JOSÉ ROBERTO BATOCHIO
“Quarto: all the sectors of the Brazilian society have begun speculating about the likelihood of the detention of former president Luiz Inácio Lula da Silva, a fact that is publicly well-known;
In fact, note that, despite making use of legal means, given the discretionary power to freely appoint for a position, the real purpose of the accomplice authority is different from what was alleged, i.e., to remove from the jurisdiction of judge Sérgio Moro the examination of the request for the detention of former president Luiz Inácio Lula da Silva.” (our emphasis)
Finally, the PSDB filed Injunction No. 340711, alleging that:
“The news reports included herein, the complaint and the request for detention filed by the São Paulo State Attorney’s Office against the Defendant, as well as the search and seizure warrant and the bench warrant against him prove such investigations and indicate the level of severity and seriousness of the criminal procedures against the first Defendant. In view of this scenario and the eminent risk of being detained, the first Defendant converts a denial into acceptance of the appointment to become Chief of Staff.
By assuming this position, the first Defendant has the benefit of the jurisdiction conceded due to his office, under Article 102, I, c of the Federal Constitution. In this context, clearly the original purpose of the Defendants is to manipulate the course of the criminal actions with the Judiciary Power, to provide specific jurisdiction to former president Luiz Inácio Lula da Silva, an evident misuse of purpose of the practiced administrative act, consisting in the ministerial appointment, as well as an evident intention of obstructing Justice.
Also in relation to the foregoing, the evidence of abuse of power is the mere act of resignation, in view of the circumstances of the fact. In this case, as demonstrated above, the purpose of the appointment is to avoid that Mr. Luiz Inácio Lula da Silva pays for the crimes that he allegedly committed.
It has been known that the president of Brazil, Dilma Rousseff, her main advisors and political allies have sought measures to hinder the investigative procedures involving Luiz Inácio Lula da Silva within the scope of the designated “Carwash Operation”, in course with the 13th Federal Criminal Court of Curitiba, with the sole purpose of jeopardizing the decisions by the natural judge of the case.
Appointing Luiz Inácio Lula da Silva as Chief of Staff, the act we question herein, has as sole purpose the application of the rule provided for in subparagraph c, item I, Article 102 of the Federal Constitution, which guarantees privileged jurisdiction to the Ministers of the Government and the Justices of the Federal Supreme Court.
Accordingly, the appointment of Luiz Inácio Lula da Silva as Chief of Staff to the President of Brazil, instead of being an 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 act in “Operation Carwash”.
The acts being taken, through the ill-fated appointment of Luiz Inácio Lula da Silva, are a real “fraud to the Constitution”, because the President of Brazil effectively reaches illegal purposes through legal means, and this is a real misuse of purpose.”(our emphasis)
It is easy to observe that the disclosure of the confidential conversations not only caused social upheaval, but it also made evident the prejudgment which has been established against the Movant, and it is clear to everyone that undoubtedly the criminal procedure is mere masquerade, since the decision was made long ago, according to the “the rationale he [the judge] has been applying throughout “Operation Carwash.”
Therefore, one cannot deny that the Objected Party’s conduct sought to demonize the Movant before society, by disclosing conversations of private and personal content.
And the sought result was achieved, as exemplified below:
We further note that the conversation between the Movant and the President of Brazil had been tapped against a court order — and not only without a court order.
See the facts below.
Note that at 11:12 a.m. on March 16th, 2016, the decision ordering the end of the tapping procedure was attached to the investigation process (doc. 13). Such decision also ordered that it be urgently informed to the Federal Police, as shown below:
“Therefore, I determine its interruption. Give notice to the police authority with urgency, including by phone.
Notice to the Federal Prosecutor’s Office for requests.
Curitiba, March 16th, 2016”
At 11:44 a.m., the Head of Office Flavia Cecília Maceno Blanco certifies that she notified the Chief Police Officer of the Federal Police about the decision (doc. 14):
I certify that I have called up by phone the Chief Police Officer of the Federal Police, Mr. Luciano Flores de Lima, regarding the decision rendered in event 112.”
However, the conversation between the Movant and the President of Brazil was tapped at 1:32 p.m. on March 16th, 2016 (doc. 15):
Lula x Dilma Rousseff
Maria Alice: Moraes, good afternoon, this is Maria Alice, of the personal office of President Dilma.
