JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS
Treaties and Covenants such as the International Covenant on Civil and Political Rights (Decree No. 592/1992) and the American Convention on Human Rights (“ACHR” – Decree No. 678/1992). It also violates the Brazilian Constitution and corresponding infra-constitutional legislation.
On the same note, between February 19th, 2016 and March 16th, 2016, the Objected Party also authorized the wire tapping of the residential phone numbers and cell phones used by the Movant, his family and assistants. He also authorized the wire tapping of the attorney and all the legal team assisting them (doc. 03), and this is a severe assault against the constitutional rights that guarantee the inviolability of telephone calls (Federal Constitution/1988, Art. 5, XII), the opportunity to be heard (Federal Constitution/1988, Art. 5, LV), and the free practice of law.
If the severe violation of the Brazilian Constitution and the laws were not enough, by promoting the mentioned wire taps, the Objected Party – after losing jurisdiction to judge the cause (which was transferred to the Federal Supreme Court) – boldly rendered another decision in the record, expressing his judgment of value and – this is literally unbelievable – ordered the lift of secrecy of the recorded conversations, authorizing their disclosure, as seen in the press (doc. 04). It is hard to believe that such action may be conducted (at least up to the present time) without any consequence…
Said conduct, despite being able to be examined in comparison with the fundamental precepts of Articles 8 and 10 of Law 9,296/96, and Article 3, a and b, and Article 4, a, b and h, of Law 4,898/65, had purposes other than those of the case – encouraging political protests and causing social upheaval, in addition to creating obstacles for the Movant to take office as Chief of Staff following his appointment to such position by Brazil’s President, who has freedom to appoint for office in the same way a judge has freedom to render judgments…
We must emphasize that the acts practiced by the Objected Party are arbitrary and harmful to the extent that the Movant’s wife, sons, daughters-in-law and grandchildren found themselves obliged to file with the Federal Court a suit for damages against the Government1, with the possibility of reversion by the Brazilian State against the offender who directly practiced the harmful act (doc. 05).
Furthermore, the irregularities practiced by the Objected Party, with the necessary permissions, as exposed above, were also subject to measures taken by the Movant and his family on June 16th, 2016, with Brazil’s Attorney General (doc. 06) and are pending analysis. Therefore, the Movant and the Objected Party are opposing parties in certain proceedings, and when a person has the power to judge his opposing party, the result may be known in advance…
This is the justice of war, in which the enemy is judged.
We further note that other acts practiced by the Objected Party during “Operation Car Wash” effectively support the clear lack of impartiality based on Brazilian Court precedents and International Court precedents.
The foregoing exposition shall be demonstrated below.
ACTS DEMONSTRATING THE CLEAR SUSPICION IN QUESTION
The background of “Operation Carwash” has successive, unreasonable and endless extensions of the jurisdiction of the Judge of the 13th Federal Criminal Court of Curitiba, associated with an undue suspension of the filing of other proceedings before the Objected Party, to have him exclusively focus on the proceedings to said Operation. A Judge with national jurisdiction and only one legal action…
Several other invasive acts took place in such Operation, violating the constitutional guarantees of the involved parties, in addition to violating International Treaties and Covenants Brazil is a signatory to – which contain international rules which the Country has abided by with the international community.
The visibility and fame achieved by Operation Car Wash, thanks to the – questionable – alliance with segments of the press, made evident even in books which have been published and whose launch were attended by the Objected Party, binds the latter to defending the practiced acts and published points of view, including those which clearly constitute abuses and, most of all, to defending the conclusion which has already been announced (or implied) to the general public, and which evidently refer to the Movant.
This situation alone indicates the biased view of the judge receiving such unbelievable — and permanent — extension of jurisdiction.
If that weren’t enough, other actual facts involving the Movant leave no doubt about the suspicion affirmed herein.
We expose below the mentioned acts.
II.1 Illegal Bench Warrant of the Movant
On March 4th, 2016, the Movant – and his family –, was the target of invasive measures ordered by the Objected Party (cf. doc. 02).
The Objected Party, within the scope of phase 24 of “Operation Carwash”, ordered the search and seizure of objects and documents not only in the homes of the Movant and his family, but also in Instituto Lula and premises of the Metalworker’s Union of São Bernardo do Campo. He also ordered the bench warrant of the Movant to provide testimony, without any prior subpoena.
Certain persons believe they have limitless powers…
In fact, the media scandal surrounding the police procedure of March 4th, 2016 was evident because on that night some journalists already knew about what would happen, indicating an evident selective leak of the procedure so that the pressure by the media would avoid any opposition to the illegal act. One may commit arbitrary acts, as long as under public applause, as Maquiavel would say…
An unarguable and involuntary witness of such event, journalist Diego Escostesguy from the magazine Época, published by Organizações Globo, had already predicted the fact since two in the morning of that same day:
“Almost two in the morning. A few hours to dawn, which has everything to be special, full of peace and love.”
