JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS
TO THE HONORABLE FEDERAL JUDGE OF THE 13th FEDERAL CRIMINAL COURT OF CURITIBA/PARANÁ STATE
“There is no justice without a judge’s independence and unbiased view.”1
“The impartiality of a legal body is a supreme principle in a lawsuit”2
Record No. 5006597-38.2016.4.04.7000/PR
LUIZ INÁCIO LULA DA SILVA, Brazilian, married, bearer of ID Card (RG) No. 4.343.648, enrolled with the National Register of Individual Taxpayers (CPF/MF) under No. 070.680.938-68, resident and domiciled at Av. Francisco Prestes Maia, nº 1.501, bloco 01, apartamento 122, Bairro Santa Terezinha, São Bernardo do Campo (SP), respectfully submits to you, in person and through his underwritten attorneys (doc. 01), based on Articles 95, I and 254, I of the Code of Criminal Procedure and other legal precepts, opposition against Federal Judge SERGIO FERNANDO MORO, from the 13th Court of the Judicial District of Curitiba,
SUSPICION MOTION (EXCEÇÃO DE SUSPEIÇÃO)
for the reasons exposed below.
He therefore makes such request to you. Please receive, process and finally decide over it, in order to recognize the cited suspicion and submit the record to the pertinent legal substitute or order the remittance of the record to the Higher Court, pursuant to the law.
We postulate herein to the Higher Court an analysis of the supersedeas effect to be handled as an Exception (CPC, Art. 146, paragraph 2, item II).
From São Paulo to Curitiba, July 5th, 2016.
LUIZ INÁCIO LULA DA SILVA
Evident lack of impartiality of the judge who is the Objected Party herein to judge the Movant.
Search and seizure warrant conducted in the residence and office of the Movant. Bench warrant of the Movant to provide testimony, without prior notice. Violation of the International Covenant on Civil and Political Rights (Decree 592/1992). Violation of the American Convention on Human Rights (Decree 678/1992). Violation of the Federal Constitution and of the infra-constitutional law. Authorization to tap the telephones of the Movant, his family and assistants, and even of one of his attorneys (and all the legal team) assisting him. Monitoring of the defense strategy. Inadmissibility. Unprecedented violence and abuse. Recidivism. Offense to the constitutional guarantees of the inviolability of telephone communications (CF/1988, Article 5, XII) and the right to the opportunity to be heard (CF/88, Article 5, LV). Invasive measures and that required a more thorough examination of the facts and possible charge which were used at the beginning of the procedure, showing bias toward the prosecution thesis. Abuse of the use of provisional remedies, subverting the guarantee of the presumption of innocence. Proven partiality.
Lift of secrecy of the dialogues recorded without legal provisions. Usurpation of jurisdiction of the Federal Supreme Court. Judgment of value in the body of the decision which ordered the lift of secrecy of the recorded dialogues, and the subsequent disclosure of the content of these conversations. Violation of Article 8 of Law 9,296/96. Theoretical likelihood of application of the rule of Article 10 of Law 9,296/96 and of Articles 3, a and b, and 4, a, b and h, of Law 4,898/65. Purposes other than those in the case. Incentive to political protests and social upheaval. Obstacles for the Movant to take office as Chief of Staff following his appointment to such position.