Therefore, it is clear that no judicial authorization was given to conduct the tapping of the telephone conversation in question. Actually, the Federal Supreme Court has already declared that wire taps are invalid in the scope of Complaint 23,457, in light of the indicated vice.
In spite of that, the Objected Party, as previously mentioned, also made public this illegally wire tapped conversation.
Therefore, it is possible to conclude that the Objected Party lifted the secrecy of the — legal and illegal — telephone tapping with a purpose different from that of the legal proceedings, using them, as previously mentioned, to depreciate the Movant, and ended up promoting political movements and creating social upheaval, with disregard for the Federal Constitution.
II.4 – The information provided by the Objected Party to the Federal Supreme Court
The information provided by the Objected Party to the Federal Supreme Court leave no doubts about the pre-judgment he conducted and, most of all, about his lack of impartiality.
In fact, when providing information on March 29th, 2016, the Objected Party recognized that the lift of secrecy caused “unnecessary embarrassments”, and “respectfully apologized” to the Federal Supreme Court (and not to the Movant, who was jeopardized the most:
“In view of the controversy arising from the lift of secrecy and your decision, I understand that the reasoning used at that time may seem incorrect, or even if it were correct, it may have caused conflicts and unnecessary embarrassments. It has never been my intention to cause such effects when rendering the mentioned decision on March 16th, and I hereby respectfully apologize for such effects to the Federal Supreme Court (our emphasis).
At that same occasion, Moro made a judgment of value in relation to the Movant — even making several imputations of conducts that may be defined as crimes against the latter. Moreover, he even made a judgment of value about the property of the Santa Bárbara countryside house, located in Atibaia (São Paulo State) — affirming that Fernando Bittar would be the “formal owner” and the “intermediary party”:
“On the other hand, the dialogues with the same authorities with privileged forum do not provide evidence that said authorities with privileged dialogues would have effectively accepted the undue requests made by the former president to interfere on his behalf with the public institutions in order to obstruct the investigations”
“There are other dialogues in which former president Luiz Inácio Lula da Silva attempts or tries to obstruct or unduly influence justice. There are also dialogues in which he reveals his intention of intimidating authorities in charge of the investigation and the case”.
“Although these three dialogues are relevant in the judicial–criminal scope to former president Luiz Inácio Lula da Silva, since they indicate 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.
“In a dialogue on February 27th, 2016, between Luiz Inácio Lula da Silva and Rui Goethe da Costa Falcão, the former president reveals that he knew beforehand about the search and seizure warrant to be conducted in his home and in the homes of his associates and, apparently, reveals the intention of calling federal congressmen to wait in the location of th search, to apparently obstruct or embarrass the federal police agents”
“Although this intercepted dialogue is relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since they indicate the purpose of intimidating or obstructing justice, the record provides no evidence or indication that the authorities with privileged jurisdiction, the innominate federal congressmen, would have accepted his undue request, and there was no reason to remit the case to the Federal Supreme Court”.
“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”
“Although this intercepted dialogue is relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since they indicate the purpose of influencing, intimidating or obstructing justice, the record provides no evidence or indication that the authorities with privileged jurisdiction would have accepted his undue request, and there was no reason to remit the case to the Federal Supreme Court”
“Although this intercepted dialogue is relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since they indicate the purpose of influencing, intimidating or obstructing justice, in relation to Brazil’s president, she has not acted in any way as to agree with such purpose, and there was no reason to remit the case to the Federal Supreme Court. Nevertheless, due to the judicial and criminal 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”.
“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”
“Although this intercepted dialogue is relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since they indicate the purpose of unduly influencing the court, by using the political system, there is no indication or evidence that the then Chief of Staff accepted such request, or that Justice Rosa Weber, who is known for her high honesty and integrity, as I previously mentioned in the questioned decision, was even contacted. Moreover, it is important to note that she denied the request to favor the former president in ACO 2822. 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”
“Although the tapped dialogue is relevant in the judicial-criminal scope to former president Luiz Inácio Lula da Silva, since it contains another indication that he would be the real owner of the property, it is irrelevant to the mayor of Rio de Janeiro. 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”. (our emphasis).
By noting the aforementioned excerpts alone, we note that the Objected Party on his own motion made several accusations against the Movant in relation to an alleged practice of acts attempting to obstruct justice.
How can one accept a judge who acts as a prosecutor?
