Suspicion Motion 110716 3

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JOSÉ ROBERTO BATOCHIO

ADVOGADOS ASSOCIADOS

Evidently, the Movant’s right to personal integrity — which encompasses physical, psychic and moral integrity — was violated by the arbitrary act of the Object Party. We repeatedly emphasize: there is no legal provision for this type of restriction to freedom imposed by the Objected Party on the Movant.

Such temporary detention is illegal and unlawful.

Such situation is a severe violation of the American Convention on Human Rights and of the International Covenant on Civil and Political Rights, both subscribed to by Brazil, according to the following excerpts of their rules:

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

Article 7. The right to personal freedom

(..)

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

Article 11- Protection of honor and dignity

1. Every person has the right to have their honor and recognition of dignity respected.

2. No one shall be subjected to arbitrary or abusive interference with his privacy, family, home or correspondence, or to unlawful attacks on his honor and reputation.(our emphasis)

——————————————————————————————

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 is evident, since the (internal or external) intentions of the Objected Party seem to surpass the legal limits and to refer to elements beyond the scope of his function and the legal action, as previously exposed.

On the same note, this is the understanding of Distinguished Professor Celso Antônio Bandeira de Mello in an interview he gave at the time:

““Actually, it is not an evaluation, but a legal verification: a gross illegal act was committed. A bench warrant cannot be imposed on anyone unless this person refuses to testify. If the person in question never refused to testify; has a fixed place, is a person that everyone knows where to find; if the person is a public figure, such as former president Lula, who has testified in every occasion he was called to do so, there is no sense in ordering a bench warrant.

A bench warrant is a violent action, literally, in a case like this. If we were under the Rule of Law, the person who ordered such illegal act would obviously suffer a sanction for having acted beyond his.

From my perspective, such sanction should be imposed against the judge who ordered the bench warrant. And also against the MPF [the Federal Attorney’s Office], because it should not comply with an order that is clearly illegal. This is an illegal order, therefore the MPF should also be punished.

He [Sérgio Moro] practiced an illegal act, and so did the Federal Attorney’s Office. From the perspective of the Law, we are no longer under the Rule of Law. To me, this is evident. We are now under a ‘Police State’, in which the press decides things and others execute them. And without the Rule of Law, anything can happen.

I think nothing relevant will happen because what should happen is to hold liable the judge for said illegal act, and the Federal Attorney’s Office for having complied with the illegal court order. This should be the procedure according to the law. But the law expects normality, and we are not living in an environment of normality, are we? At least I don’t think so1.

The arbitrariness of the act was also recognized in a communication to the press by Justice Marco Aurélio de Mello of the Federal Supreme Court. He declared:

I didn’t understand it. A bench warrant is only applicable when an individual shows resistance and does not show up to testify. And Lula did not receive a subpoena. (…) Did he [Lula] want that kind of protection? I believe that, actually, this argument was given to justify an act of force. (…) This is a setback, and not a progress. (…) We are judges, not lawmakers, or avengers.2(our emphasis)

Finally, the measures adopted and actions taken by the Objected Party against the Movant are clearly abusive, and illegal at times, violating the pertinent fundamental guarantees and International Treaties, affecting the necessary unbiased view of the judge.

II.2 Arbitrary Breach of Telephone Secrecy

Without refraining from any limits, the Objected Party ordered the tapping of the telephones used by the Movant , his family and assistants (ref. record No. 5006205-98.2016.4.04.7000 – doc. 03). The measure was accepted in February 2016, after the breach of the bank and tax secrecies of the Movant3, before the requests for a search and seizure warrant.

But Law No. 9,296/96 sets forth:

Article 2 Phone call tapping shall not be allowed in any of the following situations:

I – there are not any reasonable indications that an individual committed or participated in a crime;

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

That is: the tapping measure was authorized in a context in which the search and seizure warrant and the personal testimony of the investigated party had not yet been executed, thus fully diverging from the legislative exception to the constitutional guarantees of telephone secrecy and protection of privacy.

