BACKGROUND BRIEFING ON THE VIOLATIONS OF FORMER PRESIDENT LUIZ INÁCIO LULA DA SILVA’S DUE PROCESS RIGHTS
I – Introduction
As former President Luiz Inácio Lula da Silva’s attorneys, we are very grateful, for the letter sent by Members of Congress to the Brazilian Ambassador Sergio Silva do Amaral highlighting deep concern about the state of democracy and human rights in Brazil. The letter also makes explicit and accurate reference to “the violations of former President Luiz Inácio Lula da Silva’s due process rights” and to the “persecution of former President Lula da Silva” in ways that violate international treaty obligations, such as those stipulated under the International Covenant on Civil and Political Rights (ICCPR), guaranteeing basic due process rights to all individuals”.
II – Facts
The lawfare and violations to the fundamental rights and guarantees of the former President
Since March 2016, the former President Lula has been a direct victim of several arbitrary and unlawful acts by Judge Sergio Moro and other public officials that are all part of the so-called “Operation Car Wash”. We believe that these officials are performing “lawfare” against Lula whereby they use law and legal proceedings as a way of promoting an obvious persecution of the former President, with the aim of jeopardizing and disabling him politically.
Currently, Lula is the most popular political leader in Brazil, and according to recent opinion polls, he appears to be the leading candidate ahead of the Brazil’s next presidential election in 2018.
The letter sent by Members of Congress mentions several unlawful acts by Judge Sérgio Moro against former President Lula in the scope of “Operation Car Wash”, such as:
the deprivation of his liberty for approximately 6 hours on March 4, 2016, through a bench warrant, to hear a testimony that he has never refused to give, clearly breaching the requirements provided for in article 260 of the Brazilian Code of Criminal Procedure1;
the interception of his private telephone calls within the period of 02/19/2016 to 03/16/2016, including the ones to his attorneys, which violates the Federal Constitution and the article 7th, item II, of Law no. 8,906/19942;
the leaking of transcripts and audio recordings of those private telephone calls on March 16, 2016, contrary to articles 8th and 10th of Law no. 9,296/1996
Additional unlawful acts were performed by Judge Sérgio Moro against de former President Lula in the above mentioned period and in the scope of the cited operation including:
the authorization, on March 4th, to carry out search and seizure in Lula’s home and office, and also in all of his children’s homes, without complying with the requirement of “substantiated suspicion” provided for in article 2403, §2nd, of the Brazilian Code of Criminal Procedure;
the formulation of 12 charges against Lula to the Federal Supreme Court, under the pretext of explaining the leaking of Lula’s private telephone calls, acting as Prosecutor and not as a Judge.
The jurisdiction to judge
On March 22, 2016, the Federal Supreme Court called for all the investigation proceedings conducted by Judge Sérgio Moro that involved the former President Lula, to be handed over to the Court. This was because he usurped the Court’s jurisdiction when he intercepted and leaked the telephone call between the former President and then President Dilma Rousseff. At this time, we requested that all those unlawful acts performed against Lula be acknowledged, with the restitution of the status quo ante of the lawsuit filed against him. However, on June 13, 2016 the Federal Supreme Court acknowledged only the unlawfulness of the interception and the leaking of conversation between Lula and Rousseff, forwarding our other requests to Judge Sérgio Moro for him to assess them himself.
In other words, even after the case reached the Federal Supreme Court, no effective measure has been taken to stop the violations against the fundamental rights of former President Lula. On the contrary, the criminal actions unduly filed against him, were returned to Judge Sérgio Moro for his supervision and trial, even after he had clearly performed several unlawful and arbitrary acts against the former President.
Since then, the investigations that the Federal Police and the Federal Attorney’s Office insisted on pursuing against Lula were returned to Judge Sérgio Moro at the 13th Federal Court of Curitiba. Since then, as you rightly observed in your letter, the judge has not attempted to demonstrate even a minimal degree of impartiality.
The partiality of the judge
Moro has attended many public events with the presence of politicians and even candidates who are opposed to Lula, as is the case of Brazilian Social Democracy Party members (PSDB, acronym in Portuguese). For instance, he attended three events held by company of Mr. João Dória Júnior, current mayor of the city of São Paulo, when the latter was already running for the office by the PSDB. During those events, Moro was asked, publicly, by Dória himself, when he would “arrest” Lula. Moro attended other events conducted by PSDB politicians. In one of the events, held on December 6, 2016, he let himself be photographed in a very compromising situation with Senator Aécio Neves, also of PSDB. This photograph was widely publicized by the press.
These and other actions show that Judge Sérgio Moro, in addition to being biased towards Lula, does not even care to convey an “appearance of impartiality”. In this regard, he insists on being the judge of Lula’s trials, thereby continuing with the already mentioned act of “lawfare”. One of the lawsuits was announced by a group of prosecuting attorneys in a press conference broadcast by several national radio and television stations, where Lula was branded “commander” and “general” of the crimes that were being investigated by the “Operation Car Wash”, before even being considered for a trial. The prosecuting attorneys acknowledged that they did not have evidence against Lula; the accusation was based entirely on “assumptions” made by the public officials involved.
Judge Sérgio Moro and the Prosecutors of Operation Car Wash are being criminally and/or civilly sued by former President Lula due to the unlawful acts they have performed.
