The Process

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JOSÉ ROBERTO BATOCHIO

ADVOGADOS ASSOCIADOS

HONORABLE CHAIRMAN JUSTICE OF THE REGIONAL FEDERAL APPELATE COURT OF THE 4TH REGION.

Habeas Corpus. Judge who is conducting the cause and conducting the evidentiary stage lost the necessary impartiality. Null lawsuit. Applicability of writ (Code of Criminal Procedure – CPP, Article 648, II). Pre-constituted evidence of bias, which is embodied in the following acts: (i) granting of bench warrant without legal provision (CPP, article 260), depriving the First Arrestee of his freedom for about 6 hours; (ii) Authorization of search and seizure without the compliance with article 240 and following of the cpp; (iii) Authorization for telephone wiretapping and disclosure of the contents, including conversation captured after the interruption of the wiretap order and its illegal disclosure; (iv) Illegal anticipation of value judgment upon receipt of the complaint; (v) Conduction of evidentiary hearings demonstrating partiality and enmity towards the Arrestees, even allowing the latter to be cursed; (vi) Continuous participation of the judge in events with political agents manifestly antagonistic to the First Arrestee; (vii) Political manifestations of the Judge. Necessary grant of writ

CRISTIANO ZANIN MARTINS, Brazilian, married, attorney-at-law registered with OAB/SP [Brazilian Bar Association / São Paulo Chapter] under No. 172,730; ROBERTO TEIXEIRA, Brazilian, married, attorney-at-law registered with OAB/SP [Brazilian Bar Association / São Paulo Chapter], under No. 22,823, both with office at Rua Padre João Manoel, No. 755, 19 floor, Jardim Paulista, CEP [Zip Code] 01411-001, São Paulo/SP; and JOSÉ ROBERTO BATOCHIO, Brazilian, married, attorney-at-law registered with OAB/SP [Brazilian Bar Association / São Paulo Chapter] under No. 20,685, with office at Avenida Paulista, 1471, 16 floor, suite 1614/1619, São Paulo/SP, and JUAREZ CIRINO DOS SANTOS, attorney-at-law registered with OAB/PR [Brazilian Bar Association / Paraná Chapter] under No. 3,374, with office at Av. Cândido de Abreu, No. 651 – 1st floor – Centro Cívico, Curitiba/PR, respectfully comes before Your Honor to, as provided on article 5th, LXVIII and 105, I, “c”, from the Federal Constitution, on articles 647, 648, item I, of the Code of Criminal Procedure, to file this

WRIT OF HABEAS CORPUS

in favor of LUIZ INÁCIO LULA DA SILVA, Brazilian, married, bearer of the identity card RG No. 4.343.648, enrolled with the general taxpayer registry CPF/MF under No. 070.680.938-68, resident and domiciled at Av. Francisco Prestes Maia, No. 1.501, bloco 01, apartment 122, Bairro Santa Terezinha, São Bernardo do Campo (SP) and MARISA LETICIA LULA DA SILVA, Brazilian, married, bearer of the identity card RG No. 6.481.443, enrolled with the general taxpayer registry CPF/MF under No. 218.950.438-40, resident and domiciled at Av. Francisco Prestes Maia, nº 1.501, bloco 01, apartment 122, Bairro Santa Terezinha, São Bernardo do Campo (SP), against unlawful act issued in case records No. 5046512-94.2016.4.04.7000/PR, configuring criminal coercion of the Arrestees, for the following reasons

I –

APPLICABILITY

For the specific protection of the constitutional guarantee inscribed in article 5, LXVIII of the Constitution, the habeas corpus is an action for a writ of mandamus that aims at the protection of the right of locomotion against acts that suffer of a legal defect.

The Constitution is clear when stablishing the applicability of this remedy “whenever a person suffers or is in danger of suffering violence or coercion against his freedom of locomotion, on account of illegal actions or abuse of power.”

In this case, it will be clear that the scenario drawn in the records is predicted and fits the provisions of article 647 and item VI of article 648 of the Code of Criminal Procedure, as follows:

Art. 647. Habeas corpus shall be granted whenever someone suffers or believes they are about to suffer violence or criminal coercion of their freedom to come and go, except in cases of disciplinary punishment.

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Art. 648.  The coercion shall be deemed illegal:

VI – when the case was manifestly void.

Regarding the two forms of violence and illegality the substantial doctrine of AURY LOPES JR. is pertinent, for whom 1

The coercion is illegal when it does not have a legitimate legal support, when it does not have a motive (…)If there is no factual support – tatbestand – for the incidence of the legal rule of criminal or private law (civil prison for child support debt), there is no just cause. The factual support contained in the imputation or criminal action that justifies the act must be supported by reasonable evidence”.

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The causes of extinction of punishability are provided in art. 107 of the CP and in special laws. When present, they withdraw the punitive power of the State, and, as a result of the necessity principle, there being no punitive power to be recognized in the sentence, no state action is legitimized (…)

On the other hand, it is justified to place this heroic remedy in the presence of numerous situations, with already pre-constituted evidence, in which they fully attest to the total loss of impartiality by the Hon. Judge of the 13th Federal Court of Curitiba, Dr. Sérgio Fernando Moro – in addition to the manifest lack of jurisdiction of that judicial body.

It is necessary to record, right away, that part of the violence brought forward in this writ has already been denounced in motions to recuse and of lack of jurisdiction filed by the Arrestees against that Court, which are still pending judgment.

That is, the nullity of this suit, in view of its conduction by a biased judge is evident but has not been aknowledged in the motions previously filed. The objection to venue was rejected by the court despite being solidly grounded and demonstrated.

Thus, in view of the persistence of the criminal coercion inflicted on the Arrestees and, considering that the Criminal Prossecution No. 5046512-94.2016.4.04.7000 is being processed under the chairmanship of an absolutely suspicious authority and devoid of territorial jurisdiction, the procedural possibility of challenging said illegalities by means of Habeas Corpus emerges, in accordance with settled precedents of our higher courts:

As reported, this habeas corpus seeks, in summary, the recognition of the nullity of the acts practiced in criminal proceedings by a reputed suspect magistrate, as well as the reassignment of the deed to its legal substitute. According to the record, the Arrestee was charged with the alleged practice of the offense provided in article 155, § 4º, item II, of the Penal Code, the case being prosecuted before the 2nd Criminal Court of São João Del Rei/MG. Since he understood that the Judge responsible for the aforementioned Court was suspicious to preside over the criminal action brought against the Arrestee, the defense objected to a plea of criminal suspicion, which was rejected in a judgment that received the following syllabus: “SYLLABUS: PLEA OF CRIMINAL SUSPICION – HYPOTHESIS NOT PROVIDED IN ART. 254 OF THE CODE OF CRIMINAL PROCEDURE – IN ANY WAY, INEXISTENCE OF BIAS – PLEA DISMISSED.” (e-STJ fl. 13).

From all that is contained in the records, the filing must be received”. (Superior Court of Justice – STJ, 5th Panel, HC 172.819/MG, Reporting Judge. Jorge Mussi, J. 04.16.2012) (our remarks)

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HABEAS CORPUS. EMBEZZLEMENT AND CONSPIRACY. INEXISTANCE OF OFFENSE TO UNION GOODS, SERVICES OR INTEREST. LACK OF JURISDICTION OF THE FEDERAL JUSTICE. EX OFFICIO ORDER. 1. From the reading of the information, no typical conduct attributed to the Arrestee can be extracted capable of justifying the maintenance of the jurisdiction with the Federal Justice to prosecute and judge the criminal action. 2. Arrestee was charged only with the participating in the registration of “ghost public servants” on the payroll of the Legislative Assembly of the State of Paraná and of receiving a portion of the respective wages, not to be inferred, therefore, any of the events provided for in article 109 of the Federal Constitution that would justify the maintenance criminal action before the Regional Federal Court of the 4th Region. 3. Order granted ex officio to declare the lack of jurisdiction of the Federal Justice to prosecute and judge the criminal action, declaring void all the decisions rendered since the receipt of the complaint, including, determining the referral of the case to the Court of Appeals of the State of Paraná, thus rendering the initial claim deffective”. (Superior Court of Justice – STJ,5th Panel, HC 111.091/PR, Reporting Judge Jorge Mussi, J. 03.31.2012) (our remarks)

Therefore, this writ of mandamus has been demonstrated in order to cease the criminal coercion suffered by the Arrestees.

II –

SUMMARY OF FACTS

As it is public and notorious, the “Operation car wash” is underway, which covers a wide range of investigative procedures and criminal actions, as well as has the purpose of investigating alleged criminal practices perpetrated against PETROBRAS and its possible unfolding. In this context, the First Arrestee had its name – unduly – mentioned in the diligences related to the 24th phase of this Operation, which started on 03.04.2016. From this milestone, a number of allegedly connected procedures, which even had the same object, were established with the aim of continuing the investigative work.

On 09.14.2016, the Federal Attorney’s Office filed an information against the Arrestees, ascribing to the First Arrestee The practice of crimes of passive corruption, in an increased manner and three times (art. 317, caput and §1º, combined with art. 327, § 2º, all from the Penal Code), money laundering (art. 1º combined with art. 1, 4, of Law No. 9.613/98) three times as well and, finally, money laundering, 61 times and as a continuous crime (art. 1 combined with art. 1, § 4, of Law No. 9.613/98 and 71 of the Penal Code). The Second Arrestee was accused of, three times, conducts that would define the crime of money laundering (art. 1 combined with art. 1, 4, of Law No. 9.613/98) (doc. 01).

The initial accusation is abundant with confusion and the narration of the facts contained therein is full of incongruences. It is certain that, on the pretext of a “contextualization”, it enters a path of lack of technical ground and of untruths – ascribing to the First Arrestee the role of “general” of the criminal ploy that would have infiltrated Petrobras. Without any supporting evidence/indication and lacking jurisdiction of the subscribers of the petition to deal with this matter (as it affects the Federal Supreme Court), a defect that was not unnoticed by the decision to receive it, rendered initio litis.

On the contrary, this factual mismatch of the complaint was also detected by the court, which, on 09.20.2016, instead of rejecting it, attempted – unsuccessfully – to minimize it, as is shown in the section below:

The Federal Attorney’s Office also cites the statements of criminal collaborators, specifically the former federal congressmen Pedro da Silva Correia de Oliveira Andrade Neto and Delcídio Gomez do Amaral, in the sense that the former president had knowledge of and intentionally participated of the criminal scheme.

Of course, such evidence is questionable, but at this preliminary stage no conclusion is required as to the presence of criminal liability, but only probable cause.

Despite the arguments set out in the first part of the complaint, the Federal Attorney’s Office did not impute, contrary to what would be expected in the narrative, to the former President the crime of criminal association.

The omission has a probable cause, since this fact is pending before the Federal Supreme Court (Police Investigation 3989), since the alleged association would also involve agents that have a jurisdictional prerogative and in relation to the former President there would have been no dismemberment regarding this crime.

The facts, however, were not described gratuitously, being necessary for the characterization of the material advantages supposedly granted by the OAS Group to the ex-President as bribes in crimes of corruption and not mere gifts.

It is crucial to specify that the Complaint serves, mainly, to ascribe the First Arrestee – without any empirical basis, but only based on the “beliefs” of its signatories — as the “commander of the criminal ploy” structured in the scope of Petrobras to the detriment of the Federal Public Administration, in which it would have received an unfair advantage, through OAS EMPREENDIMENTOS, embodied in the apartment 164-A of the Solaris Building, (ii) the renovations and improvements carried out on said apartment unit through TALLENTO CONSTRUTORA, KITCHENS COZINHAS E DECORACOES LTDA. and FAST SHOP S.A and, finally, the maintenance and storage of the presidential collection, in consideration for alleged governmental benefits granted to the OAS Group, so they would benefit the CONPAR CONSORTIUM (contracted by PETROBRAS for the undertaking the construction work of “ISBL da Carteira de Gasolina e UGHE HDT de instáveis da Carteira de Coque” of the Getúlio Vargas Refinery – REPAR and for the RNEST/CONEST CONSORTIUM, contracted by PETROBRAS for the implementation of the UHDT´s and UGH´s of the Abreu e Lima Refinery – RNEST, and for the implementation of the UDA´s of the Abreu e Lima Refinery – RNEST.).

It should be noted that, even at the first and most perfunctory examination, the indictments filed by the Federal Attorney’s Office in the accusatory examination do not have factual support nor legal / probationary support, but the complaint was received by the Hon. Judge of the 13th Federal Court of Curitiba as a clear political persecution of the First Arrestee.

It should be noted that, although there is an attempt, more than forced, on the part of the prosecution to relate the facts discussed here with a complaint previously offered against others in the context of the Operation car wash, the version described in the complaint regarding the Arrestees materially dissociates from any aspect of the “Operation car wash” and its central theme, and, furthermore, are territorially separated, since all the facts indicated took place in the State of São Paulo.

Furthermore, in the course of the Criminal Action No. 5046512-94.2016.4.04.7000, the Hon. Judge of the 13th Federal Court of Curitiba, State of Paraná, Sérgio Fernando Moro, started to demonstrate by means of actions and orders in the dockets of the aforementioned criminal action the notorious and clear bias of his judgement. Moreover, the natural judge for the cognition of the deed is not shown, unless it is assigned “national jurisdiction“, beyond the territorial limits of its real jurisdiction, establishing itself to be urbi et orbi.

Previously, due to the manifestations of the First Court or the so-called “Car Wash Task Force”, artificial references to the name of the First Arrestee were already made, making it clear from the outset that he was the target elected by the Federal Police persecutors, the FEDERAL ATTORNEY’S OFFICE and (why not to declare) sectors of the Judiciary – in a clear and condemnable use of the criminal law of the petitioner and not of the criminal law of fact: the First Arrestee was elected and from that point on, successive efforts to construct evidence that could lead to the identification of the practice of a crime (which never occurred) took place.

From the significant and clear history and the endless succession of public acts, unnecessarily burdensome, practiced by the judge against the Arrestees in the course of these deeds, one can observe their evident loss of impartiality to judge the cause, at least in relation to them.

With effect, in spite of some merit that the Hon. Judge of the 13th Federal Court of Curitiba may have (if an “evil combatant” judge can be accepted instead of the equidistant and impartial judge) in actions directed to the fight against corruption, the “Operation Car Wash,” as it is known by all, has been making use of excessivly construed procedural arrests of a variety of natures, as a means of obtaining plea agreements, even with grossly unreasonable charges2 as well as impassively assisted selective leaks (of information always sympathetic to the prosecution) for the purpose of co-opting the public opinion and, above all, to try to tarnish the political image and reputation of the First Arrestee. These events have occurred dozens of times recently.

The legal bases supporting the grant of the requested order will then be demonstrated.

III –

FACTS DEMONSTRATING CRIMINAL COERCION

III.1 – Criminal coercion consubstantiated in the nullity of the suit – judge MANIFESTLY suspicious

The history of “Operation Car Wash” is marked by successive, unreasonable and endless extensions of the jurisdiction of the 13th Federal Criminal Court of Curitiba, associated with an undue suspension of the assignment of other cases, so that it he remains exclusively dedicated to the processes related to such Operation. A Judge of national territorial jurisdiction and just a single cause…

                                   Said operation is also characterized by several invasive acts that breached the involved parties’ constitutional guarantees, in addition to violating International Treaties and Conventions to which Brazil is a signatory – Which contain international rules that the country has been obliged to follow before the international community.