If that were not enough, he anticipated his view on the ownership of the Santa Bárbara countryside house, which is the object of an investigation pending before this Court!
The same conduct was observed in relation to the complementary information provided by the Objected Party to the Federal Supreme Court on April 4th, 2016 and April 22nd, 2016.
Such facts only but confirm that the Objected Party is biased to judge the Movant!
II.5 – Complaint with Brazil’s Attorney General
In view of all the arbitrary acts committed by the Objected Party, a complaint of abuse of power was filed on June 16th, 2016 with Brazil’s Attorney General. This measure was filed by the Movant and his family (cf. doc. 06).
Summarizing, the arbitrary acts the Movant was subjected to can be translated into: a bench warrant with restriction of his freedom of movement, without prior summons; illegally intercepted telephones and undue disclosure of its content – including conversations with his attorneys – despite the express legal prohibition of such conduct. In addition, the home and office of the Movant were the targets of a search and seizure warrant ordered through a decision without any legal requirements – as repeatedly informed herein.
These conducts may have circumvented, in theory, Articles 7.2, 8.1, 11, and 25 of the American Convention on Human Rights, and Articles 3, a and b, and 4, a, b and h, of Law 4,898/65, and might have constituted abuse of power provided for in the same rule and an illegal act provided for in the fundamental precept of Article 10 of Law 9,296/1996.
At the end of the complaint, the Movant and his family request that the Chief Prosecutor of the Federal Attorney’s Office acknowledge and evaluate the exposed matters, employing the legal measures within his responsibility, to fully investigate the facts, pursuant to the law, including necessary acknowledgment and authorization by the Federal Regional Court of the 4th Circuit.
II.6 – Evocative Books which have been launched about “Operation Car Wash”
Although “Operation Car Wash” has not been concluded yet, up to now 3 (three) books were launched about the topic.
“Sérgio Moro“, by Joice Hasselmann3, Editora Universo dos Livros:
“Sérgio Moro – o homem, o juiz e o Brasil“, by Luiz Scarpino, Editora Novas Idéias:
“Lava Jato”, by Vladimir Netto, Editora Primeira Pessoa:
We note the last-mentioned book, which begins with and highlights the fact that the alleged criminal scheme hit the “heart of the Republic” with the bench warrant of the Movant, and whose launch was attended by the Objected Party in Curitiba (Paraná State) on June 21st, 2016. According to a report, the event became the “celebration between Moro and Operation Car Wash”:
We further note that the company Netflix has acquired the copyrights of such book, to launch a short series created and directed by film maker José Padilha, with launch expected in 2017. 4 The book places the Objected Party in a prestigious situation due to his work in the Operation, especially his work against the Movant, as is clear in chapter 6, which is dedicated to the former, elected “Personality of the Year”, and in chapter 12, entirely dedicated to the latter and entitled “Lula in the center of Car Wash. ”
Definitely, these facts, as previously mentioned, bind the Objected Party to defending the acts practiced in “Operation Car Wash”, including the arbitrary acts against the Movant, and to not frustrating the expectations created by society in relation to the latter.
It is another clear evidence of the lack of required impartiality by the Objected Party.
II.7 – Participation in political events and/or in events with a public expressly against the movant
In the course of “Operation Car Wash”, the Objected Party has participated in several political events, which not only are unusual in a Judge’s agenda, are expressly antagonistic to the Movant.
In December 2014, the Objected Party participated in an event sponsored by Organizações Globo — a media company which has faced several journalistic litigations and legal issues with the Movant and his political party — where he received a “Personality of the Year” award:
12/2014: in an award ceremony by Rede Globo, Moro is elected “Personality of the Year” and receives the award from the heirs of Roberto Marinho (the founder of Organizações Globo)
We emphasize that Organizações Globo and its members have systematically made defamatory affirmations — with undue judgment of value — in relation to the Movant and the future of “Operation Car Wash”. They are outspoken political antagonists.
There are several lawsuits filed by the Movant against this business group, due to such group not responding to requests for response (pedidos de resposta) and to news reports that morally hurt the Movant, thus subject to suit for damages.