In this sense, GUSTAVO BADARÓ teaches that 4:

Unfeasibility must be justified by demonstrating the investigation is unfeasible by other means, for example, a search and seizure warrant, eye witnessing, evidence from testimony, the obtention of phone call registrations etc. Obviously, one should go beyond reasserting the provisions set forth in the law, affirming that the investigation could not be conducted by any other means. It is necessary to actually indicate that the reconstruction of the facts shall be unfeasible without the wire tapping” (our emphasis)

In retrospect, in the record of the phone call tapping procedure and its due acceptance, we verify that the Federal Attorney’s Office required measures which are extremely severe without proof that the Movant committed a crime (fumus comissi delicti ).

This is the actual fact. The Federal Attorney’s Office has not provided any fact or conduct other than “possibilities”, “elements”, “indications or evidence” and “probable cause”. The Judge himself states that “The use of registered assets in the name of others, in itself, is not a crime” and “It is not a crime to give lectures and be paid for them. Likewise, official donations to charitable entities are perfectly legal, as are consulting service contracts” (doc. 08).

An analysis of the legal provisions demonstrate that only in the case of evidence in a criminal investigation and in a criminal procedure” (Art. 1, main article, Law No. 9,296/96) and ifthere are reasonable indications that the relevant party committed a crime or participated in a criminal violation”, and (in addition!) if it is not possible to “produce evidence by other means”, as well as if the alleged criminal violation does not result, “ at most, in detention”, pursuant to Article 2 of Law No. 9,296/96 could there be the telephone tapping of the calls of the Movant.

However, this is not the case herein.

In this sense, we state Honorable Justice Teori Zavascki from the Federal Supreme Court, who in the preliminary decision regarding the Provisional Remedy in Complaint No.23.457/PR filed by the President (doc. 09) recognized that the reasons of the decisions by the Objected Party which authorize the phone call tapping in “Operation Carwash” were insufficient to justify the authorization for such exceptional measures, since they weremerely allusiveand had reprehensible reach:

The examination of the record reveals, however, even in judicial cognizance, a diverse reality. As per electronic procedure, the request from the Federal Attorney’s Office was recorded on February 17th, 2016, “in relation to persons associated with former president Luiz Inácio Lula da Silva (events 1 and 2)”, amended on February 18th, 2016, authorized on February 19th, 2016, confirmed and expanded on February 20th, 2016, February 26th, 2016, February 29th, 2016, March 3rd, 2016, March 4th, 2016 and March 7th, 2016, always for merely allusive reasons, making it virtually impossible to control, even after the events, the tapping of several telephone extensions.” (our emphasis).

Obviously, in this context, the authorization to tap the phone calls of the Movant – and the subsequent extensions – was a way of engaging in a real inquest in relation to the Movant and the members of his family, and this should be repudiated. In addition, it fully affects the collected material.

Actually, we emphasize that said Complaint was recently judged (Doc. 10), as per the decision available on June 13th, 2016, through which Justice Teori Zavascki established the understanding that there were illegal acts in the wire-tapping procedure conducted by the Judge from the 13th Federal Criminal Court of Curitiba, invalidating events 135 and 140 of the Request for the Lift of Data and/or Telephone Secrecy 5006205-98.2016.4.04.7000/PR. We emphasize that an appeal was filed, and it is currently sub judice with the Federal Supreme Court.

In said court decision, Justice Teori Zavascki recognized the usurpation of jurisdiction of the Federal Supreme Court by the Judge of the 13th Federal Criminal Court of Curitiba, further communicating two assumptions for the illegality of such act, as exposed below:

10. As previously seen, the decision rendered by the judge subject to complaint on March 17th, 2016 (evidentiary document 4) is judicially biased, not only because of the usurpation of jurisdiction, but also – in a more evident manner – because of the lift of secrecy of the wire tapped telephone conversations, involving the complainant herein and with other authorities with privileged jurisdiction. (our emphasis)

In another excerpt, the Justice confirms the mistake made by the Objected Party of not remitting the record to the Federal Supreme Court: “Nevertheless, without remitting the record to this Court, the judge subject to complaint ordered the lift of secrecy of the conversations.” (Page 17 – Doc. 09).