Really? And how did Escostesguy become aware of such event? Did he go to the Temple of Apollo and consult with Pythia, the oracle? Or did someone unreliable violate the secrecy protected by the law? Traitors…..traitors always do wrong…
During the unfolding of the events, the news reports were just as intense, and were covered by the largest national and international press vehicles2,, with the deliberate and planned exhibition of the Movant’s bad image.
The search and seizure warrant (record No. 5006617-29.2016.4.04.7000 – doc. 02) was accepted by the Objected Party with a substantiation that not only is incorrect, but clearly reveals an early judgment of value, as we may conclude from the excerpts below:
“In all this context, the prosecutor asks in its manifestation, if the former president was unaware of these facts, since on the period that it occurred, he was Chief of the Federal Public Administration, and therefore responsible for giving the last word on the political subdivision of “Petrobras”, and beneficiary, at least indirectly, of the illicit financing of the “Worker’s Party”.
The issue is complex and its resolution is unfeasible at this time, before the deepening of the investigations.
However, I note that, in the criminal scheme that victimized Petrobras, it has emerged more recently some indications of the possible involvement of former president Luiz Inácio Lula da Silva.
In his manifestation, the prosecutor raises suspicions about the payments made by contractors involved in the criminal scheme for Instituto Lula and for LILS Palestras e Eventos, both controlled by the former President.
At the request of the prosecutor, I authorized the breaking of the tax secrecy of Instituto Lula (decision of 07/12/2015, event 3, on procedure 5055607-85.2015.4.04.7000) and LILS (decision of 01/09/2015, event 3, on procedure 5035882-13.2015.4.04.7000).
One cannot conclude on the unlawfulness of such transfers, but it should be recognized that these are great values for donations and lectures, which in the context of the criminal scheme of Petrobras, casts doubts on the generosity of the investigated companies and authorizes at least the deepening of investigations.
Despite the suspicions regarding these payments, the most relevant evidence collected at this time are apparently related to the perception of favors by the former president coming from the contractors involved in the criminal scheme.
The apparent concealment and deception of equity by the former president, the apartment and the ranch, reforms and purchases of goods and services, in large amounts, by contractors involved in the criminal scheme of Petrobras, need to be thoroughly investigated. Also the last fact, the storage of former President goods, with the significant costs borne by OAS, need better research.
Maybe the deepening of the investigations can clarify the relations of the former president with the contractors and the motives of the apparent concealment and deception of equity and of the benefits paid by the contractors in relation to both properties, and also confirming or not the lawfulness of the payments made to Instituto Lula and to LILS.
Therefore, there is probable cause to the execution of the intended
search and seizure warrant.”
Illegal acts and partiality of the aforementioned decision are evident. The extreme measure in question was authorized only based on assumptions made by the Federal Attorney’s Office and fully accepted as facts by the Objected Party. The public faith of the real estate registry was canceled by the Objected Party. However, the properties registered therein are under the domain of a third party… But, as previously mentioned, not even the legal presumption of truth, juris et de jure, is rid of such bold and conflictive persecution.
Much worse than that is the aggressive bench warrant of the Movant. An illegal violation of his status libertatis!
The Movant received a court order for a bench warrant to provide testimony to the police, with the subsequent restriction of his freedom, without having ever received a notice issued by the Objected Party (under Article 260 of the Code of Criminal Procedure, and even in the case of noncompliance with a served notice, such bench warrant would be arguable).
The argument of the Federal Judge to substantiate the — legally inexistent —request for a bench warrant (record No. 5007401-06.2016.4.04.7000 – doc. 07), was:
“Moreover, the nuances of the actual case reveal that a bench warrant to provide testimony is appropriate to preserve the public order, which also includes the safety of the investigated parties, the population and the responsible authorities by taking testimonies.
It is well-known and undeniable that LULA is a political leader, and because he was the president of the country for two terms of office, the investigations of the criminal acts he supposedly practiced has led to popular protests of all kinds, for and against him.
121. Therefore, if the FEDERAL ATTORNEY’S OFFICE or the FEDERAL POLICE designates another testimony of the former president scheduling the date of such act in advance, the occurrence of confrontation between people for and against LULA, and the need to use the force of the Military Police, may occur again.
Accordingly, in view of the foregoing exposition, the desired bench warrant is appropriate to avoid the disturbance of the public order and protect the national security.