Provision of information to the Federal Supreme Court. Express recognition of the practice of illegal acts and “apologies” from the Objected Party to the Federal Supreme Court. Admission of a pre-judgment of the case with the spontaneous and gratuitous imputations of conducts that may be defined as a crime to the Movant, including in relation to the topics addressed in the actions which returned to his jurisdiction. Excerpts with pre judgment for conviction: “There is no evidence that the authorities with privileged jurisdiction would have effectively accepted the undue requests of the former president to interfere on his behalf with the public institutions to obstruct the investigations”; “There are other dialogues of former president Luiz Inácio Lula da Silva attempting to or trying to obstruct or unduly influence justice. There are also other dialogues which reveal the intention of intimidating the authorities responsible for the investigation and the case”; “Although these three wire-tapped dialogues are relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since they show the purpose of unduly influencing or intimidating the Prosecutor, the record does not provide any evidence or indication that the authorities with privileged jurisdiction have accepted his undue requests, consequently there was no reason to remit the case to the Federal Supreme Court.”; “The former President indicates he knew in advance that a search and seizure warrant would be conducted in his home and in the home of his associates and, apparently, reveals the intention of calling federal congressmen to wait in the location of the conducted procedure to apparently obstruct it or to embarrass the federal police agents”; “In a dialogue on February 27th, 2016, between Luis(sic)Inácio Lula da Silva and senator Luiz Lindbergh, the former president once again shows his intention of using congresswomen to intimidate the Prosecutor in charge of the investigations against him in the scope of the BNDES and to intimidate Brazil’s Attorney General”; “Even the excerpt in which the former president attacks the Federal Supreme Court is relevant, since it is part of a previously mentioned context to obstruct, intimidate or attempt to unduly influence the judiciary”; “Therefore, restricting the judicial-criminal scope of the dialogue to the former president’s conduct, there was no reason to remit the case to the Federal Supreme Court. Nevertheless, due to the relevance of such dialogue to the investigated party, the protection to the right to privacy does not apply, since it is judicially and criminally relevant to the former president”; “On the other hand, there was the wire tapping of several dialogues suggesting that Lula’s acceptance to the position of Chief of Staff may have had the purpose of protecting him against criminal investigations”; “Usually, taking or refusing office as chief of staff is irrelevant from a judicial-criminal perspective. However, in the previously mentioned context of obstruction, intimidation and undue influence of justice, the former president’s acceptance or refusal gained judicial relevance, at least for him”; “(…) Although it appears to be ordinary, the dialogue indicates that the former president’s family has the power of disposal over the Atibaia property, and not Fernando Bittar, its formal owner, which suggests he is an intermediary party.”
Successive extensions of jurisdiction. Unusual suspension of distribution of proceedings to the Objected Party, with his exclusive focus to the proceedings and procedures related to the operation. Judge working exclusively in one case “pro tempore”. The Objected Party’s close relationship with certain segments of the press which are knowingly against the Movant. The press knows the content of the decisions before the defense. Publication of 3 (three) books about the Objected Party and “Operation Car Wash”. Systematic leak of the Movant’s personal data. Participation in political events and/or public opinions expressly adverse to the Movant. The Objected Party’s name appears in voter preference polls for presidential elections, running against the Movant. Article published by the Objected Party about operation “Mani Pulitti” in Italy, advancing and indicating the efficiency of heterodox means of investigation jointly with the prosecuting party, which are currently being used in the operation. Systematic use of the public opinion as a shield against complaints of abuse and illegal acts committed “in the name of the good.”
International rules: Guarantee of a fair and impartial trial. Article X of the Universal Declaration of the Rights of Man and of the Citizen. Article 14, item I, of the International Covenant on Civil and Political Rights. Article 8 of the American Convention on Human Rights.
Parameters of domestic precedents: Precedents of the Federal Supreme Court and the Superior Court of Justice. Impossibility of advancing the trial and showing tendency toward the positions defended by either parties. Permission to remove the judge when his acts and statements make evident his interest in judging in favor of the prosecution or his willingness to convict (STJ, HC 146.796/SP). Indispensability of Impartiality of the judge (STJ, RESP 245.629). Suspicion as a circumstance of subjective nature which generates presumption related to the partiality of the judge (STJ, RESP 600.752/SP). A judge cannot show bias toward prosecution or act as the advocate of the “criminal law of the enemy”, an authoritarian view which invalidates public liberties. (STF, HC 85531).