The final judgment confirms all the assumptions made herein, i.e., unequivocally the Objected Party adopts a biased view in his actions, with a clear interest to harm the Movant, and is incapable of respecting secrecy and personal/government data protection rules.

We further note that the Objected Party also tapped several conversations between the Movant and his attorneys. As an example, we emphasize the following illegally tapped conversation (doc. 11):

Lula x Roberto Teixeira

26/02/2016 17:23:32

[…]

Transcript

(transcript starting on the 1’40”)

LILS: Hey, Roberto!

Roberto: Hello

Lula: Here’s the thing. We don’t have time to meet because I’m 45 minutes away from

(…)

Roberto: Ah! They told me he was going to Salvador

Lula: No, no. He’s going to Brasília.

Roberto: Ah, ok then, great.

Lula: He is going to Brasília. And then I spoke with Cristiano. He is going to call him. To say that he has to speak with someone there, that it is urgent.

Roberto: Perfect. Let’s do this, then: if you can, call him and tell him that Cris is leaving. You may tell him that Cris is leaving now and going to Brasilia.

Lula: No! But you have to call him now!

Roberto: Fine, you can tell him, ok.

Lula: Is it ok?

Roberto: Perfect.

Lula: Ok, bye.

Roberto: Ok, bye.”

We emphasize that the tapping covered the central extension line of one of the law firms defending the Movant, affecting 25 lawyers — with the full knowledge of the Objected Party (demonstrated by 2 warnings from the telephone company responsible for the wire tapping – doc. 12).

This means that the Objected Party also promoted an attack on the right to a technical defense of the Movant.

Until when will this last…

We point out that the decision which rules the wire tapping of conversations between an attorney and his client is severe to such extent that in Spain, for example, judge Baltasar Garzón was convicted by Spain’s Supreme Court in February 2012 to 11 (eleven) years of suspension from the judiciary – unanimously by the Spanish Supreme Court – for having ordered wire tappings between attorneys and their clients (a major scandal in Spain) 5. Crimen de jurisdición in Spain.

In the United States, the level of severity of this invasion is very high. It violates the Fifth Amendment, and that is why the FBI turns off the wire taps it conducts when it realizes that they involve a client and his attorney. Would the extinguished Patriot Act, now substituted by the USA Freedom Act, be in force among us?

Langley? In this case?

We emphasize that since the tapping of the phone conversations between the Movant and his attorney is arbitrary, illegal, and violates the prerogatives of the attorneys, it was severely criticized by the society and the legal community.

Note the following reports:

A typical act of Police States’, says the Brazilian Bar Association-Rio de Janeiro Chapter about Lula’s phone call tapping

After the Federal Judge disclosed, this Wednesday (16th), the wire tapping of former president Lula’s phone calls in Operation Carwash, the OAB-RJ (the Brazilian Bar Association-Rio de Janeiro Chapter) released a note condemning such wire tapping, saying the measure is “a typical act of police states”.

—————————————————————————————-

It is of utmost importance that the Judiciary Power, especially in the currently conflictive scenario, acts strictly according to the Constitution and is not led by ideological passions”, says the notice.

The organization states it is concerned about “the preservation of legality and the premises of the Rule of Law” and affirms that the wire tappings are disclosed in the press “with cuts and in a selective manner“.

The note also states that the publicity of the recordings “jeopardizes our national sovereignty and must be reprimanded, as it would be in any Democratic Republic in the world“.

Calmness must overcome political passion to preserve institutions. Democracy was reinstituted in our country after many battles, and it should not be put under risk by arbitrary actions, no matter who takes them. The ends do not justify the means”, concludes the entity6.