Violations to the International Covenant on Civil and Political Rights
In view of these facts, Lula will never receive a fair and impartial trial conducted by Judge Sérgio Moro. Therefore, as mentioned in your letter, we submitted a petition to the United Nations Human Rights Committee in July of 2016, highlighting the violation of three provisions of the International Covenant on Civil and Political Rights (ICCPR). The violated articles were: (i) Article 9 (1) and (4)4, which ensures protection against arbitrary arrest or detention; (ii) Article 14 (1) and (2)5, which ensures the right to be presumed innocent until proven guilty by law and, also, the right to an independent and impartial tribunal; (iii) Article 176, which ensures protection against arbitrary or illegal interferences in privacy, family, home or correspondence and against unlawful offense of honor and reputation.
We are waiting for a decision of the United Nations Human Rights Committee (UNHRC) on the admissibility of the petition. The Brazilian government has submitted information on January 27th. We will keep you informed about the progress of this case.
In the meantime, the violations against Lula’s rights persist and only seem to grow in volume. At this point, it is worth mentioning that the 4th Regional Federal Court, which decides the appeals from the “Operation Car Wash”, recently decided that this case is not subject to the “general rules”, that is, to its own legislation (Administrative Proceeding Special Court no. 00033021-32.2016.4.04.8000/RS). We believe that that this amounts to denying the application of the rule of law in a democratic manner.
The current status of the lawsuits
Since November 21, 2016 several hearings have been conducted before the 13th Federal Criminal Court of Curitiba to hear 27 witnesses, which the Federal Attorney’s Office summoned during one of the lawsuits filed against Lula. None of those witnesses – including the key informers of the “Operation Car Wash” – confirmed the prosecution’s hypothesis. On the contrary, the prosecution witnesses provided plenty of evidence showing that Lula did not commit the crimes he was charged with. If anything, the proceedings targeting Lula have only further confirmed his innocence.
In the last hearing held on (12/16/2016), Judge Sérgio Moro allowed a witness to insult Lula and one of his lawyers with names such as “garbage”. As if this weren’t enough, Moro went as far as to thank the witness for his rude and disrespectful comments. Those sections of the testimony were made available in the electronic system of Justice and, subsequently, were broadcast via radio and television nationwide.
On February 9, 2017, the 13th Federal Criminal Court of Curitiba will begin to hear the witnesses summoned by the defense. This will be practically the only evidence granted on behalf of Lula. Judge Sérgio Moro denied all the expert evidences requested by the former President’s defense lawyers in order to demonstrate, for instance, that he has never received any amount originating from allegedly embezzled money from Petrobras. In fact, in the scope of the Operation Car Wash so far, no expert evidence has been produced in order to effectively analyze if there has been the embezzlement of money from Petrobras and, if so, who the actual beneficiaries would be. This situation reveals that it is not a matter of the real facts, but an attempt to politically persecute former President Lula via legal means.
Informal or Illegal Cooperation between the Carwash Operation and US Officials
Furthermore, we are deeply concerned that the Carwash Operation Task Force, with Judge Moro´s knowledge, consent and help, has engaged in informal cooperation with members of the FBI and US Department of Justice, without going through Brazil´s Ministry of Justice, which directly violates the 1997 Treaty between the governments of the U.S. and Brazil on Mutual Legal Assistance in criminal matters. The existence of this informal cooperation was revealed to us in the course of Operation Car Wash hearings related to President Lula.
The aforementioned has even been confirmed by the British Broadcasting Corporation (BBC) reporting the presence of US officials in Brazil collaborating with the “Operation Car Wash” (http://www.bbc.com/portuguese/brasil-38172725).
The Honorable Brazilian Supreme Court Justice Teori Zavascki sadly and unexpectedly passed away this month. He was the judge presiding over all the “Operation Carwash” issues at the Supreme Court. The few rulings that acknowledged that Judge Sérgio Moro was violating basic constitutional rights and principles were issued by him. Thus, his death reduces significantly any expectation of having that the unlawful behavior of Judge Moro described above will cease.
III – Conclusion
This brief summary of the facts shows that the concerns expressed in your letter are indeed an accurate reflection of the current reality in Brazil and that some Brazilian public officials are engaging in politically motivated opposition to former president Lula through his persecution. In light of this and given the reports of U.S. government involvement in this case, we are at your disposal for any further clarification that you may need.
1 Art. 260. In case the accused does not answer to a summon to be interrogated, for recognition, or for any other act that without him cannot be fulfilled, the authority may order that he is conducted to his presence. Sole paragraph. The warrant shall contain, besides the order, the requirements stated in art. 352, as applicable.
2 Article 7th – Rights of the lawyer: (…) II – the inviolability of the lawyer’s office or workplace, as well as his working instruments, correspondence – written, electronic, telephone, and telematics – provided that they are related to the exercise of advocacy;
3 Art. 240. Search will be either a house arrest or a stop-and-frisk. (…) Paragraph 2. A stop and search will apply when there is a well-founded suspicion that one conceals an illegal gun or objects mentioned in letters b to f and letter h of the preceding paragraph.
4 ICCPR. Article 9. (1). Everyone has the right to liberty and security of person. 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 procedure as are established by law. (4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5 ICCPR. Article 14. (1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. (2). Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
6 ICCPR. Article 17.(1). No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.