                                  The notoriety and fame achieved by Operation Car Wash, thanks to the – deontologically questionable – alliance with sectors of the press, is brazen in view of books already published and that had the attendance of the Hon. Judge of the 13th Federal Court of Curitiba himself in the respective releases, imposes on the latter virtually the obligation to defend the acts already carried out and the points of view published, including those that clearly configure excess and, especially, to defend the outcome already announced (or implied) to the general public, that, to all evidence, concerns the First Arrestee.

                                  Such a situation, in itself, indicates the judge’s loss of impartiality, who receives this unbelievable – and permanent – extension of jurisdiction. 

                                  These and other concrete facts, involving the Arrestee, leave no doubt about the suspicion now asserted. This is what will be demonstrated.

III.1.1Illegal Criminal Coercion of the Arrestee

On 03.04.2016, the First Arrestee – with his family–, was targeted by invasive measures determined by the coercer Judge (doc. 02).

In fact, the Hon. Judge of the 13th Federal Court of Curitiba, in the scope of the 24th phase of the “Operation car wash”, determined the search and seizure of goods and documents, not only at the domicilie of the Arrestees and its family members, but also at the headquarters of the Lula Institute and, moreover, at the São Bernardo do Campo Metalworkers Union. Also issued the bench warrant of the First Arrestee to testify, without there being any prior attempt to subpoena for such an act.

It is seen that there are always those who imagine there are no limits …

The media scandal that framed the police action on 03.04.2016 was clear by the fact that, at that time, some journalists were already aware of the diligence that would take place, in a clear selective leak of the action, so that the pressure of the media prevented any opposition to illegality. Commiting arbitrariness, but always with the popular applause, the Florentine Prince would say …

Almost two in the morning. A few hours to a morning that has everything be special, full of peace and love.” (1:49AM – March 4th 2016)

During the course of events, the coverage was no less intense, with the participation of national and international press vehicles3, and there was a deliberate and planned negative exposure of the image of First Arrestee.

The search and seizure (Docket No. 5006617-29.2016.4.04.7000 – doc. 03) was granted by the Hon. Judge of the 13th Federal Court of Curitiba with grounds that, in addition to being mistaken, shows clear anticipation of value judgement, as seen below:

(…)

(…)

(…)

(…)

(…)

In this context, the Federal Attorney’s Office questions, in its complaint, whether former President Luiz Inacio Lula da Silva would be unaware of these facts, since, in the period in which they occurred, he was, besides head of the Federal Public Administration and therefore responsible for giving the last word in Petrobras ‘political allotment, the beneficiary, at least indirectly, of the illicit financing of the Workers’ Party.

The question posed is complex and unworkable at the present time, prior to further investigation and defense.

In any case, I note that in the criminal scheme that victimized Petrobras, more recently, there have been some indications of the possible involvement of former President Luiz Inácio Lula da Silva.

(…)

In the complaint, the Federal Attorney’s Office raises suspicions about the payments made by contractors involved in the criminal scheme that victimized Petrobras for the Instituto Luiz Inácio Lula da Silva and for LILS Palestras, Eventos e Publicações Ltda., both controlled by the former President.

At the request of the Federal Attorney’s Office, I previously authorized the breach of the fiscal secrecy of the Lula Institute (decision of 12/07/2015, event 3, in the case 5055607-85.2015.4.04.7000) and of the company LILS Palestras, Eventos e Publicações Ltda . (Decision of 01/09/2015, event 3, in case 5035882-13.2015.4.04.7000)

(…)

It can not be concluded that these transfers are unlawful, but it must be acknowledged that these are high values for donations and lectures, which, in the context of Petrobras’ criminal scheme, raises doubts about the generosity of these companies and authorizes at least deepening the investigations.

(…)

Despite the suspicions regarding these payments, the most relevant evidences up to now are apparently related to the illicit receipt of favors by the former President of the contractors involved in the criminal scheme of Petrobras.

(…)

The apparent concealment of assets by the former President, the apartment and the country house, the reforms and acquisitions of goods and services, in large amounts, by contractors involved in the criminal scheme of Petrobras need to be investigated in depth. Also the last fact, the storage of assets of the former President, with significant costs borne by OAS, need to be better investigated.

(…)

Perhaps the deepening of the investigations might better clarify the former president’s relationship with contractors and the reasons for the apparent concealment of assets and the benefits borne by the contractors in relation to the two properties, as well as confirming or not the legality of the payments made by them to the Lula Institute and LILS.

There is, therefore, probable cause for the realization of the desired searches and seizures.”

The illegality and the bias of the decision hereinabove are crystal clear. The extreme measure was authorized based only on extraordinary hypotheses raised by the Federal Attorney’s Office and fully received, as they where true facts, by the defendant authority. The real estate registers had their authority to attest documents suspended by the Hon. Judge of the 13th Federal Court of Curitiba, since the properties are registered as owned by a third party But, as stated, not even the legal presumption of truth, juris et de jure, escapes the audacious and “tsunamic” persecution.

Worse, even worse, is the situation regarding the First Arrestee’s truculent bench warrant. An Ilicit intervention in his status libertatis!!

The First Arrestee was forcibly taken to the police to testify, by order of a bench warrant, with the consequent restraint of his liberty, without ever having addressed to him a single summons issued by the defendant authority (under the terms of Article 260, Of the Code of Criminal Procedure – and even in this hypothesis of a first non-compliance, the measure would already be quite questionable

The prosecution’s argument to support the — legally inexistent — bench warrant order (Dockets No. 5007401-06.2016.4.04.7000 – doc. 04) was the following:

In addition, nuances of the concrete case reveal that the bench warrant order to give testimony proves adequate for the preservation of public order, including considering the safety of the persons investigated, of the people and of the authorities responsible for collecting testimony.

It is notorious and indisputable that LULA is a political leader and because he has presided over the country for two terms, investigations of criminal acts allegedly carried out by him have generated popular demonstrations of all kinds, for and against the defendant.

(…)

121. Thus, if a new audience is designated by the FEDERAL ATTORNEY’S OFFICE or by the FEDERAL POLICE of the former President of the Republic in advance of the date of the act, the occurrence of confrontations between the public for and against LULA, with the need for use of force by the Military Police, may repeat itself.

(…)

Thus, for all that has been exposed, the bench warrant intended is adequate, aiming to avoid disturbing public order and ensuring social security.

It is not unknown that, even during the course of the hearing, there may be some social unrest. However, of course, there will be less possibility of great embarrassment with the absence of previous and widespread disclosure of the date and place of the hearings. Of course, with the normal functioning of the institutions, assessments in this and other cases will continue with or without social unrest. However, since public safety is a right and responsibility of all, prudence is necessary so that, in the exercise of the investigation, the risks to public safety are minimized..

(…)

In this way, the desired bench warrant is necessary, in order to allow the person under investigation to present their versions on the facts under investigation.

123. It should also be pointed out that the measure in question does not imply real restriction of freedom of movement, since it is directed only at the taking of testimony. Even with the bench warrant, the person being investigated retains the right to silence.

In this sense, it is proportional to the desired warrant,

Since, without restricting the freedom of movement completely, with the maintenance of the right to silence, and even in the face of strong evidence, it is sought to guarantee the existence of a specific moment for the investigated to present their own explanations about the facts.

124. The principle of opportunity also applies to the case, since the

Public manifestations of the investigated are not logically pertinent with the evidence collected. Formalizing the opportunity to provide information also represents the moment to record, in the context of the assessments, their own versions on the facts.”(our remarks)

It can be observed that the pretext of the ministerial request was the preservation of public order and – to our surprise – to avoid popular demonstrations and guarantee the safety of the First Arrestee. Such justification can only be understood as derision or irony

The grounds, therefore, are manifestly improper, since at all times the First Arrestee was called to testify – and always attended – it was the state agents who promoted the leakage of the details of place and time, a fact that seems to have been repeated In relation to the measure described herein.

It should be noted, before proceeding, that First Arrestee, prior to the legal violence in question, had been summoned in at least four (4) other opportunities to provide clarification and had always attended – and made public knowledge when there was no secrecy of justice imposed to the act.

In addition, postulating Arrestee’s deprivation of liberty in order to guarantee its safety evidences a more “boutade” than a serious grounding in the situation here dealt with.

As for the classification of the bench warrant as a kind of imprisonment (since it effectively deprives the person of the right of freedom), it is not an inventive creation of this technical defense. The fact is that there is no way not to classify this act of state power as a form of imprisonment, since the fundamental right to come and go is restrained, suppressed, and the person is kept in official custody for a certain period of time. It should not be disregarded that the First Arrestee was deprived of his physical freedom for a period of about six (6) hours, without any legal provision                                  

                                  In this respect, the doctrine of Professor TIAGO BOTTINO, which equates the bench warrant with temporary and preventive prisons, is more than timely.:

However, when treated as an autonomous protective measure, the bench warrant is similar, although less burdensome, to the temporary custody and the preventive custody. Its common nature lies in the use of force to displace a person and subject it to State authority. When used for the sole purpose or not of taking testimony, this precautionary measure reveals itself as a means of isolating the individual, even temporarily, from the outside world, creating an atmosphere of intimidation that weakens the autonomy and will of the individual. In this scenario of deprivation of liberty, even if provisional, a psychological state is created in which the exercise of the right to silence is purposely hampered4 (our remarks)

One should not even think about raising the hypothesis, as it was done in the aforementioned decision of 07.22.2016, which rejected the suspicion motion, in the sense that First Arrestee’s temporary arrest could have been determined, but the bench warrant was chosen for understanding it as less burdensome. Such a statement is completely misleading and illegal. Also because there was no request for temporary arrest against the First Arrestee addressed to the Hon. Judge of the 13th Federal Court of Curitiba.

Moreover, notwithstanding the totally inadequate grounding of depriving a person of freedom as a measure of preservation of “public order,” the Hon. Judge of the 13th Federal Court of Curitiba upheld the ministerial allegations (see document 02) , formulating a new and wrong value judgment, in order to determine:

(…)

(…)

Although the former President deserves all due respect for the dignity of his former position (without prejudice to the respect for any person), this does not mean that he is immune to the investigation, since there are justifications for it, as stated by the Federal Attorney’s Office and as sustained by the decision of 2/24/2016 (event 4) in case 5006617-29.2016.4.04.7000.

(…)

Taking the testimony by means of a bench warrant, the probability that something similar occurs is smaller, as these manifestations do not appear to be totally spontaneous.

(…)

With these observations, which are usually unnecessary, but are relevant in this case, I partially grant what was required by the Federal Attorney’s Office for the issuance of the bench warrant for the collection of the testimony of former President Luiz Inácio Lula da Silva.

Although the First Arrestee was conducted by bench warrant to the presence of the police authority, despite the curtailment of his freedom of movement, all the standard circus-mediatic spectacle was repeated, demonstrating that the concern of the Hon. Judge of the 13th Federal Court of Curitiba existed only on paper.

Pure sarcasm – or cynicism?

“Until when, in the end, will you abuse” … reminds the Tribune and Consul of Rome Marco Tulio Cicero to … Sérgio Lucio Catilina!

The images below speak for themselves, demonstrating that the First Arrestee’s bench warrant, especially under the terms of the decision, was a success.

A true spectacle, able to co-opt the public opinion for the purposes of the persecutors. As it can be seen below.

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First Arrestee at the Congonhas airport – SP after giving testimony by bench warrant.

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First Arrestee leaving the Worker’s Party headquarters in São Paulo on Friday, after making a statement on the operation of which he was targeted.

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Protesters at the Congonhas Airport in São Paulo during the execution of the bench warrant of the First Arrestee

It is evident that First Arrestee had his right to personal integrity – which includes physical, psychological, and moral integrity – violated by the arbitrary act of the Hon. Judge of the 13th Federal Court of Curitiba. It should be stated again: there is no legal provision for this form of deprivation of liberty imposed by the Hon. Judge of the 13th Federal Court of Curitiba to the First Arrestee

É ilegal, ilícita, essa prisão momentânea.

Such a situation seriously violates the American Convention on Human Rights and the International Covenant on Civil and Political Rights, both signed by Brazil, as can be seen in the following transcribed standards:

AMERICAN CONVENTION ON HUMAN RIGHTS (Decree No. 678/1992)

Article 7 Right to personal liberty

(..)

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

Article 11 – Right to Privacy

1. Everyone has the right to have his honor respected and his dignity recognized.

2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.(our emphasis)

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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (Decree No. 592/1992)

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.(our emphasis)

The abuse of power seems flagrant since the designs (whether endogenous or exogenous) of Hon. Judge of the 13th Federal Court of Curitiba seem to transcend the limits of the jurisdictional and refer to elements alien to the function, to the process, as aforementioned.

In this direction, the understanding published by the Illustrious Professor Celso Antônio Bandeira de Mello in an interview granted at the time:

In fact, it is not an evaluation but a legal verification: a gross illegality has been committed. One does not issue a bench warrant in the name of someone else, if the later does not refuse to testify. If it is a person who has never refused to testify; With a known location, that everyone knows where it is; If it is a public person as is the case of former President Lula, who always deposed when summoned, it makes no sense to issu a bench warrant.

A bench warrant is a violence, literally, in a case like this. This is a gross illegality. If we were in a state of law, whoever determined this illegality would obviously suffer a penalty for having exorbitated their jurisdiction.

In my opinion, it is applicable to the judge who ordered it. And also the Federal Attorney’s Office, because [the Federal Attorney’s Office] should not comply with a clearly illegal order. This is an illegal order, so the Federal Attorney’s Office should also be punished.

He [Sergio Moro] practiced an illegality. He and the Public Prosecutor’s Office. But this from the point of view of the law, but we are no longer in the Rule of Law. This is evident for me.  We are now in a ‘Police State’, where the press decides things and others do. And when the rule of law ends, anything can happen.

In my point of view, nothing relevant will happen because what should happen is the accountability of the judge for this illegality, and of the Federal Attorney’s Office for having complied with the illegal order. That should be the sequence of events from the point of view of the law. But the point of view of the law presupposes normality, and we are not living in a climate of normalcy, are we? I, at least, don’t think so”8.

The arbitrariness of the act was also recognized, before the press, by the Justice MARCO AURÉLIO DE MELLO, of the Federal Supreme Court, at that time:

I didn’t understand. A bench warrant, or, as it was said in the old days, warrant under a rod, must only be issued, to the citizen who resists and does not appear to testify. And Lula was not summoned. (…) Did he [Lula] want this protection? I believe that in fact this argument was given to justify an act of force (…) This is a setback, not progress. (…) We, judges, are not legislators, we are not vigilantes

Finally, the measures adopted and the actions outlined by Hon. Judge of the 13th Federal Court of Curitiba to the detriment of First Arrestee are clearly abusive, if not unlawful, violating fundamental guarantees and also International Treaties, jeopardizing the necessary impartiality of the judge.

III.1.2 – Arbitrary Ordering for Wiretapping

Not halting in face of any limit, the Hon. Judge of the 13th Federal Court of Curitiba also decided to intercept the telephone terminals used by the First Arrestee, by his relatives and collaborators (ref. Case Record No. 5006205-98.2016.4.04.7000 – doc. 05). The order was granted on February 2016, after the breach of the bank and tax confidentiality of the First Arrestee9 businesses, and prior to the search and seizure warranties.