We are aware that, in the course of the testimony, there might be some social disturbance. However, certainly disturbance is less likely to occur if the date and place of the testimony is not disclosed in advance and broadly. Certainly, with the normal functioning of the institutions, the investigation of this and other cases will proceed with or without social upheaval. Nevertheless, public security is a right and the responsibility of everyone, thus prudence is needed to minimize the risk to public security in the exercise of the investigative duty.
In this sense, the desired bench warrant is necessary to allow the investigated parties to state their versions about the investigated facts.
123. Further note that the mentioned measure does not imply in a real restriction to the freedom of movement, since the only purpose of such measure is to take a testimony. Even with a bench warrant, the investigated parties have the right to remain silent.
In this sense, the desired bench warrant is appropriate, because it does not fully restrict the freedom of movement, and preserves the right to remain silent, and even in light of poignant elements of evidence, there is the effort to guarantee a specific time to allow the investigated parties to provide their own explanations of the facts.
124. Also applicable to this case is the discretionary principle, since the public declarations of the investigated parties are not coherent with the gathered evidence. Formalizing the act to provide information also represents the time during the investigation in which they are able to state their own versions of the facts”. (our emphasis)
The pretext for the requirement by the Federal Attorney’s Office was the preservation of the public order and — astonishingly — the avoidance of popular protests and assurance of the safety of the Movant. This justification can only be received as scorn or irony…
These foundations, however, are evidently unreasonable, because in all actions in which the Movant was called to testify — and which he attended in every occasion — the government agents were the ones who leaked the details of the time and place, and this apparently happened again in relation to the measure described herein.
Before proceeding, we emphasize that the Movant, before the judicial violence in question, had been summoned on at least 4 (four) occasions to provide clarifications and complied with the summons in every occasion — providing information when the legal action was not under secrecy of justice.
Furthermore, restricting the freedom of the Movant to assure his safety is a “boutade” rather than a serious substantiation involving the situation discussed herein.
Regardless of the inappropriate foundation to restrict the freedom of an individual as a measure to protect the “public order”, the Objected Party accepted the allegations by the Federal Attorney’s Office (cf. doc. 02), making another incorrect judgment of value to render following decision:
“Although the former president deserves all our respect, by virtue of the dignity of the position he occupied (without undermining the respect that is due to any person), this does not mean that he is immune to investigations, and there is justification for such, as exposed by the Federal Prosecutors and extensively grounded on the decision of 24/02/2016 (event 4) on Procedure no. 5006617-29.2016.4.04.7000.
In a deposition through bench warrant, there are smaller chances that something similar occurs, given that those protests do not appear to be completely spontaneous.
With these observations, usually unnecessary, but relevant herein, I partly grant the requests of the Federal Prosecutors to issue a bench warrant to the deposition of former president Luiz Inácio Lula da Silva”
Although the Movant appeared before the police authority under a bench warrant, despite the restriction of his freedom of movement, the standard media took place once again, showing that the Objected Party’s concern did not exist in practice.
Pure sarcasm — or cynicism?
“How long will your abuses last”…. Rome’s Commander and Consul Marcus Tullius Cicero reminds…. Lucius Sergius Catilina!
The images below speak for themselves, showing that, in fact, the bench warrant of First Movant, especially under the terms of the decision, was a success. A true show, capable of manipulating the public opinion toward the purposes of the persecutors.
3 The Movant in Congonhas Airport – SP after providing testimony under a bench warrant.
4 The Movant leaving the PT’s directory in São Paulo on Friday, after speaking about the operation which targeted him.
5 Protesters at the Congonhas Airport – SP at the time of the Movant’s bench warrant.
1 Record Nos. 0009107-23.2016.4.03.6100 and 0009106-38.2016.4.03.6100.
2 Example: http://www1.folha.uol.com.br/poder/2016/03/1746933-ha-falsa-controversia-em-conducao-coercitiva-de-lula-diz-forca-tarefa.shtml, http://veja.abril.com.br/noticia/brasil/pf-deflagra-nova-fase-da-lava-jato-contra-lula, http://g1.globo.com/politica/blog/matheus-leitao/post/depoimento-de-lula-durou-mais-de-tres-horas.html, http://veja.abril.com.br/noticia/brasil/em-nota-moro-justifica-a-conducao-coercitiva-de-lula, http://www1.folha.uol.com.br/poder/2016/03/1746231-policia-federal-faz-operacao-na-casa-do-ex-presidente-lula-na-grande-sp.shtml, http://www.bbc.com/portuguese/noticias/2016/03/160304_lula_operacao_aleteia_policia_fd, http://politica.estadao.com.br/blogs/fausto-macedo/veja-a-repercussao-da-operacao-contra-lula-na-imprensa-internacional/, http://www.em.com.br/app/noticia/politica/2016/03/04/interna_politica,740213/pf-explica-a-conducao-coercitiva-do-ex-presidente-lula-acompanhe-em-t.shtml.