jurisdiction and into the province of the Supreme
Court (henceforth, the prosecution would have to proceed against Lula before a
Supreme Court judge, because he would be a government Minister) and this was a
consequence that Moro was desperate to avoid. So desperate was he that he
deliberately breached the law that required him to send the intercept transcripts
concerning the President immediately and in confidence to the Supreme Court.
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30. Furthermore, the revelations on the transcript of the illegally recorded tape were, as
Moro well knew, of a kind to cause political sensation and mayhem, which of course
they did.  31. On March 29th, 2016, Judge Sérgio Moro provided information to the Federal
Supreme Court, in which he recognized that the lift of secrecy caused “unnecessary
embarrassments”, and he also “respectfully apologized” to the Supreme Court – but
not to Lula, who was jeopardized the most (Exhibit D). Also in this official letter sent
to the Brazilian Supreme Court, the judge made various charges against the former
president, including accusations that he intended to obstruct justice, which is a crime
in Brazil. He even made prejudicial comments about matters which are the objects of
investigations under the Federal Supreme Court, such as accusing the former
President of being the real owner of a property in Atibaia, which ownership he has
denied. This forms the subject of a charge which Moro may now bring to trial, and the
comments reveal his bias. No less than twelve times, Moro makes allegations of
crimes against Lula – a matter which will be considered under Complaint 4, the right
to an impartial judge.
32. Moro justified the release of the transcripts of the illegal tapes to the media on the
grounds of public interest, although this can be no defence. It was an excuse rejected by Justice Zavascki on June 13th 2016 when he considered the case brought by the
President:
“The public disclosure of the conversations was unacceptable… Against such an
express constitutional rule (see paragraph 22 above), it is unreasonable to say that
the public interest justified the disclosure or that the affected parties are public
figures (as if they have no right to privacy)… one must recognise the irreversibility of
the practical effects arising from the undue disclosure of the tapped telephone
conversations.” (Exhibit E)
33. Why did Judge Moro disobey the law and think (correctly) that he could get away
with doing so? Because he realised that he had, (albeit illegitimately) taped the
President (whose remedy lay under the jurisdiction of Supreme Court, and not of
Judge Moro) and that Lula, having been appointed Chief of Staff, would also be
outside his grasp, as he would henceforth would be answerable only to the Supreme Court. So the unlawful release of the tapes on the afternoon of Wednesday 16th March
was designed to create a public political outcry and to create strong pressure to
18

reverse the appointment of Lula. Moro’s release of the transcripts led to protests
against the government throughout the country, and to demonstrations demanding that
Lula be sacked and arrested: exhibited photographs show demonstrators with large
balloon effigies of Lula dressed as a convict (Exhibit F). The protests adopted the
‘spin’ supplied by the prosecutors office, namely that Lula’s appointment was not a
decision made in the public interest but rather an attempt to protect him from Moro’s
investigative jurisdiction. Moro himself justified his breach of the law on the grounds
of national interest. This is not, of course, a valid defence. Moreover, the national
interest that he invoked was in fact his own self-seeking interest in retaining power
through his capacity to indict an ex-President.
34. Moreover, the fact of Lula’s appointment as Chief of Staff was in any event announced to the public by the President’s Office on the morning of 16th March, and
it was not necessary to inform them through disclosure of telephone taps that this
would have a consequence of removing Lula from Moro’s jurisdiction – this was
obvious from the very fact of his appointment. Moro’s decision to release the
confidential transcripts gave the appointment a sinister (as well as sensational)
overtone, and was used to give the impression that Lula was anxious to escape
apprehension because he was guilty. 35. On June 13th, 2016, Justice Zavascki handed down his final decision on Moro’s
“breach of data and telephonic confidentiality” in the case brought by the President
(Exhibit E, above). He affirmed that Moro displayed lawless behaviour on two
grounds – (1) his refusal to obey the law that required him to forward the intercepts of
the President’s conversation to the Federal Supreme Court (committing “usurpation of
jurisdiction”), and (2) his unlawful decision to disclose the President’s private
conversation to the media. (See judgment, Exhibit E, paragraphs. 7, 9 &11). In his
second finding, he totally rejected Moro’s ‘national interest’ defence, which was no
defence to a deliberate breach of the law. The Supreme Court rejected Moro’s reliance
on US v Nixon as “an example to be followed” because “this court’s judicial
precedents are categorical regarding the infeasibility of using evidence gathered
without due compliance with fundamental constitutional rights.” Moro apologised,
but in grudging and limited terms (“I understand that (my) reasoning would be
considered incorrect or if correct could have brought unnecessary polemics or embarrassment”). Moro’s decision, actually delivered on March 17th 2016, was
19