But as provided by Law No. 9.296/96:

Article 2 – The interception of telephone communications shall not be permitted in the occurrence of any of the following:

I – There is no reasonable indication of authorship or participation in criminal offense;

II – evidence may be produced by other means(our remarks)

That is: the wiretapping was authorized in a context in which neither the search and seizure nor the personal testimony of the investigated person had been carried out, in complete distortion of the legislative exception to the constitutional guarantees of telephone confidentiality and protection of privacy.

In this respect, Gustavo Badaró:

The impossibility must be justified by demonstrating that the investigation is impossible of being carried out by other means, for example search and seizure, personal recognition, witnessing, obtaining records of telephone calls, etc. Obviously, it is not enough to repeat the terms of the law and state that the investigation could not be carried out by other means. It is necessary to indicate, concretely, why the reconstruction of the facts will be impossible without the telephone interception.10 (our remarks)

Analyzing the records of the wire-tapping procedure, with its acceptance, it can be seen that the Federal Attorney’s Office required the adoption of extremely serious measures WITHOUT associating the conduct of the First Arrestee with the description of any fumus comissi delicti.

So it is. There is no fact or conduct in the narrative presented by the Public Prosecutor’s Office, but only “possibility”, “indications or evidence” and “reasonable cause”. In fact, the Prosecutor himself states that “The use of goods registered in the name of third parties, per se, does not constitute illicit” and that “A priori, there is nothing illegal in giving lectures and being compensated for it, as well as official donations to entities with social purposes are perfectly legal and, similarly, consulting contracts are lawful” (doc. 06).

According to the legal criteria, wiretapping is only possible “for evidence in criminal investigation and in the evidentiary stage of the criminal procedure” (article 1, caput, Law No. 9.296/96) and ifthere are reasonable indications of authorship or participation in a criminal offense”, and (cumulatively!) if the evidence cannot be acquired by other available means”, as well as if the alleged criminal infraction does not prescribe, “at most, punishment of incarceration”. As provided in article 2 of Law No. 9.296/96.

But that is not the case in these proceedings.

In this track, it is noted that the Honorable Supreme Court Justice TEORI ZAVASCKI, in an injunction in the provisional remedy in Complaint No. 23.457 / PR, filed by the President of the Republic (doc. 07), acknowledged that the motivation of the Hon. Judge of the 13th Federal Court of Curitiba decisions that authorized the telephone interceptions in the “Operation car wash” were insufficient to justify the approval of those exceptional measures, given that they were “merely remissive” and had reproachable reach:

The examination of the file at the source reveals, however, although in summary cognition, a different reality. As recorded in the electronic procedure, the request for telephone interception of the Federal Attorney’s Office, on 02.17.2016, “in relation to persons associated with the former President of the Republic Luiz Inácio Lula da Silva (events 1 and 2)”, added on 02.18.2016, was granted on 02.19.2016 and had successive confirmatory and significantly amplifying acts, on 02.20.2016, 02.26.2016, 02.29.2016, 03.03.2016, 03.04.2016 and 03.07.2016, always with a merely remissive motivation, making it virtually impossible to control, even later, the interception of a number of telephone extensions.” (our remarks).

In this context, it is clear that the authorization to monitor the First Arrestee‘s telephone conversations – with later extensions – was a means of promoting a real unreasonable scrutiny of the Arrestees and their family members, which must be condemned, besides rendering the collected material fully defective.

In fact, it should be noted that said Complaint was judged (document 08), according to the decision made available on 06.13.2016, by which the late Supreme Court Justice Teori Zavascki settled the understanding that there had been illegality in the telephone interceptions carried out by the 13th Federal Criminal Court of Curitiba, Which annulled the events 135 and 140 of the Request for Breach of Data/Telephone Secrecy 5006205-98.2016.4.04.7000/PR. It is important to note that an appeal was filed, which is pending trial in the Supreme Court.

In the mentioned monocratic decision, the distinguished Supreme Court Justice Teori Zavascki acknowledged the usurpation of jurisdiction of the Federal Supreme Court by the 13th Federal Criminal Court of Curitiba, also informing two hypotheses for the illegality of the act. As seen below:

10. As seen, the decision handed down by the respondent Judge on 03.17.2016 (supporting document 4) is legally compromised, not only because of the usurpation of jurisdiction, but also, even more clearly, by the breach of secrecy of intercepted telephone conversations with the complainant and with other authorities with jurisdictional prerogative. (our remarks)

In another section, the Supreme Court Justice affirms the error made by the Hon. Judge of the 13th Federal Court of Curitiba not to refer the case to the Federal Supreme Court: “Nevertheless, not referring the case to this Court, the court determined the breach of confidentiality of the talks “(page 17 – doc. 08).

The final judgment corroborates all the arguments raised here, that, unequivocally, the Hon. Judge of the 13th Federal Court of Curitiba acts in a partial manner, with an evident interest in harming the First Arrestee, unable to respect rules of secrecy of justice and protection of personal or state data.

It should also be mentioned that the Hon. Judge of the 13th Federal Court of Curitiba also intercepted several conversations of First Arrestee with his lawyers. As an example, we can highlight the following illegally intercepted conversation (doc. 09):

LILS x ROBERTO TEIXEIRA

TARGET

INTERLOCUTOR

DATE/TIME

DURATION

SEQUENTIAL NUMBER

55(11)963843690

55(11)30603310

02/26/2016 – 17:23:32

00:02:44

80582239.WAV

SUMMARY

MORAES x MNI – Wants to speak with NILVA,

MORAES x NILVA – She says she is going to email him. Ask for MORAES’ email address <valmirmoraes.br@gmail.com>. She’ll send it to Mr. ROBERTO.

MORAES x Mr. ROBERTO – Transferring to LILS. He says he sent the documents to MORAES’ email.

LILS x Mr. ROBERTO – Says LILS won’t be able to meet JW. Says CRISTIANO was calling JW. ROBERTO says he doesn’t know if JW will be able to go to BRASILIA. LILS says JW was going to BRASILIA. LILS has spoken with CRISTIANO. CRISTIANO will call JW and say that JW needs to speak with “someone there, urgently. ROBERTO says that CRISTIANO is going to BRASILIA right now. LILS shouts and says CRISTIANO has to call him right away. They say goodbye to each other.

TRANSCRIPTION

(Transcription from 1min40s onwards)

LILS: Hey, ROBERTO!

ROBERTO: Hello.

LILS: Let me tell you something. There is no time for us to meet because I’m forty-five minutes away from

ROBERTO: Oh! They told me he was going to Salvador.

LILS: No, no. He is going to Brasilia.

ROBERTO: Oh, ok. Great.

LILS: He is going to Brasilia. And then I’ve spoken with CRISTIANO. He’s going to call him. And say he has to talk to someone there, that’s urgent.

ROBERTO: Perfect. Let’s do it like this, then: if you can, call him and tell him that CRIS is leaving. You can say that CRIS is leaving now and going to Brasilia.

LILS: No! But you need to call him right now.

ROBERTO: Right. You can speak. Ok.

LILS: Is that ok?

ROBERTO: Perfect.

LILS: Ok. Good bye.

ROBERTO: Ok. Good bye.

It’s important to note that the interception also focused on the telephone switchboard of one of the law firms responsible for the Arrestees defense, affecting the work of 25 lawyers — all with full knowledge of the Hon. Judge of the 13th Federal Court of Curitiba (demonstrated by two alerts from the telephone company responsible for the wiretap – doc. 10).

That means saying the Hon. Judge of the 13th Federal Court of Curitiba also promoted an attack on the Arrestees’ own right of technical defense.

It should be noted that the gravity of the decision to intercept telephone conversations between attorney and client is such that, in Spain, Judge BALTASAR GARZÓN was unanimously sentenced by the Spain Supreme Court in February 2012 to 11 (Eleven) years of suspension of the judgeship for having ordered the listening of conversations between lawyers and their clients (one of Spain’s biggest scandals)11. Crimen de jurisdición na Espanha.

In the United States of America, the gravity of this invasion is paramount. It violates the 5th Amendment, which is why the FBI, in the telephone interceptions it performs, immediately turns off the listening device when it perceives it to be between a lawyer and its client. Would the, extinct Patriot Act, now replaced by the USA Freedom Act, be in force among us?

Langley? Here?

It is noteworthy that the telephone interception between First Arrestee and his attorney, being arbitrary, illegal, and violating the prerogatives of lawyers, was harshly criticized by the legal community. 12.

The Federal Council of the Brazilian Bar Association itself filed a manifestation in the records of the Complaint No. 23.457 with the following contents — repudiating the attack made by the Hon. Judge of the 13th Federal Court of Curitiba to the defense:

The most serious problem, however, is that the interception capable of violating the prerogative of twenty-five (25) lawyers belonging to the aforementioned firm was authorized in a disguised manner, because said number was registered by the task force and deferred as if it belonged to the legal entity LILS Palestras, Eventos e Publicações Ltda. (Document 03, page 17)

(…)

The situation is so serious that, in the information gently forwarded to the Federal Council of the Brazilian Bar Association, the Federal Judge of the decision stated, expressly, that: ‘It is unknown to this Court that another one of his (Roberto Teixeira) terminals has been intercepted or a terminal extension of the law firm (Doc. 09, page 319).

It turns out that the telephone operator responsible for the telephone line of the law firm, in compliance with the dictates of Resolution No. 59/2008 of the National Council of Justice, informed the Court of the name of the real subscriber of the intercepted terminal; And did so twice, as evidenced by the annexed letters (Docs 12, pp. 310 and 314)”.

Without disrespecting anyone, but in the untouchable exercise of libertas convinciandi, we would like to remind that it is not the first time that the aforementioned court uses the reprehensible expedient of monitoring the defendants’ lawyers for the purpose of weakening the defense.

That is what the STF stated when judging Habeas Corpus nº 95.518 / PR, in which case it was verified that said legal officer of the Union was illegally monitoring the lawyers of the case. On that occasion, this unprecedented and unqualified expedient was awarded by the Supreme Court the following record:

THE SUPREME COURT JUSTICE GILMAR MENDES – I am asking you to send to the Regional Disciplinary Board of Federal Justice of the 4th. Region and to the Disciplinary Board of the National Council of Justice.

THE SUPREME COURT JUSTICE RICARDO LEWANDOWSKI – To the Disciplinary Board for the purpose of ascertaining this delay.

THE SUPREME COURT JUSTICE CARMEN LÚCIA (CHIEF JUSTICE) – The behavior.

THE SUPREME COURT JUSTICE GILMAR MENDES – These are very serious facts. For example, monitoring lawyers.

THE SUPREME COURT JUSTICE CARMEN LÚCIA (CHIEF JUSTICE) – Of lawyers’ movements.

THE SUPREME COURT JUSTICE CELSO DE MELLO: It seems to me, given the documents accompanying this petition and the sequence of events reported in this process, especially the very serious episode of monitoring the Arrestee’s lawyers, that would have occurred a serious offense to the judicial duty of impartiality, which would prove capable of characterizing transgression of the constitutional guarantee of the due process of law (our remarks)

It should also be pointed out that, as established in Complaint No. 23.357 / DF, the origin of the “Operation car wash” was also the result of an illegal interception of conversations between the lawyer and his clients in 200613.

In addition, in a very recent Supreme Court decision, Supreme Court Justice RICARDO LEWANDOWSKI, in the vein of HC 115.114, admitting the Federal Council of the Brazilian Bar Association as assistant to the petitioner, thus asserted about the illegal monitoring of conversations with lawyers:

“I emphasize that the Statute of Advocacy leaves no doubt that it is one of the rights of the lawyer to “communicate with his clients, personally and privately, even without power of attorney, when they find themselves arrested, detained or in civil or military establishments, even if deemed incommunicable” (Article 7, III, of Law 8.906/1994). This legal provision, as already mentioned, is supported on a constitutional basis, since the 1988 Federal Constitution states that “the attorney is indispensable to the administration of justice, and is inviolable for his acts and manifestations in the exercise of his profession, in the limits set by the law.” In fact, rather than constituting a right of the lawyer, such functional prerogatives have the reason of serving the citizen himself. The lawyer acts as a mere instrument in the formulation of the defense of his client, the later is the real recipient of the judicial service, having in the rules of procedure, especially in the criminal court, the safeguard of their fundamental rights and guarantees. It should also be pointed out that, at the international level, the Pact of San José de Costa Rica highlights as a judicial guarantee the right of the person accused criminally to “freely and privately communicate with his or her defense counsel” (…)” (our remarks)

It is seen that the case that gave rise to the habeas corpus in question deals with the monitoring of the contacts between prisoners and their visitors, including their lawyers, done at the Federal Penitentiary of Catanduvas / PR. According to the petition, this measure was deferred by the collegiate of the Criminal Execution Section of Catanduvas, whose composition, at the time, had Federal Judge Sérgio Moro, in this case the Hon. Judge of the 13th Federal Court of Curitiba.

In this case, it was not different with the First Arrestee. The violation of the right of defense, as recognized by the Federal Council of the Brazilian Bar Association itself, occurred on a large scale and in a disguised manner. The interception allowed the espionage, by the Hon. Judge of the 13th Federal Court of Curitiba, of the defense strategy formulated by attorney’s at- law, confirming that he lost the impartiality to judge the case.

Are we importing Langley?

III.1.3 – Wiretapping Secrecy Breach and Illegal Disclosure of Audio

As stated, as if the illegal telephone interceptions were not enough, the Hon. Judge of the 13th Federal Court of Curitiba also made public its contents (doc. 11) when he no longer had jurisdiction over the case. The fact has been confessed.

In this regard, the illustrious late Supreme Court Justice Teori Zavascki in his decision in the aforementioned Complaint No. 23.457 (cf. doc. 08), stating that said breach of secrecy was “incontinent, without any of the cautions required by law, configuring an act carried out in the midst of an “analysis that evidently was not within the jurisdiction of the trial judge.

That is: the Supreme Court Justice, in a decision ratified en banc by our Supreme Court and, further confirmed on the mertis, acknowledged the illegality of the breach of secrecy, as well as the lack of jurisdiction of Sérgio Moro for such an act – blatant lack of jurisdiction, which was ignored by the Judge due to his personal disposition against the First Arrestee.

Supreme Court Justice Teori Zavascki, goes on with regard to the attitude of the Hon. Judge of the 13th Federal Court of Curitiba and the damage done, especially to the First Arrestee::

There is no way, therefore, to devise the public disclosure of the conversations in the way they have been conducted, especially those that have nothing to do with the subject of the criminal investigation. Contrary to this express order, which, I say again, has a foundation of constitutional validity – the invocation of the public interest of the disclosure or the status of public persons of the interlocutors affected, as if those authorities or their interlocutors were totally unprotected in regards of their intimacy and privacy.

(…)

What is disputed is the public disclosure of intercepted conversations as they occurred, immediately, without regard to the fact that the evidence wasn’t even appropriate to its sole legitimate constitutional purpose (“for the purposes of criminal investigation or criminal procedure”), and not even subjected to the minimum adversarial procedure.

At this point, as it must be recognized, the practical effects arising from the undue disclosure of intercepted telephone conversations are irreversible (our remarks)

It should be noted that the Federal Supreme Court itself has already acknowledged that the arbitrariness of the Hon. Judge of the 13th Federal Court of Curitiba caused irreversible damage to the First Arrestee.

It should also be noted that the breach of secrecy of the interceptions occurred on 03/16/2016.

Two very relevant facts occurred on that same date:

(i) the Hon. Judge of the 13th Federal Court of Curitiba lost the jurisdiction to the Federal Supreme Court over the procedures in which the invasive measures hereinabove occurred, in view of the interception of a telephone call involving the President of the Republic at the time; and

(ii) the First Arrestee was appointed Minister of State as Chief of Staff of the Presidency of the Republic.