The Objected Party also participated several times in events promoted by Mr. João Dória Júnior, who is the PSDB pre-candidate to be the Mayor of the city of São Paulo. In addition to being a political opponent, Mr. João Dória Júnior made defamatory affirmations in relation to the Movant, even saying that he would “speak with Moro” about a presumed detention (of the Movant). A criminal proceedings (provisional remedy) is in course to investigate such circumstance (Doc. 18):
09/2015: with João Dória Jr. and Fernando Capez (both from the PSDB party), Moro gives a lecture in an event promoted by LIDE in São Paulo
01/2016: Moro once again gives a lecture in an event promoted by LIDE in São Paulo
03/2016: Moro gives a lecture to LIDE’S Paraná Branch, in Curitiba
The Objected Party also participated in several events promoted by the publishing company Editora Abril, which for over 30 years has published libels and defamations against the Movant, and consequently is the target of several legal actions filed by the latter (Doc. 20):
04/2016: lecture promoted by the magazine VEJA (Editora Abril)
09/2015: lecture promoted by the magazine Exame (Editora Abril)
Other meetings made clear the Objected Party’s political-partisan position — always openly opposing to the Movant:
12/2015: Moro is awarded by the conservative civil-military association designated the League for National Defense (Liga da Defesa Nacional)
II.8 – Statements about the Movant’s conviction
According to renowned journalist Tales Faria, who was the editor of several media vehicles in the country, on June 9th, 2016, the Objected Party participated in a dinner promoted by the president of the Paraná Lawyers Institute (Instituto dos Advogados do Paraná), and at the end of such dinner he spoke to a small public, stating that the Movant would be convicted by the end of this year5:
We recall that it is absolutely inappropriate and incompatible with the duty of impartiality issuing statements about a conviction or a detention of the Movant in social events attended by the Objected Party.
II.9 – Clear feeling conveyed to society
All of the exposed situations also triggered in some segments of society the idea that the Objected Party has already an established position in relation to the Movant.
This is confirmed by several news reports circulated in the media, as per the examples below:
The fact that the Movant has been pre-judged by the Objected Party has even been reported by the international press.
As an example, we show the excerpts of a news report by the American magazine Boston Review, entitled: “Chasing Lula. Brazil’s massive corruption investigation has become a one-sided political affair, heedless of due “10:
II.10 –The publicized participation of the Objected party in the political scene
The media circus of “Operation Car Wash” and the publicized protagonism of the person in charge, sustain in many segments a reasonable assumption, i.e., the Objected Party would have political intentions. To such a degree that opinion poll companies have included his name in voter preference polls for presidential election.
IBOPE, for example, included the name of the Objected Party in a voter preference poll for presidential campaign as a possible candidate for the PSDB party, a historical political opponent of the Movant and his Political Party:
It is worth mentioning that if the content of these polls remain the same, the Objected Party would be the main or one of the main opponents of the Movant. Certainly, this situation may compromise the required impartiality of the former.
II.11- Additional considerations
It is important to further note that in 2004, the Objected Party published an article with his consideration on the operation “Mani Puliti” in Italy12 which he uses as basis for the illegal and heterodox means he currently employs in the designated “Operation Carwash” 13. An excerpt from the article:
“Maybe the most important lesson we can take from the episode is that the legal action against corruption is only efficient with the support of democracy. It is democracy that defines the boundaries and possibilities of a legal action.
While it is supported by the public opinion, it is able to advance and deliver good results. If this doesn’t occur, it shall hardly succeed. Certainly, a favorable public opinion also requires that the legal action deliver good results.
In addition, a legal action cannot substitute democracy in the fight against corruption. An informed public opinion, through its own institutional means, is capable of undermining the structural causes of corruption. Moreover, the legal punishment of corrupt public agents is always difficult, due to the amount of evidence needed to reach conviction in a legal action, among other reasons.
From this perspective, the public opinion may serve as a healthy substitute, and is better equipped to impose some type of punishment to corrupt public agents, condemning them to ostracism”. (our emphasis).
In this line of thinking, selective leaks to certain segments of the press are used to manipulate the public opinion, whether to weaken the defense of the targeted people of Operation Carwash, whether to avoid the genuine questions in relation to the illegal methods employed.
It is relevant to note that in a press conference published on the Internet, the Objected Party calls for the support of the “public opinion” and the “organized civil society”14:
“I’m linked to the facts, evidence and the law. And that is how I’ll act in my actions, whether to find a person not guilty or guilty. And I commit to proceed with my cases until the end. But these cases involving severe corruption crises, powerful public figures, only proceed if supported by the public opinion and the organized civil society. And this is your role. Thank you!”. (our emphasis).