—————————————————————————————-

Moro breaches the professional secrecy of Lula’s attorney and discloses wire taps; by Marcos de Vasconcellos and Leonardo Léllis/Conjur

Federal Judge Sérgio Moro disclosed the telephone conversations of former president Luiz Inácio Lula da Silva, recently installed Chief-of-Staff, with president Dilma Rousseff and made public the dialogues between Lula and his attorney Roberto Teixeira. This Monday (March 16th), Moro suspended the secrecy of the investigation on Lula, giving access to wire taps of the former president’s and his attorney’s telephone numbers. Teixeira has been known to be Lula’s attorney since the 1980s. However, Moro says in his decision: “I have not identified with certainty a client/attorney relationship to be preserved between the former president and said person [Roberto Teixeira]”. As an example, the judge indicates that Teixeira is not listed as an attorney in one of Lula’s legal actions with the Federal Court of Paraná. He ignores the fact that such legal action lists the name of Cristiano Zanin Martins, partner of Teixeira in their law firm.

The person in charge of operation “carwash” with the 13th Federal Court of Curitiba says “there are indications of direct participation” of Teixeira in the acquisition of the Atibaia (São Paulo State) countryside house, which is the object of the investigations, “with the apparent use of intermediaries”, The federal judge justifies: “If the attorney himself practices illegal acts, object of an investigation, no immunity is granted to the investigation or the wire tapping”.

—————————————————————————————-

Professional prerogative

The inviolability of the attorney-client communication is provided for in Article 7 of the Lawyers Bylaws. According to the rule, the attorney has the right to “inviolability of his law firm or office, as well as of his work tools, written, electronic, telephone or telematics communication, provided that they are related to his work as an attorney”.

Roberto Teixeira has been known to be Lula’s attorney since the 1980s.

Reproduction

Cristiano Martins, Teixeira’s partner and also Lula’s attorney, states that the wire tapping and the disclosure of conversations between a client and his attorney “is of unprecedented severity”. He recalls that Moro has a history of monitoring attorneys and had already been warned by the Federal Supreme Court.

Teixeira refers to the fact that Moro was the object of administrative procedures with the National Court Council (CNJ – Conselho Nacional de Justiça) for having ordered the video recording of dialogues between prisoners and their attorneys and for having tracked the attorneys of defendants.

Monitoring an attorney means throwing away the guarantee of the adversary system and the opportunity to be heard, and jeopardizing the professional prerogatives and the attorney’s work in the case. I believe the Brazilian Bar Association cannot avoid taking all the applicable measures” says Martins.

Conflicts and social upheaval

The disclosure of the conversation between Lula and president Dilma Rousseff, says the attorney, shows a misuse of purpose regarding the collection of evidence, especially because it was conducted the day Lula was appointed chief-of-staff. “There is no any actual situation that could justify such monitoring let alone the desired publicity, clearly intended to cause conflict and social upheaval which are absolutely incompatible with the own judicial function7.

The Federal Council of the Brazilian Bar Association filed a statement in the record of Complaint 23,457 with the following content – reproaching the attack made by the Objected Party to the defense:

What is most severe, however, is that the wire tap capable of violating the prerogative of 25 (twenty-five) lawyers, members of the mentioned law firm, was authorized in a disguised manner, because the cited number was listed by the task force and accepted as if it belonged to the entity LILS Palestras, Eventos e Publicações Ltda. (doc. 03, p. 17)

(…)

The situation is severe to such an extent that in the information kindly submitted to the Federal Council of the Brazilian Bar Association, the Federal Judge who rendered the decision expressly affirmed that: ‘This Court is unaware of the wire tap of another of his (Roberto Teixeira) telephone numbers or extension line of his law firm (doc. 09, pg. 319).

However, the telephone company responsible for the telephone numbers of such law firm, in compliance with Resolution 59/2008 of the National Council of Justice, informed the Judge about the name of the actual subscriber of the wire tapped telephone number; the company informed him twice, as evidenced by the attached documents (doc. 12, pgs. 310 and 314 ).”

We would like to recall, with all due respect, yet under the inviolable right of libertas convinciandi, that it is not the first time that the Objected Party makes use of a reprehensible procedure to monitor attorneys of an accused party to weaken the defense.