                                  In view of this, the selective disclosure of the intercepted conversations, in addition to being ordered by a judge lacking jurisdiction, was also aimed at subsidizing political protests and promoting social turmoil.

                                  By way of example, see the excerpts below:

Demonstrations against the government were registered across the country on Wednesday. At least 19 states and the Federal District saw demonstrations on Wednesday (16). The demonstrations were against Lula’s appointment for minister and asked for the resignation of President Rousseff”.

———————————————————————————————

“Demonstrations against the government of the President of the Republic, Dilma Rousseff (Worker’s Party – PT), the appointment of former President Lula as Chief of Staff and the PT took place on Wednesday (16) in at least 19 states (Acre, Alagoas, Amazonas, Bahia, Ceará, Espirito Santo, Goiás, Mato Grosso, Mato Grosso do Sul, Minas Geraes, Pará, Paraná, Pernambuco, Rio de Janeiro, Rondônia, Rio Grande do Norte, Rio Grande do Sul, Santa Catarina, São Paulo) and in the Federal District.

The protests were peaceful, with few isolated incidents. Most of the demonstrators wore green and yellow and took posters against former President Lula, the federal government and the PT. There were accounts of people banging pots and honking in several cities across the country.

The administration announced on Wednesday, in an official statement, the appointment of the former president, who is being investigated in the Operation Car Wash, to the position of Chief of Staff, in place of Jaques Wagner, who will be relocated to head the President Rousseff office staff.

The protesters were called, according to the organizers, after the announcement that former President Lula would be appointed Chief of Staff and the disclosure of the telephone wiretaps of talks of the former President with allies – among them, a dialogue with President Rousseff, which provoked immediate reaction in the political circles and on the streets14.”

Moreover, such illegal disclosure, which borders the criminal practice, subsidized judicial attacks by opposition political parties, who questioned in the Supreme Court the appointment of First Arrestee to the position of Chief of Staff..

For example, the Brazilian Social Democracy Party (PSDB), filed a Noncompliance Claim with a Fundamental Precept (ADPF) No. 39115, stating that:

Thus, the appointment of Luiz Inacio Lula da Silva to the position of Chief of Staff of the Presidency of the Republic, ulterior being an administrative decision based on the public interest, is first and foremost a measure aimed at removing the jurisdiction of a Judge as well as of the members of the Federal Attorney’s Office acting in the cause as natural prosecutors of the lawsuit.

By means of the decree of appointment, a “constitutional fraud” is being carried out, since the President of the Republic reaches unlawful ends by legal means, in true diversion of purpose, as it will be demonstrated below.

This ADPF is intended to attack the act of appointment of Mr Luiz Inácio Lula da Silva by the President of the Republic, Dilma Vana Rousseff, for the position Chief of Staff of the Presidency of the Republic. The act, as it is public knowledge, was practiced with the deliberate purpose of thwarting the criminal prosecution of the appointee, under investigation of the so-called Operation “Car Wash” and informed by the São Paulo State Attorney’s Office.

By means of the appointment, the President intended to guarantee to Mr. Luiz Inácio Lula da Silva jurisdictional prerogative with this Court (intending to apply the provisions of Article 102, I, “b”, of the 1988 Federal Constitution), based on the assessment that it was quite probable that he would be provisionally detained by the Federal Judge Sergio Moro, based on the steady set of evidence of the ongoing investigation and the line of understanding adopted by him throughout the course of the Operation “Car Wash”.(our remarks)

The Brazilian Socialist Party (PSB), stated on ADPF No. 39016:

The most striking of circumstances came from the telephone recordings authorized by the 13th Court of Curitiba under the “Car Wash Operation”, when President Rousseff expressly told former President Lula to use the term of appointment “in case of necessity”, that is, according to a judgement of special opportunity, in clear violation of the impersonality and administrative morality principles.

(…)

Such episodes, which are not the only ones, are enough to demonstrate that the alleged “cases of necessity” that would justify the use of the term of appointment mentioned in the phone call would be aimed at preventing any other acts arising from that Court.” (our remarks)

More openly, the Popular Socialist Party (PPS) stated in its writ of mandamus No. 3407017:

Fourth: all sectors of Brazilian society are beginning to speculate on the possibility of the arrest of former President Luiz Inacio Lula da Silva, which is a public and notorious fact;

(…)

In fact, it is plainly perceived that, while using legal means, given the reserved power for appointing commissioned positions, the Defendant actually intended to achieve a different purpose, that is, to remove from the Jurisdiction of Judge Sérgio Moro the appraisal of the arrest warrant against former President Luiz Inácio Lula da Silva.” (our remarks)

Finally, the PSDB also filed the Writ of Mandamus No. 3407118, which has put forward:

The inclusion of journalistic material, the information and the request for an arrest warrant by the São Paulo State Attorney’s Office against the Defendant, as well as the search and seizure and the bench warrant issued against him, are evidence of these investigations and evidence the seriousness of the criminal lawsuits pending against the Defendant. Faced with this scenario and the imminent risk of being arrested, the Defendant transformed the previous negative answer into an acceptance of the invitation to become Minister of State.

Upon accepting the position, the first Defendant was granted a position with jurisdictional prerogative by virtue of Article 102, I, c, of the Federal Constitution. In this context, there is no doubt that the first objective of the Defendants is to manipulate the prosecution of criminal lawsuits before the Judiciary Branch, so as to guarantee jurisdictional prerogative to the former President Luiz Inacio Lula da Silva, in obvious deviation from purpose of the administrative act, consisting in the ministerial appointment, as well as in clear attempt to obstruct Justice.

(…)

In the foregoing precedent, the proof of the abuse of power was due to the simple act of renunciation, given the circumstances of the event. In the present case, as demonstrated above, the circumstances reveal that the appointment aims to evade Mr. Luiz Inacio Lula da Silva from responding to the crimes he allegedly committed.

(…)

It has already been reported that the president of the Republic, Dilma Rousseff, her main advisers and cohorts are seeking measures to obstruct the investigative procedures involving Luiz Inácio Lula da Silva in the context of the so-called “Operation Car Wash”, which is pending before the 13th Federal Criminal Court of Curitiba, with the sole purpose of defrauding the decisions of the natural judge of the cause.

Such procedure, to appoint Luiz Inácio Lula da Silva to occupy the position of Chief of Staff of the Presidency of the Republic, action that is now being questioned, is exclusively intended to apply the rule of article 102, item I, c of the Federal Constitution, which guarantees jurisdictional prerogative to Ministers of State before the Federal Supreme Court.

Thus, the appointment of Luiz Inácio Lula da Silva to the position of Chief of Staff of the President of the Republic, before establishing an administrative decision based on the public interest, constitutes a measure aimed at removing someone under investigation from the authority of the correct jurisdiction, as well as of the members of the Federal Attorney’s office acting in the “Operation Car Wash”.

Through the ill-fated decree appointing Luiz Inácio Lula da Silva, a true “fraud to the Constitution” occurs, since the president of the Republic effectively reaches illicit ends by legal means, in a true deviation of purpose.” (our remarks)

It is easy to see that the disclosure of the private conversations, besides causing social disorder, evidenced the prejudgment already established against the First Arrestee, being clear that that there is no doubt on the regards of the criminal procedure being a mere pantomime, since the decision has already been taken for a long time, according to the “line of understanding that he [the judge] has been adopting throughout the course of the operation” Car Wash”.

It is undeniable, therefore, that the conduct of the Hon. Judge of the 13th Federal Court of Curitiba sought to demonize the First Arrestee before the eyes of the society by disclosing private and personal conversations.

And the result has been achieved, as exemplified in the publication below:

19

Audio with conversation of former President Lula and President Rousseff takes thousands of demonstrators to the streets.

President’s conversation with former president suggests a maneuver to free him from Moro’s detention.

Justice discloses to the public the recordings of former President Lula in which he complains about the “Republic of Curitiba”.”

It should also be noted that the conversation between the First Arrestee and the then President of the Republic had been recorded against a court order – and not only without judicial authorization.

This is a fact.

It can be seen that at 11.12 am on 03.16.2016, the decision determining the end of the interceptions entered the investigation records (doc. 12), as well as its communication, as a matter of urgency, to the Federal Police. See below:

Thus, I determine its interruption. Give knowledge to the police authority urgently, including by telephone.

Give knowledge to the Federal Attorney’s Office for its manifestation.

Curitiba, March 16, 2016.

Electronic document signed by SÉRGIO FERNANDO MORO, Federal Judge, in the form of article 1, item III, of Law 11.419, of December 19, 2006 and Resolution TRF 4th region No. 17 of March 26, 2010. The proof of the authenticity of the Document is available at http://www.trf4.jus.br/trf4/processos/verifica.php, by entering the verification code 700001716418v2 and the code CRCb7af8763.

Additional signature information:

Signatory: SÉRGIO FERNANDO MORO

Date and Time: 03/16/2016 – 11:12:22am”

At 11:44 am, the Director of the Secretariat FLAVIA CECÍLIA MACENO BLANCO certifies that she informed by telephone the Chief Officer of the Federal Police. (doc. 13):

CERTIFICATE

I hereby certify that the Chief Officer of the Federal Police, Mr. Luciano Flores de Lima, was informed about the order issued on event 112.”

Electronic document signed by FLÁVIA CECÍLIA MACENO BLANCO, Director of Secretariar, in the form of article 1, item III, of Law 11.419, of December 19, 2006 and Resolution TRF 4th region No. 17 of March 26, 2010. The proof of the authenticity of the Document is available at http://www.trf4.jus.br/trf4/processos/verifica.php, by entering the verification code 700001716418v2 and the code CRC44c35f4b.

Additional signature information:

Signatory: FLÁVIA CECÍLIA MACENO BLANCO

Date and Time: 03/16/2016 – 11:44:14am”

It happens that the conversation between the First Arrestee and the then President of the Republic was intercepted at 1:32 PM on 03/16/2016 (doc. 14):

LILS x DILMA ROUSSEFF

TARGET

DATE/TIME

DURATION

SEQUENTIAL NUMBER

[redacted]

03/16/2016 – 1:32:17PM

00:01:35

[redacted]

TRANSCRIPT

MORAES: MORAES!

MARIA ALICE: MORAES, good afternoon, it’s MARIA ALICE, from President Rousseff’s cabinet.

Therefore, it is clear that there was no judicial authorization to perform the interception of the telephone conversation in question. Furthermore, the Federal Supreme Court has already declared the nullity of this interception within the scope of the aforementioned Complaint No. 23,457 because of the above-mentioned.

In spite of this, the Hon. Judge of the 13th Federal Court of Curitiba, as already said, also gave publicity to this illegally intercepted conversation.

Thus, it is possible to conclude that the Hon. Judge of the 13th Federal Court of Curitiba breached the secrecy of the – licit and illicit – telephone interceptions for purposes other than the instruction of criminal proceedings, using them, as already said, to depreciate the Arrestee,subsidized political movements and created social instability, in direct contradiction to the Federal Constitution.

III.1.4 – The information provided by the Hon. Judge of the 13th Federal Court of Curitiba to the Federal Supreme Court

The information provided by the Hon. Judge of the 13th Federal Court of Curitiba to the Federal Supreme Court leaves no doubt about the pre-judgments made by him and, above all, the loss of his impartiality

The information provided by the Hon. Judge of the 13th Federal Court of Curitiba to the Federal Supreme Court leaves no doubt about the pre-judgments made by him and, above all, the loss of his impartiality.

In fact, by providing information on 03.23.2016, the Hon. Judge of the 13th Federal Court of Curitiba acknowledged that the breach of confidentiality caused “unnecessary constraints”, and said he was “respectfully apologizing” to the Federal Supreme Court (not to the First Arrestee, who was the most harmed):

In the face of the controversy arising from the removal of confidentiality and your decision, I understand that the understanding then adopted may be considered incorrect, or even being correct, may have brought unnecessary controversy and embarrassment. It was never the intention of this judge when publishing the aforementioned decision of 03/16, to provoke such effects and, for them I immediately respectfully apologize to this Federal Supreme Court (our remarks).

                                  This defense does not ignore the fact that everyone – including the Judges – is subject to mistakes. It happens that, in casu, the circumstances need and must be analyzed together: they are successive abuses that show a purpose extraneous to the process. In relation to the telephone interceptions and the breach of their secrecy, therefore, one must take into account the dimension of the aforementioned mistake. It was completely avoidable as well as its drastic consequences.

At the same time, the Hon. Judge of the 13th Federal Court of Curitiba made a character judgment of the First Arresteeeven making to the latter, of ex officio, several imputations of typical conduct, as well as making value judgments about The property of the Santa Bárbara Site, located in Atibaia (SP), stating that Fernando Bittar would be “the formal owner” and “interposed person”:

“On the other hand, in the dialogues, even with authorities with jurisdictional prerogative, there is no evidence that these, that is, the authorities with jurisdictional prerogative would have effectively ceded to the undue requests of the former President for interference in their favor with public institutions in order to obstruct the investigations

—————————————————————————————-

“There are other dialogues of former President Luiz Inacio Lula da Silva intending or trying to obstruct or unduly influence Justice. There are also dialogues in which he reveals the intention to intimidate authorities responsible for the investigation and prosecution”.

—————————————————————————————-

Although these three intercepted dialogues are relevant in the legal-criminal perspective for former President Luiz Inacio Lula da Silva, since they indicate the purpose of unduly influencing or intimidating the Attorney General, there is no evidence in the case or indication that Authorities with jurisdictional prerogative have ceded to his improper requests, which also did not cause the remittance of the case to the Federal Supreme Court.”

—————————————————————————————-

In a conversation of 02/27/2016, between Luis (sic) Inacio Lula da Silva and Senator Luiz Lindbergh, the former president talks again about the intention to use federal congresswomen to intimidate the Federal Prosecutor in charge of the investigation of his conduct in the BNDES sphere and at the same time to intimidate the Federal Attorney General

—————————————————————————————-

Although this intercepted dialogue is relevant in the juridical-criminal perspective for former President Luiz Inacio Lula da Silva, since they indicate the purpose of intimidating or obstructing justice, there is no evidence in the case or indication that the authorities with a jurisdictional prerogative, the unknown federal parliamentarians, have ceded to his undue solicitations, nor was there any reason to, on their account, to send the case to the Federal Supreme Court”.

—————————————————————————————-

In a conversation of 02/27/2016, between Luis (sic) Inacio Lula da Silva and Senator Luiz Lindbergh, the former president talks again about the intention to use federal congresswomen to intimidate the Federal Prosecutor in charge of the investigation of his conduct in the BNDES sphere and at the same time to intimidate the Federal Attorney General

—————————————————————————————-

Although this intercepted dialogue is relevant in the juridical-criminal perspective for former President Luiz Inacio Lula da Silva, since they indicate the purpose of intimidating or obstructing justice, there is no evidence in the case or indication that the authorities with a jurisdictional prerogative, the unknown federal parliamentarians, have ceded to his undue solicitations, nor was there any reason to, on their account, to send the case to the Federal Supreme Court”.

—————————————————————————————-

Although this intercepted dialogue is relevant in the juridical-criminal perspective for former President Luiz Inacio Lula da Silva, since they indicate the purpose of intimidating or obstructing justice, with regard to the President of the Republic, there is no manifestation of her complying with it, which is why there was also no reason to remit the case to the Federal Supreme Court. Nevertheless, because of the legal-criminal relevance of this dialogue for the investigated, there is no right to privacy to be safeguarded, since it is legally and criminally relevant to the former President”.