Furthermore, the Objected Party issued another statement during the social protests to say that he was “touched” by the support of the population to “Operation Carwash”. The Objected Party affirmed that “it is important that the elected authorities and parties listen to the voice of the streets” and that “there is no future with the systemic corruption that destroys our democracy, our economic well-being and our dignity”. See below:
“Today, the 13th of March, the Brazilian people took the streets. Among the many reasons, to protest against the corruption which has penetrated in many of our institutions and in the market. I was moved by the support to the investigation of so-called Operation Carwash.
Despite the references to my name, I attribute to the kindness of the Brazilian people the current success of a solid institutional work involving the Federal Police, the Federal Attorney’s Office and all the bodies of the Judiciary Power. It is important that the elected authorities and the parties listen to the voice of the streets and also commit to fighting corruption, reinforcing our institutions and weeding out the bad apples completely, because currently this job has almost exclusively been carried out by control bodies.
There is no future with the systemic corruption that destroys our democracy, our economic well-being and our dignity as a Country.
03/13/2016, Sérgio Fernando Moro”15.
Therefore, it is clear that the Objected Party’s strategy is to make use of the public opinion as a shield against the reaction to excessive and illegal acts, and such strategy is working very well, both in procedural terms and in terms of promoting his personal and public figure and personal.
See the examples below:
We should note that the Objected Party does not combat the worship of his personality. The Objected Party’s behavior led to the following news report16:
In relation to the recent and previously mention decision of Teori Zavascki, for example, in which he ordered that the investigative record against the Movant be remitted to the Court under the jurisdiction of the Objected Party, there were many statements celebrating such decision, since, consequently, a conviction would be certain, once again proving that the Objected Party has already pre-judged the Movant.
Reinaldo Azevedo, a reporter from the magazine Veja and a well-known denigrator of the Movant, celebrated such decision, stating “the greatest fear of the PT has now become a fact.”:
A profile with over 20 thousand followers in the social network “Twi
tter” disclosed the following image, with the wordings “Goodbye,
Lula! Teori sent Lula to Moro”:
The Social Movement “Vem Pra Rua Brasil” also celebrated the decision:
Furthermore, on April 26th, 2016, the Objected Party attended an event in New York (USA) to receive an award from “Time” Magazine, and a news report stated that the “magazine affirms that Moro is treated by Brazilians as a soccer idol”17 (our emphasis).
All these facts confirm that the Objected Party lacks the required impartiality to judge the legal action, thus prompting this declaration of suspicion.
In fact, what would be the social damage or the damage to the image of the Courts if a judge other than the Objected Party ruled over the case? None. Unless there are no other judges in Brazil.
We further note that the Movant is not afraid of being investigated or facing trial regardless of the judge. He simply wants justice, and this is not only a right of the Movant, but also a right of every individual. This motion for suspicion implies defending the Right of Law and the values intrinsic to it, such as the right to a natural and impartial judge and the presumption of innocence.
We shall expose this below.
III.1 – The guarantee of a fair and impartial trial
The right to a fair and impartial trial overcomes the barriers of the national law, being expressively present on rules of international jurisdiction .
The international law prevailing in the Country assures the right to a fair trial by an impartial judge, as verified on: (a) article X of the Universal Declaration of Man and of the Citizen, which states the right to an “independent and impartial court”;(b) article 14, item1, of the International Convent on Civil and Political Rights, approved by the United Nations in 1976, which demands a “competent, independent and impartial court, established by law, on the ascertainment of any criminal charge”; (c) article 8 of the American Convention on Human Rights, according to which “every person has the right to be heard with due guarantees and within a reasonable time, by a competent, independent and impartial judge or court , previously established by law , on the ascertainment of any criminal charge made against that person or to determine their rights and obligations of civil, labor, fiscal or any other nature”.
Under the Brazilian Constitution, impartiality accrues from the natural judge guarantee, expressively provided for in article 5, item XXXVII and LIII.
Enrico Tullio Liebman observed:
“A judge who dignifies his duty places himself beyond the ideological conflicts of society and focuses on the information and questions of the actual case before him, which deserves a pondered decision18.” (our emphasis).