Until when will this last…

This was the understanding of the Federal Supreme Court, because when judging writ of Habeas Corpus No. 95.518/PR, it verified that said federal judge was illegally monitoring the attorneys of the case. At that time, the Federal Supreme Court observed such unprecedented and unqualified procedure as exposed below:

JUSTICE GILMAR MENDES – I request that it be sent to the Regional Office of the Federal Court Administrator of the 4th Circuit and the Office of the Court Administrator of the National Court Council.

JUSTICE RICARDO LEVANDOWISKI – To the Office of the Court Administrator for the purpose of ascertaining this delay.

JUSTICE CARMEN LÚCIA (PRESIDENT) – The behavior.

JUSTICE GILMAR MENDES – These are severe facts. For example, the monitoring of attorneys.

JUSTICE CARMEN LÚCIA (PRESIDENT) – movement of attorneys.

JUSTICE CELSO DE MELLO: It seems to me, in view of the documents which substantiate this petition and the sequence of the facts related in this process, especially the severe episode of the monitoring of the arrestee’s Attorneys, incurring in a serious offense to the duty of judicial impartiality, which would appropriately be defined as a transgression to the constitutional guarantee of the due process of law” (our emphasis)

Furthermore, we emphasize that as analyzed in the initial petition of Complaint No. 23.357/DF, the beginning of “Operation Carwash” is also the illegal tapping of conversations between an attorney and his clients in 20068.

And this was also the case with the Movant. Conversely, this violation of the right to defense, as recognized by the very Federal Council of the Brazilian Bar Association, occurred in a large scale and disguised manner. The wire tap enabled spying the defense’s strategy formulated by the attorneys constituted by the Objected Party, thus confirming that the latter no longer has impartiality to rule the case.

Are we to import Langley?

II.3 Violation of the Secrecy of the Tappings and the Illegal Disclosure of the Audio Recordings

As we have already affirmed, if it weren’t enough to authorize illegal wire tappings, the Objected Party publicly disclosed its content (cf. doc. 04) although he no longer had jurisdiction over the case. And this is an acknowledged fact.

In this respect, Justice Teori Zavascki stated in his aforementioned decision about Complaint No. 23.457 (cf. doc. 08) that said lift of secrecy was conducted “immediately, without any of the precautionary measures required by law, substantiating the act through an “analysis that clearly was out of the jurisdiction of the accused judge.”

That is: said Eminent Justice, in a decision confirmed by the Full Court of our Federal Supreme Court and after confirmation on the merits, recognized the illegality of the lift of secrecy, as well as the lack of jurisdiction of judge Sérgio Moro for such act – an obvious lack of jurisdiction, which was ignored by such judge given his yearn for personally persecuting the Movant.

And Eminent Judge Teori Zavascki proceeds to comment on the attitude of the Objected Party and the damages caused, especially against the Movant:

Therefore, the public disclosure of the conversations as it happened should not be accepted, especially the conversations which are not even slightly related with the object of the criminal investigation. Against such express order, which – once again, is constitutionally valid – it is unreasonable to use as argument the public interest on the disclosure of the conversations or the fact that the affected parties are public figures, as if these authorities, or their interlocutors, had their privacies completely unprotected.

(…)

The invalidation is related to the public disclosure of the tapped conversations as they happened, that is, immediately, without considering that the evidence was not even appropriate in relation to its sole constitutional and legal purpose (“for the purpose of criminal investigation or criminal procedure”), let alone subjected to the slightest adversarial view.

At this point, we must recognize the irreversibility of the practical effects arising from the undue disclosure of the tapped telephone conversations.” (our emphasis)

Note: the very Federal Supreme Court has already recognized that the arbitrary acts of the Objected Party caused irreversible damage to the Movant.

We further note that the lift of secrecy of the tapped conversations was conducted on March 16th, 2016.

Two highly relevant facts happened on such date:

(i) the Objected Party was deprived of jurisdiction over the procedures related to the aforementioned invasive measures. Said jurisdiction was taken by the Federal Supreme Court, in view of the tapped conversations involving the President of Brazil; and

(ii) the Movant was appointed Chief of Staff to the President of Brazil.

In light of this, evidently the selective disclosure of the tapped conversations not only was ordered by a judge who lacked jurisdiction, it also was intended to foster political protests and social upheaval.