—————————————————————————————-

Even the part in which the former president attacks the Federal Supreme Court, has its relevance, since it is inserted in a context as indicated, of obstruction, intimidation and attempts of unduly influencing the judicial institutions

—————————————————————————————-

Although this intercepted dialogue is relevant in the legal-criminal perspective for former President Luiz Inacio Lula da Silva, since it indicates the purpose of improperly influencing a Judge using the political system, there is no evidence or indication that the then Chief of Staff complied with the request or even that Supreme Court Justice Rosa Weber, who, as I said before in the decision under attack, is known for her honesty and rectitude, has not even been sought, and it is also noted that she denied a claim in favor of the former President in the Original Civil Action (ACO) 2822. Thus, limiting the legal-criminal relevance of the dialogue to the conduct of the former President, there was no reason to refer the case to the Federal Supreme Court. Nevertheless, because of the relevance of this dialogue to the investigated, there is no privacy right to be protected, since it is legally and criminally relevant to the former President

—————————————————————————————-

Although this intercepted dialogue is relevant in the legal-criminal perspective for former President Luiz Inacio Lula da Silva, since it contains one more indication that he would be the real owner of the country house, it is irrelevant to the Mayor of Rio de Janeiro. Thus, limiting the criminal legal relevance of the dialogue to the conduct of the former President, there was also no reason to remit the case to the Federal Supreme Court or any other Superior Court. Nevertheless, because of the relevance of this dialogue to the investigated, there is no right of privacy to be safeguarded, since it is legally and criminally relevant to the former President”.

—————————————————————————————-

On the other hand, several dialogues were intercepted suggesting that the acceptance by Luiz Inácio Lula da Silva of the position of Minister of State could have the purpose of obtaining protection against criminal investigations”.

—————————————————————————————-

Usually, accepting or not the position of Minister of State is an irrelevant issue from a criminal-legal point of view. In the context of obstruction, intimidation and undue influence in justice, however, the acceptance or non-acceptance by the former President of the position gained legal relevance, at least for him”.

—————————————————————————————-

(…)Although apparently trivial, the dialogue indicates that it is the family of the former President who has the power of usage of the Atibaia country house and not Fernando Bittar, the formal owner, suggesting that this person is an intermediary”. (our remarks).

Now, only from the passages transcribed above, it can be seen that the Hon. Judge of the 13th Federal Court of Curitiba, ex officio, issued several accusations against the First Arrestee in relation to the alleged practice of acts tending to obstruct Justice.

How to admit the figure of the prosecuting-judge?

If this wasn’t enough, he anticipated his position regarding the property of the Santa Bárbara country house, object of investigation pending before this Court!

The same occurred with the additional information provided by the Hon. Judge of the 13th Federal Court of Curitiba to the Federal Supreme Court on 04/04/2016 and 04/22/2016.

Such facts only confirm that there is no exemption from the Hon. Judge of the 13th Federal Court of Curitiba to judge the Arrestees!

III.1.5 – Complaint to the Federal Attorney General

In the face of all the arbitrariness of the Hon. Judge of the 13th Federal Court of Curitiba, a complaint was filed on 16.06.2016, for illicit abuse, directed at the Federal Attorney General Office. This measure was filed by the Arrestees and their families (doc. 15).

In summary, the arbitrariness to which the First Arrestee was subjected can be translated as: execution of a bench warrant, restraining his freedom of movement, without the disobedience of a prior subpoena; telephone conversations illegally intercepted and improper disclosure of their content – including conversations with their lawyers – despite express legal prohibition. In addition, the residence of the Arrestees and his office were targets of search and seizure carried out through a decision without the presence of the legal requirements – as already fully informed.

Such conduct may have, in theory, been tangential to articles 7.2, 8.1, 11 and 25 of the American Convention on Human Rights, Articles 3, a and b, and 4, a, b and h, all of Law 4,898/65, as well as may have established the abuse of authority provided for in the same rule and the illicit provision foreseen in the primary provision of article 10 of Law No. 9,296/1996.

 At the end of the complaint, the Arrestees and their families request that the Head of the Federal Attorney’s Office receive and appraise the matters addressed, adopting the legal measures that are within his jurisdiction, with the intention of thoroughly investigating the facts, in the forms of the law, including with the necessary knowledge and authorization of the respectful Federal Regional Court of the 4th Region.

It happened that, in view of the inertia of the ministerial body in the assessment of the notitia criminis and as provided by the Law, the Arrestee and his next of kin filed a subsidiary complaint on 11.18.2016 before the Federal Regional Court of the 4th Region (doc 16) which is pending trial.

When he presented his preliminary defense (document 17) – signed by his own wife – the Judge of the 13th Federal Court of Curitiba, in addition to addressing the technical aspects of the previously presented defense, produces new and grave statements against the Arrestees and his lawyers:

(…)

With effect, the criminal complaint seeks exclusively to criminalize the accused Judge by the legitimate exercise of the jurisdiction and by the interpretation of the legal texts that he adopted when rendering his decisions.

There is no indication or evidence that the judge has made such decisions for personal or political-party interests, or that he has acted out of hatred, rancor or affection to anyone.

The logic of the lawyers of the Complainants is simple, Luiz Inacio Lula da Silva is innocent of any crime, so any legal action that is taken against him, investigation, prosecution or in the exercise of jurisdiction, can only come from his political enemies or partisan animosity.

The former President, who has already been deprived of his mandate, is seeking immunity from punishment, claiming the privilege of the Princes in the middle ages, the status of a person above the law, not subject to any kind of accountability.

With this distorted logic, they filed this criminal complaint, not with the real expectation of obtaining the conviction of the judge, since they know in advance that they seek, with no chance of success, to criminalize hermeneutics, but to constrain, in order to invoke the measure in the criminal proceedings or investigations that the Complainant Luiz Inacio Lula da Silva is party of or may come to be.

(…)

The possible conclusion is that even knowing the manifest groundlessness of the criminal complaint or even the absence of a procedural presumption of admissibility, they seek, in advance, to strictly comply with the former President’s order (“THEY MUST FEAR”) and in a vain and reprehensible attempt, led by lawyers who apparently see no limits to their professional activities, seek to intimidate the Judge responsible for conducting and judging some of the cases brought by the Federal Attorney’s Office against the former President.”

Also, in the above document, the external defendant authority shows prejudice and unequivocally demonstrates its partiality regarding the Arrestees.

III.1.6 – Decision Which Received the Complaint of Criminal Action No. 5046512-94.2016.4.04.7000

On 09.20.2016, the Hon. Judge of the 13th Federal Court of Curitiba received the Complaint filed by the Federal Attorney’s Office against the Arrestees, on 09.28.2016, widely publicized by the media, since a press conference was called for its disclosure.

Some points of this decision deserve to be highlighted, since they show, once again, the complete loss of impartiality of the Judge in the case.

Ab initio, in reference to the criminal scheme that involved and victimized Petrobras, it was declared that “Differentiated matters refers to the to the conscious or non-conscious involvement of the former President in the criminal scheme. However, it is not a matter of whether or not the First Arrestee was involved in the aforementioned scheme: the material existence of the infraction and indications of linkage to the alleged fact were not even proven! Moreover, this investigative – and extraordinary – hypothesis is a matter for the Federal Supreme Court, where the Police Investigation 3,989 is pending.

In other excerpts of the decision, the Defendant authority makes statements that lead to believe that he has already made his mind about the narrated facts – evidently unfavorable to the Arrestees:

As explained above, a modus operandi consisting in the placement by the ex-President of properties on behalf of persons interposed for the concealment of assets can be seen from the evidence.” (our remarks)

————————————————————————————————

Despite the renovation and improvement of the apartment for the former President and his wife, the transfer of apartment 164-A from OAS to them was not formalized. It is possible that it was interrupted by the preventive detention, on 11/14/2014, of the President of OAS, the accused José Aldemário Pinheiro Filho.” (our remarks)

————————————————————————————————

The real purpose of the contract was concealed.” (our remarks)

————————————————————————————————

There was an apparent recognition of the factual premises established by the Federal Attorney’s Office in relation to this point ” (our remarks)

When reading such excerpts – which seem to be extracted from a conviction and not from an order establishing the criminal action – it turns out that the Judge issues a judgment of certainty, taking for granted the accusatory version, stating, for example, that “the real purpose of the contract was concealed “and” there was an apparent recognition of the factual premises established by the Federal Attorney’s Office in relation to this point “.

The stage of production of evidence had not even begun and the conviction of the Hon. Judge of the 13th Federal Court of Curitiba was already consolidated!

And that’s not all.

Acting as a true Assistant to the Ministerial Body, the Hon. Judge of the 13th Federal Court of Curitiba acknowledged the presence of irregularities in the complaint, but, instead of considering it defective – as it should have been strictly done – he started to act in order to overcome the deficits. He even presents “clarifications” on the complaint filed by the Federal Attorney’s Office. The decision says: “Some further clarification on the individualization of responsibilities is timely”

Yes, the judicial body intending to clarify the request of the Accusation!

Well, if the incriminating petition was not able to demonstrate the clear and individualized responsibility of the accused, it should have been considered defective for noncompliance with the criminal procedural rules. It would not be for the Judge to deal with the individualization of the conduct, since he must act with impartiality and strive for the balance between the parties involved in the criminal procedure, which only corroborates the breach of his impartiality.

Further, it is emphasized that the non-formalization of the agreement between the First Arrestee and OAS, aimed at concealing the real ownership of the property, was possibly due to the preventive detention of Léo Pinheiro: “It is possible that it was interrupted due to the arrest on 11/14/2014, of the President of OAS, the accused José Aldemário Pinheiro Filho.”

We must ask: is it incumbent upon the Judge to raise accusatory hypotheses?

Wouldn’t that be an attribution of the Federal Attorney’s Office?

There is no doubt that the decision under consideration fully corroborates the loss of impartiality of the Hon. Judge of the 13th Federal Court of Curitiba.

III.1.7 –Hon. Judge of the 13th Federal Court of Curitiba attitude in the evidentiery hearings of Criminal Action No. 5046512-94.2016.4.04.7000

Also, in relation to the aforementioned criminal action, the attitude of the Hon. Judge of the 13th Federal Court of Curitiba towards the Arrestees and their lawyers during the evidentiary hearing corroborated and further evidenced the complete loss of impartiality to judge the cases related to them.

At the first hearing relating to these cases, on 11.21.2016, a preliminary hearing was held for the hearing of four (4) prosecution witnesses, namely Augusto Ribeiro de Mendonça Neto, Dalton dos Santos Avancini, Eduardo Hermelino Leite And Delcídio do Amaral Gomez.

On that occasion, the Hon. Judge of the 13th Federal Court of Curitiba allowed the Federal Attorney’s Office to ask questions to the “witnesses” on matters that extrapolate the object of the complaint, under the pretext of “contextualization”. 

In a decision handed down on 10.28.2016, the Defendant authority himself stated that the criminal action is limited to three contracts:

(…)

(…)

The claim of entering, from 2003 to 2016, all the minutes of meetings of the Board of Directors, Fiscal Council and the dozens of Petrobras’ Bidding Commissions, is not justified.

Evidence has a cost and the object of the complaint is determined, relating to three contracts.

The Petrobras documentation is therefore related to the three contracts and not to all the minutes of meetings of Petrobras’ collegiate bodies in thirteen years.

(…)

The Defense must clarify the relevance and pertinence of what is claimed. The complaint refers to three contracts and construction works of Petrobras and not all. It’s not feasible to request from the Federal Accounting Court all of Petrobras audits and auditing procedures in thirteen years. Five days deadline.

(…)

The Defense must clarify the relevance and pertinence of what is claimed. The complaint refers to three contracts and construction works of Petrobras and not all. It’s not feasible to request from the Office of the Federal Controller General all of Petrobras audits and auditing procedures in thirteen years. Five days deadline.”

Notwithstanding such limitation of the subject-matter of the complaint to irregularities in three contracts, which served as the basis for the rejection of the evidence previously requested, the Hon. Judge of the 13th Federal Court of Curitiba, during the aforementioned hearings, allowed Federal Attorney’s Office to investigate witnesses on subjects that clearly extrapolate such an object.

But that’s not all. The event that occurred on 12.16.2016, must be added to the facts previously narrated, at which time the Arrestees lawyers cross-examined the witness called by the prosecution, Mr. José Afonso Pinheiro. The Defense was surprised after making an inquiry following its line of action, with an offensive response to its honor and image by the Hon. Judge of the 13th Federal Court of Curitiba.

Mr. José Afonso is a witness to prosecution in criminal action no. 5046512-94.2016.4.04.7000. It happens that, taking advantage of his fame as caretaker of the Solaris building, the witness applied for the position of councilmen in the city of Santos, for the Progressive Party (PP). His name as a candidate was “Afonso Zelador Triplex” (freely translated as “Afonso Caretaker of the Three story apartment”) as shown in the following image taken from the site “Elections 2016”20.

His election campaign was based entirely on the facts discussed in the criminal action involving the Arrestees. No wonder he preferred to state in his name as candidate the fact that he was the caretaker of the condominium. However, curiously enough, he joined the political party with the largest number of congressmen investigated within Operation car wash21.

Aware of Mr. Pinheiro’s candidacy, the Defense considered it relevant to question the witness about how and why he decided to be a candidate, and if the Operation Car Wash would have been used as the theme of his campaign – considering this key information to determine the degree of impartiality of the witness before that criminal action. The response was aggressive:

I lost my job, I lost my home, and then you want to accuse me, to say something against me? How would you support your family? You’ve never been through it! Who are you to say something against me? You guys are a bunch of trash! That’s what you are. What are you doing, what you have done with our country, trashy people do!22 (our remarks)

The Arrestees, as well as their lawyers, for no reason, had their subjective honor attacked and later replicated in the national television, reaching diffuse parameters. The Hon. Judge of the 13th Federal Court of Curitiba, on the other hand, did not make any effective intervention to curb the insults proclaimed by the witness. Não fez qualquer advertência à testemunha a respeito do que prevê o artigo 213 of the Code of Criminal Procedure23.

He merely stated that This is not the time to offend anyone here” (our remarks)

Such an indifferent attitude of the judging authority is incompatible with the very rule established in the Code of Criminal Procedure, which disciplines the functions of the judge:

Art. 251. The judge shall be responsible for providing for the regularity of the proceedings and maintaining order in the course of the respective acts, and may, for this purpose, request the public force.

In the Rule of Law, the Judge – as director of the process – is responsible for ensuring its regularity and maintaining order, and it is not conceivable that the judging authority allows witnesses to offend the parties and their prosecutors, without being interrupted or minimally reprimanded, all the more due to the publicity and media exposure of all the acts verified within the scope of Operation Car Wash.

                                  Not surprisingly enough, at the end of the hearing the Hon. Judge of the 13th Federal Court of Curitiba apologized in the name of the Court – not to the Defense – but to Mr. Pinheiro! He stated in a clear judgment of value that the questions raised by the Defense were “offensive” to the witness and that he regretted the fact that Mr. Pinheiro had lost his job:

I’m sorry that you lost your job on this occasion, I’m very sorry about that. And I’m sorry if some of the questions sounded offensive to you. I believe that was not the intention of the attorney, but I still apologize on behalf of the court and thank you for your cooperation.

One wonders: what would be more offensive than being called “a bunch of trash” during evidentiary hearing?