In fact, impartiality confers legitimacy to the work of a Judge, as precisely explained by J. J. Calmon De Passos:
“The democratic legitimacy of a Judge is not recognized beforehand, in my opinion. In fact, it is recognized retroactively, to the extent that a Judge enacts rules in compliance with the due legal process; when a Judge enacts rules in compliance with the legal framework before him, the law recognizes his legitimacy. The legitimacy of a Judge results from his decision in compliance with the evidentiary stage and the content of a ruling. This is why North-Americans, based on their typical reasoning, show certain incompatibility with judges whose work is built upon decisions. They call this a ‘personal right’. Such judge was not a relative, or an interested party, nevertheless, he decided the legal action in such a twisted and biased manner that he became inconsistent; his decision lacks legitimacy. Hence, the legitimacy of a judge is not recognized beforehand, but retroactively”. (J. J. CALMON DE PASSOS, A formação do convencimento dos Magistrados e a Garantia Constitucional de Fundamentação das Decisões, conference held on May 11th, 2001, in the Civil Law and Civil Procedure Law promoted by the Institute for Legal Studies (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 – our emphasis).
This is also the understanding of Ada Pellegrini Grinover19:
“The impartiality of the judge, rather than a simple attribute of the judicial function, is seen in our times as its essential character, and the principle of the natural judge as the core of the exercise of the function. More than the subjective right of the party and beyond the individualistic content of procedural rights, the principle of the natural judge ensures its own jurisdiction, its essential element, its substantial qualification. Without the natural judge, there is no possible judicial function.”
Ferrajoli states that impartiality is “the essence of the jurisdictional activity .”20
Gustavo Henrique Badaró21 on the same note, asserts with authority that “a judge’s impartiality is the essence of the procedure” (our emphasis).
André Machado Mayer points out that:
“The guarantee of jurisdiction is an illusion, besides being merely formal when a judged is biased. It would be more honest to recognize that in this case jurisdiction is not guaranteed, since an affected judge means a biased judge, therefore, he is not a judge.”22 (our emphasis)
It is important to emphasize that the list provided for in article 254 of the Code of Criminal Procedure is merely exemplary. This conclusion might also be obtained by the analogy of article 145, V of the New Code of Civil Procedure, and, also, article 499, III of the Code of Criminal Procedure.
On this note, Scarance Fernandes stated in an Opinion on HC 146.796/SP, judged by the 5th Panel of the Superior Court of Justice:
“When a legislator does not allow a person to be a juror when such person manifested a previous deposition to convict or acquit, such legislator is fixating in the law a normative parameter for checking the bias of those who judge, and not only of the juror. In short, enshrine the rule that the judge cannot, before deciding on the charge, anticipate his judgment, as this can only derive from the evidence yet to be produced. Moreover, a judge cannot show inclination to the positions of either party, failing to act impartially.
Nothing justifies the enclosure of the rule to narrow limits of the jury process. It represents the general rule, drawn from the constitutional principle of impartiality, which states that one cannot be a judge of a certain cause if, beforehand, they have already established a party’s conviction, being favorable to the claim of one of the litigants.
We conclude, therefore, the possibility of applying, in the suspicion judgment (julgamento de suspeição) of a criminal judge, by analogy of articles 135, V, of the Code of Civil Procedure and art. 499, III, of the Code of Criminal Procedure, allowing their removal when their actions and demonstrations evidence interest on the trial in favor of the prosecution or a prior arrangement to convict.
One cannot possibly imagine a different solution that, based on the assertion of the impossibility of analogically applying those provisions to article 254, despite the analogy being applicable to criminal proceedings, maintained on the case a judge who lost his exemption by virtue of acting like a party or by expressing prior willingness to convict or acquit”23 (our emphasis).
The Superior Court of Justice, as an example, had the same position on the following decision:
“Although the affirmation in the listing of Art. 254 of the Code of Criminal Procedure is limited, the impartiality of a judge is crucial to the exercise of jurisdiction to such extent that a comprehensive interpretation and the use of analogy should be accepted under Article 3 of the Code of Criminal Procedure” (STJ, REsp 245.629, Reporting Judge – Justice VICENTE LEAL, j. 11.9.2001) (our emphasis)
As noted by LOPES JR., “It [the list of article 254] cannot be exhaustive, otherwise – absurdly – it shall not be possible to admit the most important of all exceptions: the lack of impartiality of judge (remembering that the Fundamental Principle of a procedure is impartiality)” 24 (our emphasis).
Indeed, it is necessary to identify in this actual case situations which reveal the loss of impartiality.