We provide the following examples:

There are protests against the government across the country this Wednesday. At least 19 states and the Federal District had protests this Wednesday (16th).

The protests were against the appointment of Lula as chief of staff and for the resignation of Dilma”.

—————————————————————————————-

Protests against the government of President Dilma (from the Worker’s Party), against the appointment of Lula as Chief of Staff and against the Worker’s Party took place this Wednesday (16th) in at least 19 states (AC, AL, AM, BA, CE, ES, GO, MT, MS, MG, PA, PR, PE, RJ, RO, RN, RS, SC, SP) and the Federal District.

The protests were peaceful, with few isolated incidents. A major part of the protesters were wearing green and yellow and carrying posters against Lula, the federal government and the Worker’s Party. There were ‘panelaços’ (people banging pots against the government) and ‘buzinaços’ (people hooting against the government) in several cities of the country.

The Palácio do Planalto announced this Wednesday, though an official note, the appointment of former president as Chief of Staff, in the place of Jaques Wagner, who will be Head of the President’s Personal Office.

The protests were convened, according to the organizers, after the announcement that Lula would be Chief of Staff and the disclosure of the wire taps of the conversations between former president Lula and his allies – including a dialogue with president Dilma, which caused an immediate reaction in the political world and in the streets9.”

The photographs below, which were taken on the day of the protests, March 16th, 2016, also show the real intention of the Objected Party:

Furthermore, such illegal disclosure which is close to a criminal act encouraged judicial assaults from the opposition’s political parties. They questioned with the Federal Supreme Court the appointment of the Movant to the position of Chief of Staff.

For example, the Brazilian Social Democracy Party (PSDB) filed Noncompliance Claim with a Fundamental Precept (ADPF) No.39110, stating that:

In this manner, the appointment of Luiz Inácio Lula da Silva as Chief of Staff to the President of Brazil, instead of being and administrative decision based on the public interest, is a measure to avoid that a person be investigated by a Judge with jurisdiction, and by the Federal Attorney’s Office who work in the relevant case, thus, the ‘natural promoters” of the legal action.

The acts being taken, through an appointment, are a real “fraud to the Constitution”, because the President of Brazil reaches illegal purposes through legal means, and this is a real misuse of purpose, as we shall demonstrate below.

The purpose of this ADPF is to attack the appointment of Mr. Luiz Inácio Lula da Silva by the President of Brazil, Dilma Vana Rousseff, to the position of Chief of Staff to the President.

Such act, as it is publicly known, is deliberately intended to undermine the criminal prosecution against the appointee, in relation to the investigation against him in the designated “Operation Carwash” and the charge filed by the São Paulo State Attorney’s Office.

Through this appointment, the President intended to grant to Mr. Luiz Inácio Lula da Silva privileged jurisdiction (foro privilegiado) with this Court (to fall under the provisions set forth in Article 102, I, “b”, of the 1988 Federal Constitution), based on the analysis that he was likely to be detained before trial by Federal Judge Sérgio Moro, based on evidence from the investigation in course and the rationale said judge has been applying throughout “Operation Carwash”.(our emphasis)

The Brazilian Socialist Party (PSB), through ADPF No. 39011, alleges:

The most evident circumstance derived from the phone call tapping authorized by the 13th Court of Curitiba within the scope of “Operation Carwash, when President Dilma expressly requests that former president Lula uses the instrument of investiture “in case of need”, i.e., according to a judgment of specific opportunity, thus clearly violating the principle of impersonality and administrative morality (princípio da impessoalidade e da moralidade administrativa).

(…)

These events – and we emphasize they are not the only ones – are enough to demonstrate that the purpose of alleged “cases of need” that justify the use of the mentioned instrument of investiture was to avoid any other acts from said judge.” (our emphasis)

The Popular Socialist Party (PPS) was more blatant in Injunction No. 3407012:

3 Ref. Record Nos. 5035882-13.2015.4.04.7000 and 5055607-85.2015.4.04.7000.

4 Badaró, Gustavo. Processo Penal, 2012. p. 354/355.


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