The Hon. Judge of the 13th Federal Court of Curitiba, by allowing offenses to be directed against the Arrestees and their lawyers, discharged his duty to maintain the order of procedural acts under his presidency, emphasizing his lack of impartiality, an inseparable condition of the jurisdictional function.

If it was not enough, after the completion of the procedural act, at the turn off of the lights, when the audiovisual recording system was already off, the Hon. Judge of the 13th Federal Court of Curitiba started to make direct provocations to Arrestee’s lawyers and to the legal strategy implemented.

The attitude in question could never have been exercised by a Judge impartial and equidistant of interests in the litigation, and must also be verified in the corrective scope on which it is submitted. Attacking lawyers is not the attitude of an impartial judge. The provocations were as follows:

Judge: “Let’s see if a complaint won’t be filed against you, an action for damages, I mean the witness, from the defense.”

Defense: “It depends … When people practice unlawful acts, they respond for the acts. I think that’s what the law says. ”

Judge: “Are you going to file an indemnity suit, then, against the witness?

Defense: “I don’t know, are you advocating in name of the witness?

Judge: “I don’t know, the defense files against everyone, with complaints, compensation …”

Defense: “Are you acting as a lawyer? I do not think anyone is above the law. Just as people are subject to certain lawsuits, so are authorities. ”

Judge: “All right. A very good line of advocacy. “

Defense: “I make the record of your Honor and receive it as a compliment.”

Judge: “Ok.”24

(our remarks)

Or even as it appears from transcription extracted from the website Migalhas (doc. 18):

Judge Sergio Moro provokes the defense, asking the the witness will have a complaint or a action for indemnification filed against him, in reference to the lawsuits filed by the defense:

Defense: “It depends … When people practice unlawful acts, they respond for the acts. I think that’s what the law says. ”

Judge: “Are you going to file an indemnity suit, then, against the witness?

Defense: “I don’t know, are you advocating in name of the witness?

Judge: “I don’t know, the defense files against everyone, with complaints, compensation …”

Defense: “Are you acting as a lawyer? I do not think anyone is above the law. Just as people are subject to certain lawsuits, so are authorities. ”

Judge: “All right. A very good line of advocacy. “

Defense: “I make the record of your Honor and receive it as a compliment.”

Judge: “Ok.”

This event was recorded by the media, which reverberated the fact attributing to the Judge an attitude of “debauchery” and “irony”, manifestly incompatible with the exercise of his public function25:

CONJUR website:

“BARBS IN HEARING

Sergio Moro ironizes Lula’s defense tactic and is accused of defending the witness”

G1 website:

Audio reveals Sergio Moro mocking Lula’s lawyer

Sergio Moro provokes Lula’s lawyer with ironies and laughter (audio). Lava Jato judge will be denounced to the OAB for permitting swearing to the defense and debauchery”

All these facts confirm that the Hon. Judge of the 13th Federal Court of Curitiba does not have the necessary impartiality to judge the cause, which should motivate the declaration of his suspicion.

It is important to note that Arrestees are not afraid of being investigated or tried by anyone. They want justice and an impartial judgment, simply. This is not only a right of the Arrestees but of every citizen. The motion to recuse implies defending the Rule of Law and the values inherent therein, such as the right to a natural and impartial judge and the presumption of innocence.

The events of partiality by the Hon. Judge of the 13th Federal Court of Curitiba are increasing in number and so is the denial of a fair opportunity to be heard of the Arrestees. How many arbitrary judgments of the Court will still have to occur so that it is finally considered suspect to act in the criminal actions against the Arrestees?

III. 1.8 – SUGGESTIVE BOOKS ALREADY PUBLISHED ON THE “OPERATION CAR WASH”

Despite the fact that “Operation Car Wash” has not been concluded, 03 (three) books have already been published on the theme.

They are:

  • Sérgio Moro”, by Joice Hasselmann26, Universo dos Livros Publisher:

  • Sérgio Moro – the man, the Judge and Brazil”, by Luiz Scarpino, Novas Ideias Publisher:

  • Lava Jato” (Car Wash), by Vladimir Netto, Primeira Pessoa Publisher:

It must be pointed out that this last book, which highlights the fact that the alleged Petrobras criminal scheme reached the “Republic’s heart” and begins narrating the bench warrant served to the First Arrestee; was attended by the HON. Judge of the 13th Federal Court of Curitiba in its launching which took place in Curitiba (State of Paraná) on 06.21.2016. According to a news outlet, the event ended up being a “celebration of Moro and the Operation Car Wash”:

Book release ends up in a celebration of Moro and the Operation Car Wash

Judge Sérgio Moro at the launching event of a book about the Operation Car Wash in Curitiba

It is also relevant to point out that the company Netflix has acquired the copyrights of this last book with the purpose of launching a series, created and directed by filmmaker José Padilha, with a release date estimated for 2017. However, the book puts the HON. Federal Judge of the 13th Federal Court of Curitiba in a prestigious position for his performance in the Operation, mainly against the First Arrestee, as it is notable in chapter 6 of the book, dedicated to the first, which title is “The personality of the Year” and in chapter 12, entirely dedicated to the latter with the following title “Lula in the center of Car Wash”.

There is no doubt that those facts incur, as previously mentioned, a true obligation to the Hon. Judge of the 13th Federal Court of Curitiba of defending the actions taken in the scope of the “Operation Car Wash”, including the arbitrary acts performed against the First Arrestee and, also, the need of not frustrating the expectation raised in society regarding the latter.

This is one more demonstration of the undeniable loss of the necessary impartiality by the Hon. Judge of the 13th Federal Court of Curitiba.

III. 1.9 – Participation in political events and/or alongside audience avowedly opponent to the arrestee

In the course of “Operation Car Wash”, the Hon. Judge of the 13th Federal Court of Curitiba has already participated in several political events that, besides not being common in a Judge’s agenda, are clearly opposed to the First Arrestee.

In December of 2014, the Hon. Judge of the 13th Federal Court of Curitiba participated in an event sponsored by the Organizações Globo – social communication company that maintains a contentious journalistic history, besides the legal issues with the First Arrestee and the political party he is a member of – in which he was awarded the prize “Personality of the Year”:


Dec./2014: Moro is elected Personality of the Year and receives a statuette from the Marinho heirs at na award ceremony.

It is worth to emphasize that the Organizações Globo and its members have systematically made slanderous affirmations – with undue anticipation of value judgement – regarding the First Arrestee and the future of the “Operation Car Wash”; they are declared political opponents.

There are several lawsuits filed by the First Arrestee against the corporate group, either for not granting requests of written reply, or for news reports that have led to non-material damages liable for compensation.

The HON. Judge of the 13th Federal Court of Curitiba has already participated several occasions in events promoted by Mr. João Dória junior, recently elected mayor of São Paulo through the PSDB (and who had previously formalized his pre-candidacy). Besides representing a political opponent, Mr. João Dória Júnior has made slanderous affirmations regarding the First Arrestee, he even declared he would “talk to Moro” about an alleged arrest (of the First Arrestee). There is a (provisional) criminal action in course to investigate such circumstance (doc 19):

Sep. /2015: Moro gives a lecture in a LIDE event in São Paulo, alongside João Dória Jr. and Fernado Capez (both from PSDB).


Jan / 2016: Moro gives another lecture in a LIDE event in São Paulo


Mar./ 2016: Moro gives a lecture in another LIDE event, in Curitiba, state of Paraná.

Also very recently, it was publicized that the Hon. Judge of the 13th Federal Court of Curitiba attended two events completely hostile to the First Arrastee; regarding the personal, as well as the political scope.

The first event was the launching of the new Transparency Web Portal of the Public Administration of the of Mato Grosso (state in the Middle west region of Brazil), governed by the former Federal Attorney Pedro Taques from PSDB, opportunity in which the Hon. Judge of the 13th Federal Court of Curitiba gave a lecture and also took the chance to praise a Representative from such party, Nilson Leitão (PSDB/MT). He also appeared in a picture alongside the PSDB governor27:

And there is more to the fact: the day after, December, 6th 2016, said Judge participated in another event, promoted by “IstoÉ”, a right-wing weekly magazine renowned for its biased and disrespectful issues regarding the first Petitioner. Several politicians from PSDB attended the event, notably Aécio Neves (Senator) and Minister José Serra.

The aforementioned event was largely publicized, especially because of a photograph in which the Judge appears in a clear display of closeness and friendliness alongside Aécio Neves, notorious political opponent of the First Arrestee.

The referred photograph is below:

In relation to Minister José Serra – also a political opponent of the First Arrestee -, it is indispensable to mention that he, in the quality of current Foreign Minister of Brazil, was the one in charge of providing information on behalf of Brazil about the Communication filed with the United Nations (UN), in July of 2016, in which the first Petitioner narrates the several violations and arbitrary acts perpetrated against him by the Judge aforementioned, which violates the International Covenant on Civil and Political Rights, namely: (i) Article 9 (1) and (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; and (iv) Article 17 – protection from arbitrary or unlawful interference with privacy, family, home or correspondence, and from unlawful attacks on honor or reputation.

Those facts, recently publicized, prove the thesis here envisioned that the Hon. Judge of the 13th Federal Court of Curitiba does not have the necessary neutrality, equidistance and impartiality to trial the facts regarding the Arrestees.

Aside from all facts previously narrated, the HON. Federal Judge of the 13th Federal Court of Curitiba participated diverse occasions in events promoted by Abril Publisher, which publishes for more than 30 (thirty) years defamations and slanders relative to the Arrastee (doc. 20) and, because of that, it is object of several lawsuits filed by him:


Apr. / 2016: Moro at VEJA Magazine lecture (April Publisher)


Sep./ 2015: 09/2015: Moro at Exame Magazine Lecture (April Publisher)

It should be noted that the point at issue is not whether the events in which the Hon. Judge of the 13th Federal Court of Curitiba often participates are or are not political events in the strict sense. The fact is that by attending and meeting repeatedly with people who are – notoriously – First Arrestee’s political opponents, and never the other way round, the Hon. Judge of the 13th Federal Court of Curitiba reveals his real inclinations: against Lula and against the Workers’ Party. The notoriety lacks proof.

Moreover, the participation in so many events of such nature is not compatible with the exercise of the legal function. Not for another reason, the Code of Ethics of the Judiciary, approved by the Distinct National Council of Justice [Acronym in Portuguese – CNJ] on 08/06/2008, provides in its Article 13 that “the Judge must avoid behaviors that incur in the unjustified and unmeasured search for social recognition, above all, self-promotion in publications of any sort” (Our remarks).

Is the presence of the Defendant in the mentioned events compatible to such provision?

It seems the answer is negative!

Even because the mentioned Article 13 is also complemented by other provisions of the same Code of Ethics of the National Judiciary:

Article 15. The integrity of a Judge’s conduct out of the strict scope of the legal activity contributes for a solid trust of citizens in the Judiciary system”.

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Article 16. The Judge must have such manners is their private life in a way that dignifies the function, aware that the exercise of the legal activity imposes restrictions and personal demands distinct from the ones which other citizens are subjected to”.

It is important to notice that the participation of the co-acting authority in public events aiming the social recognition takes place practically on a daily basis.

It is also important to notice that Article 8th, of the same Code of Ethics aforementioned, established that “the impartial Judge is the one who avoids all kinds of behavior that might reflect favoritism, predisposition or prejudice” (our remarks).

Has the defendant authority been observing such provision in face of all the aforementioned facts?

Clearly not!

III.1.10 – CLEAR IMPRESSION GIVEN TO SOCIETY

All the circumstances presented have also evoked in some sectors of society the idea that the HON. Federal Judge of the 13th Federal Court of Curitiba already has a formed opinion, regarding the First Arrestee at least.

It is what can be verified in several news reports published by social communication companies, as it can be verified as an example, bellow:

28

What is left for Lula’s arrest

Charged by the Office of the Federal Prosecutor and with an arrest warrant in the hands of Sérgio Moro, the former President has never been so close to be arrested

29

The Supreme Federal Court decides today if Lula will remain under Sérgio Moro’s target

In the agenda of the Federal Supreme Court for this Wednesday afternoon, the discussion is about Lula’s right to a privileged jurisdiction.

30

Moro will be the first to convict Lula

Lula will be tried at the Supreme Federal Court as the chief of a criminal organization.

The decision is going to take a while. It is a possibility he can’t even resist until then. However, Judge Sérgio Moro, still in 2016, should convict him for bribery collection and money laundering through the Santa Bárbara country house.

31

With no privileged jurisdiction, Lula returns to Moro’s hands

Dismissed from his position as Chief of Staff’s Office right after taking office, Lula must have his cases sent to Judge Sérgio Moro on the next days.

Only the lawsuit that investigates the alleged “quadrilhão

Such routing of lawsuits to Moro makes Lula’s possible arrest gains momentum.

The fact that the First Arrestee be already pre-tried by the HON. Federal Judge of the 13th Federal Court of Curitiba has been publicized even by the international press.

It can be observed, for instance, in passages of a news report issued on the American magazine Boston Review, which headline says: “Chasing Lula. Brazil’s massive corruption investigation has become a one-sided political affair, heedless of due process.”

32

Then, it can be observed that it has been created in the collective imagination the certainty of the First Arrestee’s conviction by the HON. Federal Judge of the 13th Federal Court of Curitiba. Such idea, for obvious reasons, has not been spontaneously created; instead, it has been built little by little, by all the perpetrated acts.

III.1.11 –THE REPORTED (AND NEVER DENIED) PARTICIPATION OF THE HON. JUDGE OF THE 13TH FEDERAL COURT OF CURITIBA IN POLITICS.

To the extent that the opinion survey institutes have started to include his name within presidential elections scenarios. Operation Car wash’s status of spectacle and the marketing appeal of its conductor support under many aspects the reasonable hypothesis that the Hon. Judge of the 13th Federal Court of Curitiba would nurture political intentions. To the extent that the opinion survey institutes have started to include his name within presidential elections scenarios.

The Brazilian Institute of Public Opinion and Statistics (Acronym in Portuguese -IBOPE), for instance, added the name of the Hon. Judge of the 13th Federal Court of Curitiba in an opinion survey as a possible candidate of the Brazilian Social Democracy Party (Acronym in Portuguese – PSDB) for the Presidency of the Republic, which has historically put up opposition to the First Arrestee and his Party.

33

SCENARIO 4

(The three PSDB* candidates included)

Feb. 24-25, 2016/March 17-18, 2016

  • Marina

  • Lula

  • Aécio*

  • Moro *

  • Serra*

It is worth to say that, if the results of the conducted surveys prevail, the HON. Federal Judge of the 13th Federal Court of Curitiba would be one of the main opponents of the First Arrestee. This situation could certainly affect the necessary impartiality expected from the aforementioned Judge.

III. 1. 12 – ADDITIONAL CONSIDERATIONS

It is also relevant to notice that, back in the year 2004 the HON. Federal Judge of the 13th Federal Court of Curitiba published an article with his own considerations about the Operation “Mani Pulite”, from Italy34, in which he anticipated the unlawful and heterodoxies that are now used in the so called “Operation Car Wash35. The following is a passage from the article:

Maybe the most important lesson taken from the whole episode is that the legal action against corruption is only effective with the democracy’s support. It is the democracy that defines the limits and possibilities of the action of the Courts.

While it relies on public opinion’s support, it has the conditions to progress and present good results. If that doesn’t occur, it is unlikely that it will be successful. It is certain that, the favorable public opinion also demands that the action of the Courts reach positive results.