Parameters of international precedents: European Court of Human Rights (ECHR): Apitz Barbera vs. Venezuela: a judge must act in an objective manner and offer sufficient guarantees to settle any questions regarding the lack of impartiality. Buscemi vs. Itália: demand for utmost discretion from judicial authorities. Piersack vs. Bélgica: abstention of a judge from ruling a case due to reasons which legitimately question his impartiality. Courts should inspire trust in individuals. European Court of Human Rights: Cubber vs. Belgium: if there is legitimate reason to question impartiality, any judge should be removed from a case. Risk of having a pre-established opinion. US Supreme Court: Estes vs. Texas: an intensified public cry results in prejudice. Equity requires absence of partiality.
Necessary acceptance of motion for suspicion, with remittance of the record to the substitute judge (CPP, Art. 99).
— I —
OBJECTO OF THIS EXCEPTIO SUSPICIONIS
The purpose of the measure herein is to affirm the suspicion of Judge Sérgio Fernando Moro, of the 13th Federal Criminal Court of Curitiba, Paraná State, referred to herein as the Objected Party, for the cognition of the cause and its incidents, due to the well-known and manifest lack of impartiality for trial. Moreover, he is not the natural judge for the cause, unless he receives “national jurisdiction”, beyond the real limits of his jurisdiction, extending it urbi et orbi.
As it is publicly well-known, the designated “Operation Carwash” is in course, and the Objected Party has been in charge of it, in a blatant manner. This Operation gathers a series of investigative provisional remedies, investigations and legal actions whose object is to investigate alleged irregularities and criminal acts practiced in Petrobras and their potential developments.
In this context, former president Luiz Inácio Lula da Silva, the Movant herein, had his name – directly and unduly – mentioned in phase 24 of the blatant and media-focused “Operation Carwash”, which began on March 4th, 2016.
Priorly, due to the statements made by the Objected Party himself or the designated “Car Wash Task Force”, artificial references were made to the Movant, making it clear that since the beginning he was chosen as the major target of the persecutors from the Federal Police and the Federal Attorney’s Office and (why not) the Judiciary — in a clear and reproachable attempt to use the criminal law of the offender instead of the criminal law of the fact: firstly, the Movant was elected as target and from there on the successive efforts to produce evidence that might lead to the identification of the practice of a crime.
An evident lack of impartiality to judge the case, at least in relation to the Movant and his family, could be deducted from a relevant and clear background and an endless succession of unnecessarily severe public acts, practiced by the Objected Party against the Movant in the course of the proceedings.
In fact, in spite of some merits that the Objected Party may carry (if we take him as a judge “who fights the evil” instead of a fair and impartial judge) in actions to combat corruption, “Operation Car Wash”, as it is well-known, has extensively used provisional detentions of several natures to restrict the freedom of the Movant, as a way to achieve plea bargains, even through unreasonable accusations3, and has motionless observed selective leaks (of information always prone to the prosecutors) to manipulate the public opinion and, most of all, to damage the political image and the reputation of the Movant. This has occurred repeatedly in recent times.
Furthermore, on March 4th, 2016, the Objected Party ordered, within the scope of Phase 24 of “Operation Carwash”, (i) search and seizure warrants in several companies of the Movant and his family, and (ii) the bench warrant of the Movant to provide testimony, without any prior subpoena — restricting his freedom from approximately 6 (six) hours without any legal foundation (doc. 02).
Such acts, not only are intrinsically severe they violate the international rules Brazil opted to abide by when subscribing to International
1 PÉREZ, Jesús González. El derecho a la tutela jurisdicional, 2001, p. 164.
2ALONSO, Pedro Aragoneses, Proceso y Derecho Procesal, 1997, p.127
3 “2. In addition to preserving evidence, the element which authorizes the preventive detention, consistent with the convenience of the criminal evidentiary phase, in view of the several attacks against the country, has as important function convincing the offenders to collaborate with the finding of illegal acts, and this may be the case here, such as it has been the case in many other examples.” – 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.