“cancelled forthwith” by the Supreme Court, but the damage had been done to Lula
and Moro will suffer no consequences for his illegal actions.
36. When observing an act that may constitute a crime, the Federal Supreme Court should
have submitted a copy of the case to the Federal Attorney’s Office for legal measures,
pursuant to Article 40 of the Code of Criminal Procedure:
Art. 40.  When judges or courts verify in records and documents which are known to
them the existence of a public action crime, they shall send to the Federal Attorney’s
Office the copies and documents needed to file a charge
But this has not occurred, and such act went unpunished. The Courts’ audit body, the
National Court Council (CNJ – Conselho Nacional de Justiça), shelved several
complaints against judge Moro, filed by citizens who were outraged by his act.
37. Moreover, the case related only to the release of the wiretaps of Lula’s conversations
with the President, and not to Moro’s release of the other intercepts. These remain
valid, and Moro himself, after the proceedings returned to him from the Supreme
Court, ordered that these intercepts be used in the investigations and potential legal
actions.
38. Judge Moro should have known he was acting unlawfully, not only by disclosing the
transcript of the unlawfully intercepted conversations with the President, but also by
disclosing to the media the other intercepted conversations. Not only is the law clear,
but Brazil has recently been condemned by the Inter-American Court of Human
Rights for allowing the disclosure of secret recordings of a personal nature: see Escher v Brazil.11 This case has direct parallels with the present, and the Court’s
decision emphasises the rule that a judge who authorises the secret interception of an
individual’s telephone cannot, for political or any other purposes, self-authorise
disclosure of the transcripts to the media. It is extraordinary that no action has been
taken against Judge Moro for these actions: the seems to enjoy impunity. It would be
possible for the Government of Brazil itself to file an Action of Recourse, to remove
Judge Moro from any case involving Lula, and his proven misconduct requires that it
do so. However, Moro’s publicity campaign and media support seems to have
intimidated the responsible organs of state from doing their duty to protect those in
position of the complainant, namely as a suspect of a formally opened investigation,

11 Escher v Brazil, Inter-American Court of Human Rights 6th July 2009
20

from suffering his illegal attacks on their honour and reputation, as a prelude to his
decision to have them arrested and convicted.
Complaint 3: Article 17 – Telephone Intercept of Complainant’s Lawyer
39. Judge Moro has gone to extremes to harass and embarrass the complainant, and this
includes tapping the telephone of his lawyer and releasing transcripts and even the
audio version to the media. As a judge, Moro knows the confidentiality which in law
attaches to communications between an individual client and his lawyer. As the judge
investigating Lula, Moro would know that the distinguished attorney Roberto Teixeira
(and the firm Teixeira, Martins & Advogados, of which he is a partner) has been
Lula’s personal lawyer for over 30 years. It must be assumed that as a first instance
judge, Moro was well aware of the law relating to telephone intercepts, which may
only be ordered “in the case of evidence in a criminal investigation” if “there are
reasonable indications that the relevant party committed a crime or participated in a
criminal violation” and it is not possible to “produce evidence by other means” in
relation to a crime likely to carry a prison sentence (see Article 2, Law No.9, 296/96).
40. Despite this knowledge, Moro approved the tapping of several conversations between Lula and Roberto Teixeira. On 26th February 2016 he specifically authorised an
intercept on the central extension of Teixeira’s law firm (affecting 25 lawyers and 300
clients). When this order was lifted in March, Moro tried to excuse his authorisation:
“Despite him (Teixeira) being a lawyer, I did not identify with clarity the lawyer/client
relationship to be preserved between the former President” because Teixeira’s name
was not in one of the files objecting to a search warrant. This was disingenuous – (a)
because his name was in all other files and (b) because the lawyer who was nominated
in the particular file was Teixeira’s partner.
41.  The only other basis on which he justified his decision to approve tapping the
telephone of the lawyer and his firm was that there was evidence of Teixeira’s
involvement in the purchase of a property at Atibaia, where Lula was suspected of
being the real owner and having some favours done by property cartel members, “so
he is an investigated person and not properly his lawyer.” This is a false distinction.
Teixeira at all times remained Lula’s lawyer. The only situation in which he could
lose his legal privilege to advise his client in confidence was if he was reasonably
suspected of involvement in a serious crime. There could be no such suspicion
21

deriving from involvement as a lawyer in a property purchase, unless the transaction
itself was fraudulent or illegal, and no such evidence existed and nor did it emerge
from the transcripts of the intercepted calls. Nonetheless, Moro authorised a selective
release to the media of the conversations between Lula and Teixeira, covering the
lawyer’s advice to his client about various aspects of the client’s problems with Moro.
In other words, this judge who opens an investigation of the complainant then
authorises the interception of telephone calls with his lawyer concerning advice about
the judge and the investigation: the clearest breach of attorney-client privilege.
42. Judge Moro’s behaviour has been condemned by the Brazilian Bar Association. The
Federal Council of the Brazilian Bar Association filed a petition with the Federal
Supreme Court stating that Moro lied when he said he did not know the attorneys had
been wire-tapped. They affirmed that Moro had with him the documents furnished by
the telephone company which confirmed that the tapped phones corresponded to the
personal cell phone of attorney Roberto Teixeira and the central extension line of the
law firm Teixeira, Martins & Advogados. The Federal Council also stated: “One
cannot allow the tapping of the attorneys’ telephones to find out if their clients are
involved in a crime or not. The reason for this is there has not been any proof of
concrete elements that allow for the order of the breach of secrecy of the attorneys’
telephones, and we emphasize that Art. 5, XII of CR and L. 9,296/06 set forth that
telephone tapping is an exception, while the federal legislation provides for the
possibility of invalidating a recording that is of no interest to a case.” Its Rio de
Janeiro chapter described it as “a typical act of police states” and an attack on
democracy (“The ends do not justify the means”).
43. The Association called for Moro to be reprimanded for authorising the tapping and
releasing the transcripts, but this has not happened because neither lawyer nor client
have an effective remedy. Twice before, Moro has been censured by the Federal
Supreme Court for breaching attorney-client privilege by authorising such intercepts,
but the disciplinary body, the National Court Council (CNJ – Conselho Nacional de
Justiça), as previously mentioned, has taken no action. Neither has the Federal
Attorney’s Office. As the HRC has said, in Pratt and Morgan v Jamaica;


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