(…)

Beyond that, the legal action cannot substitute democracy in the fight against corruption. It is the fully aware public opinion that can, by its own institutional means, attack the structural basis of corruption. Furthermore, the legal punishment of corrupt public officials is always something difficult to achieve, if not for any other reasons, because of the amount of evidence demanded to reach a conviction a criminal action.

From such perspective, public opinion can constitute a beneficial substitute, representing better conditions to impose some sort of punishment to corrupt public officials, condemning them to ostracism”.(Our remarks).

Following such prescription, the leaking distributed to specific sectors of the press are used to engage the public opinion; either to weaken the defense of people targeted by Operation Car Wash, or to prevent the legitimate debates regarding the unlawful methods used.

It is relevant to mention for the sake of its record, that during a press conference available on the internet, the HON. Federal Judge of the 13th Federal Court of Curitiba asks for the “organized civil society’s” and the “public opinion’s” support36.

I am bound by the facts, the evidences and the law. And that’s how I’ll act throughout the lawsuits. Either to acquit the innocent, or to convict the guilty, I am willing to go through all the lawsuits in my hands. But those cases involving serious corruption crisis, involving powerful political figures, can only go further if they count on the support of the public opinion and the organized civil society. This is a job for you. Thank you very much!” (Our remarks).

The Hon. Judge of the 13th Federal Court of Curitiba also made a statement during the social demonstrations affirming that he was “touched” by the population’s support to the “Operation Car Wash”. Says the Hon. Judge of the 13th Federal Court of Curitiba that “it is important that the elected authorities and parties listen to the voice from the streets” and that “there is no future possible if the systemic corruption which destroys democracy, our economic welfare, and our dignity, persists”, it can be read bellow:

On this 13th, Brazilian People went to the streets. Among many reason, to protest against the corruption that is embedded in part of our institutions and market. I was touched by the support to the so called Operation Car Wash investigations.

Despite the references to my name, I dedicate the goodness of the Brazilian People to the success up to now, of a major institutional work which involves the Federal Police, the Federal Attorney’s Office and all instances of the Judiciary Branch. It is important that the elected authorities and parties listen to the voice from the streets and commit to the fight against corruption, reinforcing our institutions and removing it, with no exceptions, from themselves, because currently it is something done almost exclusively by the control bodies.

There is no future possible if the systemic corruption which destroys democracy, our economic welfare, and our dignity as a country, persists

03/13/2016, Sérgio Fernando Moro”

It is clear, therefore, that following the publishing of an article in a doctrinal journal in 2004, the Hon. Judge of the 13th Federal Court of Curitiba has been taking actions – of a clearly political nature – incompatible with the exercise of the legal function.

IV –

THE RIGHT

Criminal coercion consubstantiated in the nullity of the suit – judge completely suspicious – and to due process by the Court’s manifest lack of jurisdiction – violation of the principle of natural judge

The Organic Law on the Judge’s Function defines the impartial judge as follows:

Article 8The impartial judge seeks to find the truth of facts in the evidence, with objectivity and foundation, maintaining throughout the lawsuit an equivalent distance from the parties, as well as avoiding all kinds of behavior that reflect favoritism, predisposition or prejudice.

The Brazilian Constitution establishes that impartiality results from the natural judge guarantee, expressly provided in Article 5, items XXXVII and LIII.

The right to a fair and impartial trial surpasses the boundaries of national law, being expressly provided in international rules of jurisdiction.

International documents enforceable in Brazil ensure the right to a trial presided by an impartial judge, as verified in the following list: (a) Article 10 of The Universal Declaration of Human Rights, which sets forth the right to an “independent and impartial tribunal”; (b) Article 14, item 1, of the International Covenant on Civil and Political Rights, approved by the UN in 1976, that prescribes a “competent, independent and impartial tribunal established by law in the determination of any criminal charge”; (c) Article 8 of the American Convention on Human Rights, which provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.

As observed by Enrico Tullio Liebman:

The judge who is worthy of his position places himself above ideological conflicts within society and focus his activity on the information and matter concerning the concrete case before him and which deserves sober reflection37.” (Our remarks).

Besides, impartiality is what makes the Judge’s practice authentic, as in the exact words of J. J. Calmon De Passos:

The democratic legitimacy of the Judge does not result from delegation a priori, in my opinion. The Judge is legitimated a posteriori, as he issues rules in compliance with due process of law. And, by editing the norms while respecting the legal framework that is provided to him, the Judge is legitimated by law. The Judge’s legitimacy results from his decision in compliance with the process of production of judgment and the contents of this judgment. That is why Americans, with the sensitivity that is very typical of Americans, have a type of incompatibility with the judge that is fruit of decision. It is what they call ‘personal wright’. The judge was not related, he was not interested, but he decided on the case in a such evidently distorted and biased manner that he became incompatible. His decision lacks legitimacy. Because the judge’s legitimacy is not a priori, but a posteriori.”38 (Our remarks).

In this regard, the following is instructed by Ada Pellegrini Grinover:

Today, the impartiality of the judge – rather than a simple attribute – is seen as essential to the judicial function, and the natural judge principle being the essential nucleus of the exercise of this function. More than the subjective right of the party and beyond the individualistic content of procedural rights, the natural judge principle is a guarantee of jurisdiction, its essential element and its substantial qualification. Without the natural judge, there is no judicial function”. 39

Ferrajoli affirms that impartiality is “the essence of judicial activity”40.

Similarly, Gustavo Henrique Badaró41 speaks with propriety, that the judge’s impartiality is the essence of the process (Our remarks).

André Machado Mayer highlights that:

The guarantee of jurisdiction is illusory and a mere formality when there is not a fair judge. It would be more honest to say that, in this case, one does not have the guarantee of jurisdiction, because a contaminated judge is a biased judge, and hence, a non-judge.”42 (Our remarks).

It is important to emphasize that, in this step, the provisions of Article 154 of the Code of Criminal Procedure are merely for exemplification. This conclusion can be drawn from Article 145, V, of the New Code of Civil Procedure (NCPC) and, also, Article 499, III, of the Code of Criminal Procedure (CPP).

In this sense, Scarance Fernandes manifested an Opinion in the records of the Habeas Corpus 146.796/SP, judged by the 5th Panel of the Supreme Court of Appeals:

When the legislator does not allow someone to be judged when there is an inclination to be convicted or acquitted, he is establishing in law a normative parameter for verifying the partiality of the one who judges, not only the one who is judged. In short, it is to validate the rule that the judge cannot anticipate his judgment before deciding on the prosecution, since it can only derive from the set of evidences yet to be produced. He cannot, however, show inclination for the positions defended by either of the two parties, failing to act in an impartial manner.

There is no justification for confining the rule to the narrow limits of the jury’s proceedings. It represents the general rule, drawn from the constitutional principle of impartiality, that one cannot be a judge of a cause who has previously expressed his conviction, being favorable to the claim of one of the litigants

Thus, we conclude that it is possible to apply, in the case of recuse of a criminal judge, by analogy with Article 135, V, of the Code of Civil Procedure, and Article 499, III, of the Code of Criminal Procedure, allowing for his suspension when his acts and opinions make it evident he has an interest in the case in favor of the prosecution or predisposition to condemn.

It is not possible to imagine another solution that – based on the affirmation of impossibility of applying analogically those provisions in Article 254, in spite of the analogy be applicable to criminal procedure – could keep in the case a judge who lost his exemption, in view of acting as if he was a party or expressing predisposition to give a conviction or acquittal.43 (our remarks).

In this regard, the Supreme Court of Appeals has the same opinion, as it may be verified in the example decision below:

Although it is said that the enumeration of article 254 of the Code of Criminal Procedure is exhaustive, the judge’s impartiality is indispensable to the exercise of jurisdiction and, as such, the extensive interpretation and use of analogy must be allowed under the terms of article 3 of the Code of Criminal Procedure” (STJ [Superior Court of Justice], Special Appeal 245.629, Rapporteur Justice VICENTE LEAL, j. 11.9.2001) (our remarks)

As annotated by Lopes Jr., “They [the provisions of Article 254] cannot be restricted, under the penalty of – absurdly – our not admitting the most important of all exceptions: lack of impartiality of the judge (remembering that the Supreme Principle of the proceeding is impartiality)44 (our remarks).

Effectively, it is necessary to identify in the concrete case situations that may reveal the loss of impartiality.

The doctrine and court precedents provide important parameters on the subject.

Lopes Jr. also informs us that the judge must maintain a distance from factors external to the proceeding:

in order to have a natural judge who is impartial and truly performs his function (that of a guarantor) in the criminal proceeding, he must be above all kinds of political pressure or manipulation (..) This liberty is regarding external factors, i.e., he is not obliged to neither decide according to the will of the majority nor surrender to political pressures.

The judge’s democratic legitimacy derives from the democratic character of the Constitution, not from the will of the majority.” 45

This results directly in nullity, provided in the Code of Criminal Procedure in its Article 564, item I, in face of the expressed violation to the mandatory rule, which protects the public interest, as well as incurable reparation, for not being ratified or ratified by preclusion or becoming unappealable.

This is explored by renowned jurist Gustavo Henrique Badaró, in his book “Criminal Procedure”:

Absolute nullity is the one resulting from the violation of a certain form of the act, which was intended to the protection of the interest in the suit of public policy. In Criminal Procedure, there is absolute nullity every time a constitutional rule on the suit is violated. The constitutional guarantees with procedural contents must not be seen only through an individualist point of view, as guarantees of the parties, but as rules that ensure the due process, being a legitimation factor of the court’s activity, with an evident public interest in it compliance”.46

Moreover, as it is known, the Federal Constitution  due process of law principle, ensuring that “No person shall be deprived of liberty or property without due process of law” (article 5, item LIV). And, due process of law means the “process developed as established by law47.

And it is in the scope of due process of law that the right to a judgment by a subjectively and objectively impartial judge take shape.

Additionally, such right (of being judged by an impartial judge), for being so relevant and highly valued to the democratic civilizations, is provided in all international legal documents that provide for human rights, especially the a Universal Declaration of Human Rights/1948 and the American Convention on Human Rights/1969 (Pact of San José, Costa Rica).

As provided in Article 10 of the da Universal Declaration of Human Rights and Article 8 of the Pact of San José, Costa Rica (American Convention on Human Rights), every person has the right, in full equality, to a fair and public hearing by a competent, independent, and – especially – impartial tribunal to decide on his rights and obligations in the substantiation of any criminal accusation made against him.

Consequently, the defendant, besides having already determined the illegal compulsory process of the First Arrestee through a bench warrant, and the arbitrary breach of telephone confidentiality – and its posterior disclosure -, have already attended several political events that, besides not being common in judges’ schedules, expressly opposed to the First Arrestee, as well as anticipating future criminal judgment, as it has been confirmed, in an evening meal provided by the president of Instituto dos Advogados of the state of Paraná, affirming that the First Arrestee would be convicted, at least, until the end of the year of 2016.

The attitude of the judge with such behavior violates the due process of law, because it hurts the principle of impartiality. For this reason, the Superior Courts, in virtually similar cases, have recognized nullity of cases presided by a judge who, besides having expressed value judgment even before the end of the presentation of evidence, shows to have completely lost partiality to judge the process. By the way, let us see:

HABEAS CORPUS. LACK OF JURISDICTION OF COURTS OF GENERAL JURISDICTION RECOGNIZED. NULLITY OF ACTS. SUSPICION . ARTICLE 254 , I OF THE CODE OF CRIMINAL PROCEDURE . ABSOLUTE NULLITY.VIOLATION OF THE PRINCIPLE OF IMPARTIALITY ON COURT DECISIONS. ARTICLES 252 TO 256 OF THE CODE OF CRIMINAL PROCEDURE. OFFENSE TO PUBLIC POLICY. IMPRACTICAL A MERE UNMOTIVATED RATIFICATION OF COURT DECISION DETERMINED BY JUDGE WITHOUT JURISDICTION AND UNDER SUSPICION. NULLITY OF ACTS UPON THE ACCEPTANCE OF INFORMATION. ARTICLE 157 , § 2 OF THE CODE OF CRIMINAL PROCEDURE. DEFECTIVE INFORMATION. ORDER OF HABEAS CORPUS GRANTED. 1 – The Court of Appeals of the State of Rio de Janeiro affirmed the lack of jurisdiction of the state courts of general jurisdiction based on the description of facts contained in the information offered by the State Attorney’s Office. Likewise, the provisional decisions requested to the detriment of the arrestee, of a personal, property, and probative nature, were announced on the same occasion when the information was accepted, that is, when it was already evident, in the analysis carried out by the Court of Appeals of Rio de Janeiro, the lack of jurisdiction of that judge. There was an express declaration of the nullity of acts practiced in the scope of the state courts. 2 – The decisions announced by the Honorable. Judge are null also because of supicion, recognized by the 6th Panel of the Supreme Court of Justice, pursuant to Article 254 , I of the Code of Criminal Procedure . The before-mentioned nullity is absolute, for the reason that the entry o judgment by a suspected judge violates the principle of impartiality of court decisions, built upon the rules included in Articles 252 to 256 of the Code of Criminal Procedure . 3 – The maintenance of acts practiced by a suspected judge violates not only the interest of the parties but also offends the public policy. 4 – As provisional measures that restrict fundamental rights, like the breach of tax and bank secrecy and the measure of house search and seizure, and the measures of seizure of property (constrição patrimonial), mere unmotivated ratification of a court decision announced by a court not only without jurisdiction, but also biased, is not apt to protect the fundamental rights of the defendants, who were subject to restriction.

5 – All acts following the acceptance of the information by the Honorable State judge under suspicion must be considered null and the evidence produced by him must be declared unlawful, pursuant to Article 157§ 1º of the Code of Criminal Procedure, because they were obtained in violation with the constitutional and legal rules.

6 – Defective information. The initial complaint does not describe the previous crimes that originated the enormous amounts from money laundering. The description of crimes whose gains originated from only 1money laundry operation is insufficient.

7 – Order of habeas corpus granted to dismiss the criminal proceeding pending in view of the defective information, to declared the unlawfulness of the evidence produced by operation of the evidentiary provisional measures approved by the courts of general jurisdiction of the State of Rio de Janeiro, and to declare the nullity of the measures for the seizure of property adopted, except for the possibility of the acts to be further renewed in the course of the investigation or another criminal proceeding that may be brought against the arrestee, before an competent and impartial court”. (TRF [Regional Federal Appellate Court 2nd Region, 2nd Panel, HC 0001243-25.2016.4.02.0000, Appellate Judge Rapporteur SIMONE SCHREIBER, J. 16.03.2016) (our remarks).

Moreover, it is appropriate to make it known, to reinforce, a precedent of the Superior Court of Justice that confirms the understanding:

HABEAS CORPUS . LARCENY AGGRAVATED (ARTICLE 155, 4, ITEM II, OF THE CODE OF CRIMINAL PROCEDURE). ALLEDGED SUSPICION OF THE JUDGE RESPONSIBLE FOR CONDUCTING THE CRIMINAL PROCEEDING. EXEMPLIFICATIVE PROVISIONS. EXISTENCE OF ANOTHER MOTION TO RECUSE OPOSTA AGAISNT THE SAME JUDGE AND THAT WAS GRANTED. FACTS INDICATING THE BRWEACH OF IMPARTIALITY RE QUIRED TO THE EXERCISE OF THE JUDGE’S FUNCTION. ILLEGAL  RESTRAINT ILEGAL EVIDENCED. ORDER GRANTED.

1. The causes of suspicion provided in Article 254 of the Code of Criminal Procedure do not refer to situations in which the judge is unable to exercise the jurisdiction. Instead, it refers to the cases when the judge loses the impartiality so as to evaluate a certain cause, the reason why the doctrine and court precedents have understood that the mentioned list of legal provisions is merely exemplificative.

2. The Court of Appeals of the State of Minas Gerais had already recognized the suspicion claimed in a previous motion to recuse due to facts that evidenced the breach of impartiality of the judge in regard with the arrestee.

3. Moving for the disqualification of the judge because of suspicion is intended to the protection of a characteristic inherent to jurisdiction, which is impartiality, and the lack of it represents an offense to due process.

4. Order granted”. (STJ [Superior Court of Justice], 5th Panel, HC 172.819/MG, Justice Rapporteur Jorge Mussi, J. 16.04.2012) (our remarks)

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HABEAS CORPUS REPLACING APPEAL. INAPROPRIATENESS. SUSPICION OF JUDGE. ANIMOSITY (ART. 254, I, DO CPP). PRESENCE OF ELEMENTS THAT PRECLUDE THE MAINTENANCE OF IMPARTIALITY OF THE JUDGE. WRIT DENIED. ORDER GRANTED UPON MOTION”.

(…) – Presence of elements, especially the existence of criminal action and disciplinary complaint involving the arrestee and the Judge-appellee, indicating that a situation arises in which the maintenance of the impartiality of the judge cannot be sustained.

Habeas corpus unknown. Order granted upon motion to recognize the suspicion of Judge, as well as through the annulation of the case from the decision of accepting the information.” (STJ [Superior Court of Justice], 6th Panel, HC 311.043/RJ, Appellate Judge Rapporteur ERICSON MARANHO, J. 23.06.2016) (our remarks).

In his vote, the Appellate Judge Ericson Maranho points out:

Suspicion is based on a supposed animosity of great importance between the judge and the arrestee (Article 254, I, of the Code of Criminal Procedure), who is being impaired by countless acts performed by the Judge-appellee. However, this supported the inexistence of the alleged animosity (p. 24). Regarding the subject, this Court understood that “the animosity causing the suspicion as provided in Article 254, I, of the Code of Criminal Procedure must be public, reciprocal, and well-founded on mutual conflicts or aggressions” (AgRg no REsp 1331200/RS, Rapporteur Justice MOURA RIBEIRO, FIFTH PANEL, DJe 14/05/2014). I understand that such circumstances are present in the concrete case, notwithstanding the arguments presented by the lower Appellate Court expressing the opposite. (…)

In addition to this criminal proceeding, there is a Disciplinary Complaint filed by the arrestee against the Judge-appellee, before the National Council of Justice (pp. 286/391), as well as a decision by the Supreme Federal Court pointing to a supposed suspicion of the Judge, who, a priori, applied disproportionate provisional measures on the arrestee. (Provisional Measure in Compliant n. 15.697/RJ), as in the following excerpt:

They also asserted that such measures were established by an illegitimate authority, since my preliminary decision determined the compliance by the judge of the 1st Court of Búzios, and not by the judge of the 2nd Court, who is precisely the alleged victim in the criminal action in which the claimant was denounced. (…) Considering the facts presented in the petition for the amendment of complaint (electronic document 45), and taking into account that the measures of Article 319 imposed by the Judge respondent seem to be disproportionate to the gravity of the crimes that are attributed to the claimant, and considering that they were decreed by a judge, in an initial examination of the case, suspected and incompetent, I reconsider the injunction previously granted to circumscribe , for now, its constriction exclusively to the house arrest in which one is already present (p. 205)’.

From a careful reading of the appellant’s allegations and the grounds of the contested judgment, I understand that all the events involving the arrestee and the judge indicate that a situation arises in which the maintenance of the impartiality of the judge cannot be sustained, despite the presence of indications that the arrestee may have caused such animosity, as affirmed by the lower Appellate Court.

(STJ [Superior Court of Justice], 6th panel, HC 311.043/RJ, Justice Rapporteur ERICSON MARANHO, J. 23.06.2016) (Our remarks).

Also, the existence of nullity of the process was confirmed in view of manifest lack of respect to the due process, in view of evident violation of the principle of natural judge through processing and judging the Criminal Proceeding in comment by a judge manifestly without jurisdiction.

In order to confirm the foregoing, we collate the consolidated understanding, recognizing the denial of the right to be heard by lack of evidence production, let us consider the following:

HABEAS CORPUS. CRIMINAL ACTION. NULLITY. LACK OF JURISDICTION OF THE JUDGE. MATTER NOT DISCUSSED IN THE FIRST COURT. PRINCIPLE OF THE NATURAL JUDGE. ALLEGED OFFENSE. ABSOLUTE NULLITY. COGNITION OF MANDAMUS.

1. In spite of the matter related to the lack of jurisdiction of the Judge having not been discussed by the First Court, the writ deserves to be received, for raising the occurrence of absolute nullity of the criminal action, due to violation of the principle of Natural Judge, guaranteed under the constitution. (…)

2. If the determination of arrest by the First Court is made without foundation of the need for arresting the arrestee before the conviction becomes unappealable, by operation of the provisions in Article 312 of the Code of Criminal Procedure, characterizes illegal restraint, remedied via habeas corpus.

3. Writ received e partially granted to allow the arrestee to stay in liberty until the the conviction becomes unappealable, regardless of, if any of the hypothesis authorizing the preventive arrest are present, contained in Article 312 of the Code of Criminal Procedure, occasional arrest may be fundamentally determined. (STJ [Superior Court of Appeals], 5th Panel, HC 108.869/DF, Justice Rapporteur Jorge Mussi, J. 02.06.2009) (our remarks)

Now. As it is well known, all the acts of decision performed by a judge lacking jurisdiction in evident and serious violation of the principle of natural judge must be considered null. As understood by the venerable legal scholar Gustavo Henrique Badaró:

In the case of lack of jurisdiction resulting from violation of constitutional rule, there is current in the sense that, as it is a violation of the natural judge rule (CR, Article 5th, LIII), there would be inexistence of the whole process, and not only absolute nullity. Consequently, the Article 567 of the Code of Criminal Procedure would not apply, as not only the acts of decision, but all the acts of process, will be inexistent”.48

From any point of view, it is imperative to grant the writ of Habeas Corpus, as the only way to stop the illegal constraint, which falls on the Arrestees, continuously.

V –

THE NEED FOR A GRANTURE OF PRELIMINARY INJUNCTION

The processing of the case by a judge clearly biased and lacking jurisdiction violates all the most simple principles of the Procedural Law, such as the principles of presumption of innocence, dignity of the human person, legality, morality and impersonality, induces serious illegal constraint the Arrestees, as they are deprived of their most essential rights.

It is unacceptable, because, the Honorable Federal Judge of the 13th Federal Court of Curitiba continues to preside over the Criminal Action No 5046512-94.2016.4.04.7000, as well as occasional new procedures in relation to the Arrestees, after countless public demonstrations that the Arrestees are their opponents, seen as enemies by the judges, so that it unbalances and compromises all foundations in support of the accusatory procedure, the only model able to guarantee of a fair trial.

It’s understood that for granting preliminary injunction, two basic principles of Law must be present, legal requisites of the injunctionpressupostos que são das cautelares: the fumus boni juris and the periculum in mora.

The first one means “smoke of a good right”, it is worth mentioning the existence of Law that support the alleged.

In this regard, Frederico Marques reminds us that:

(…) it is necessary that there is the fumus boni juris so that the criminal action has the conditions of feasibility. Otherwise, the information will be deemed defective, due to the lack of an authentic interest and, consequently, for good cause shown. Hence, it is mandatory that the judge has the control over this condition of feasibility of the accusatory claim, because, otherwise, the status libertatis of the deffendant may be affected”. 49

Now the second one deals with the irreparable harm to the arrestee’s rights.

This, in turn, is also evident, taking into account the disrespect on the part of Hon. Federal Judge of the 13th Federal Court of Curitiba to the constitutional guarantees assured to the Arrestees, in addition to the fact that this is a case of great national repercussion and commotion, which aggravates the illegal constraint in an unprecedented way.

The preliminary injunction, therefore, should serve to lessen the damages that are constantly being caused by the patent unlawfulness verified in the case in question. The continuity of the process – which is in progress and already in the stage of hearings of instruction – in such circumstances renews the illegal constraint suffered by the Arrestees on a daily basis.

Thus, either the periculum in mora or the fumus boni júris are present for granting the preliminar ionjusction.

Therefore, as necessary and expected, the injunction to suspend the processing and occasional judgment of Criminal Case No 5046512-94.2016.4.04.7000, until the end of the adjudication of the merits of this suit for a writ of mandamus. It is requested initio lítis.

VI –

THE REQUESTS

In view of the foregoing, we request:

(a) A preliminary injunction is granted to determine the suspension of the pending case and possible judgment of the Criminal Proceeding No 5046512-94.2016.4.04.7000, until the final adjudication upon the merits of this suit for a writ of mandamus;

(b) The Defendant Authority, embodied in the Federal Judge Sérgio Fernando Moro, from the 13th Federal Criminal Court of the Judicial District of Curitiba/PR, be summoned to testify, within the legal deadline;

(c) Finally, let the writ of habeas corpus be granted with the purpose of aknowledge and stave the illegal constraint consolidated by absolute nullity, provided in Article 564, item I, of the Code of Criminal Procedure, due to the manifest suspicion and lack of jurisdiction of the Hon. Federal Judge of the 13th Federal Court of Curitiba, with the subsequent remittance of the records to the competent Judge.

Grant is requested.

São Paulo, January 27, 2017.

ROBERTO TEIXEIRA

OAB/SP 22.823

CRISTIANO ZANIN MARTINS

OAB/SP 172.730

JOSÉ ROBERTO BATOCHIO

OAB/SP 20.685

JUAREZ CIRINO DOS SANTOS

OAB/SP 3.374

1 AURY LOPES JR, Direito Processual Penal, 12th edition, 2015, pg. 1120.

2 “2. In addition to preserving the evidence, the authorizing element of preventive detention, consisting of the convenience of criminal investigation, in the face of the series of attacks against the country, has an important role in persuading violators to collaborate with the unraveling of criminal offenses as it may happen in this case, like many others.” – Federal Prosecutor Manoel Pestana in HABEAS CORPUS No. 5029050-46.2014.404.0000; http://www.conjur.com.br/2014-nov-27/parecer-mpf-defende-prisoes-preventivas-forcar-confissoes.

4 Bottino, Tiago. A inconstitucionalidade da condução coercitiva. In Instituto Brasileiro de Ciências Criminais – Boletim IBCCRIM – n. 285 – Ago/2016, pp. 4-6.

5 Available on: <http://zh.rbsdirect.com.br/imagesrc/17988009.jpg?w=640&gt; Accessed in: october 2016.

6 Available on: <http://zh.rbsdirect.com.br/imagesrc/17990388.jpg?w=640&gt; Accessed: october 2016.

8 Available on: <http://brasildefato.com.br/node/34318&gt; Accessed on: october 2016.

9 Ref. Dockets No. 5035882-13.2015.4.04.7000 e 5055607-85.2015.4.04.7000.

10 Badaró, Gustavo. Processo Penal, 2012. pages 354/355.

16Available on: <http://s.conjur.com.br/dl/adpf-psb-nomeacao-lula.pdf&gt; Accessed: october 2016.

21 “PP é o partido mais citado na Lava Jato. E é um dos que mais cresce na Câmara”. In.: https://www.nexojornal.com.br/expresso/2016/07/22/PP-%C3%A9-o-partido-mais-citado-na-Lava-Jato.-E-%C3%A9-um-dos-que-mais-cresce-na-C%C3%A2mara

23 Article 213.  The judge will not allow the witness to express his personal appreciation, except when inseparable from the narrative of fact.

24 Transcript extracted from the vídeo pubblished on the website Migalhas.com. In.: http://www.migalhas.com.br/Quentes/17,MI250830,11049Video+exclusivo+Moro+ironiza+defesa+de+Lula+em+audiencia. Youtube direct link: https://www.youtube.com/watch?v=nLuvKXeGdHY

25 “Audio reveals Sergio Moro mocking Lula’s lawyers”. In.: http://www.pragmatismopolitico.com.br/2016/12/audio-sergio-moro-attorney-at-law-de-lula.html; “Sergio Moro ironizes Lula’s defense tactic and is accused of defending witnesses.” In.: http://www.conjur.com.br/2016-dez-19/moro-ironiza-defesa-lula-acusado-defender-testemunha; “Video posted by the website Migalhas shows Moro ironizing Lula’s attorney” In.: http://www.poder360.com.br/videos/video-divulgado-pelo-site-migalhas-mostra-moro-ironizando-attorney-at-law-de-lula/

26 The mentioned author is being sued by the First Arrestee for having unduly attacked his honor.

28 Available at: <http://istoe.com.br/452700_O+QUE+FALTA+PARA+LULA+SER+PRESO/&gt; Accessed in: Oct. 2016.

33 Available at: <ttp://www.revistaforum.com.br/rodrigovianna/geral/genial-a-folha-tucana-lanca-moro-pelo-psdb/. It is notable that, after the “finding” of the fact, Folha newspaper modified the graphic, according to the erratum on its website: http://www1.folha.uol.com.br/poder/2016/03/1751951-pesquisa-datafolha-mostra-marina-a-frente-em-todos-os-cenarios-para-2018.shtml> Accessed in: Oct. 2016.

34 Available at: http://goo.gl/2W3Gkx Accessed in: Oct. 2016.

35Available at: <http://goo.gl/218vAP&gt; Accessed in: Out. 2016.

37 Liebman, Enrico Tullio. Italian legal journal, 1977, pp. 739/740.

38 De passos, J. J. Calmon, A formação do convencimento dos Magistrados e a Garantia Constitucional de Fundamentação das Decisões, conferência proferida em 11.05.1001, no Simpósio de Direito Civil e Direito Processual Civil promovido pelo Instituto de Ensinos Jurídicos, Rio de Janeiro, apud REIS FRIEDE, Vícios de Capacidade subjetiva do julgador: Do Impedimento e da Suspeição do Magistrado, Editora Forense, 5ª edição, p. 07

39 Tonini, Paolo, Manuale di procedura penale, 6ª Ed. Milano. A. Guiffré, 2005, p.87.

40 Ferrajoli, Derecho Y Razón, teoria del garantismo penal, p. 581/582.

41 Badaró, Gustavo Henrique, Processo Penal, 3ª ed., São Paulo, Editora Revista dos Tribunais, 2015, p. 273.

42 Maya, André Machado. Imparcialidade e processo penal. Rio de Janeiro: Lumen Juris, 2011.

43Apud André Machado Mayer. Imparcialidade e Processo Penal na prevenção da competência. Lumen Iuris, p. 252-253.

44 Lopes Jr., Aury, Direito Processual Penal, 12º edição, 2015, p.339

45 Ibidem, p.63

46 Badaró, Gustavo Henrique, Processo Penal, 3ª edição, 2015, p.789

47 CAPEZ, Fernando. CURSO DE PROCESSO PENAL12 ed., São Paulo, Saraiva, 2005, p. 30

48 Badaró, Gustavo Henrique, Processo Penal, 3ª edição, 2015, p.794

49 José Frederico Marques. Elementos de Direito Processual Penal. Rio de Janeiro, Forense, vol.2, pg.167.


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