The doctrine and precedents provide important parameters on the subject.
According to Aury Lopes Jr. 25, the judge shall keep his distance from any external factor of the procedure:
“To have a natural, impartial judge, and that truly perform his function (as guarantor) in criminal proceedings, they shall be above of any type of pressure or political manipulation (..) This freedom relates to external factors, i.e, such judge is not forced to decide according to a majority or should neither give into political pressures.
The democratic legitimacy of a judge derives from the democratic character of the Constitution, and not from the will of the majority.”
The same author alerts that “a judge´s impartiality becomes evidently compromised when we are before a judge that gives clear signs that they have already decided on the matter. (…)That is: the judge has already decided that the accusation is true and the rest of the legal action becomes mere masquerade to reassert the decision made in advance ”26 (our emphasis).
To Denise Neves Abade, “Impartiality is compromised, therefore, whenever a judge ‘contaminates’ himself with the investigation or prosecution, abandoning its underlying neutral position in the conflict”27 (our emphasis).
Reis Frieide28 understands that the judge shall never use its office to project a positive image before society:
“Although it is an obvious fact that all judges, without exception, should preside judgments with a necessarily distant view from the heat of passion (which usually involve the causes), regrettably deplorable episodes are known to us, making us realize that some judges (despite being the reflection of a minority, considering the Judiciary´s realm) – trying not to, in all manners, displease Society (or more specifically the public opinion) which is close to them –seek to judge not in a calm, balanced and fundamentally impartial manner, as required by law, but in a different manner, according to the mood of the political contingencies of the time, ultimately aiming to forge a positive projection before the opinion of Society that comes across as more widespread and, at the time, seems to be the majority.”
The North American doctrine also alerts about the impossibility of any political ideological interference in the judgment29:
“Impartiality has often been portrayed as compromised when judges have a political interest in the outcome of a proceeding. Political interests can be subdivided into the external and internal. External political interests are situated at the intersection between judicial impartiality and judicial independence: a judge’s impartiality is undermined when her political future is subject to manipulation or control by others who have an interest in the outcomes of cases the judge decides. Internal political interests, in contrast, relate to ideological zeal, which can bias the judge for or against litigants and lead her to prejudge cases.”
“Impartiality has often been treated as compromised when judges have a political interest in the result of an action. Political interests may be external and internal. External political interests exist in the crossing between judicial impartiality and judicial independence: a judge’s impartiality is damaged when his political future is subject to manipulation or control from others with an interest in the outcomes of the actions ruled by such judge. On the other hand, internal political interests are related to ideological diligence that may influence a judge for or against litigants, leading to a prejudgment of his legal actions (…)
At a time when “everyone is jurist,” it is perhaps unsurprising that the public realize that political influences represent two distinct threats to the impartiality of judges: internally, by judges distorting their decisions to implement their own political agendas and, externally, by third parties that seek to implement their political agendas imposing on judges their will”. (free translation – our emphasis)
In this respect, it is important to emphasize that the suspicion in question does not necessarily derive from a dishonest act by the judge, but of his “state of mind” at the moment of trial, taking into consideration his “prejudices, habits, believes, passions, tendencies, among other things”, as rightfully observed by Hélio Tornagui:
“… affirming there is suspicion over a judge is not the same as affirming he is dishonest. Obviously, it does raise suspicion about his honesty. However, several other causes may lead to a biased solution of a honorable judge. And a good judge should be the first to be suspicious, not of his moral integrity, but of his state of mind, in certain circumstances, also because partiality is, sometimes, unconscious. As a human being, a judge is influenced by prejudices, habits, believes, passions, tendencies, spirit of caste or corporation and many other facts or psychic states that subjects him to appoint of view, without him even realizing it” (Comentários ao Código de Processo Civil, v. 01, p. 472, Revista dos Tribunais, 1976 – our emphasis).
Observe that this understanding – regarding a momentary situation which puts in doubt the impartiality of a judgment – has already been adopted by the Federal Regional Court of the 4th Circuit, as observed in the excerpt from a decision rendered by Honorable Federal Associate Judge Carlos Eduardo Thompson Flores Lenz:
“It looks to me as irrefutable the considerations set out in the opinion of the MPF´s representative Dr. Paulo Gilberto Cogo Leiva, on pgs. 131/3, verbis: “the semantic content of article 135, V, of the CPC: states:” A suspicion of partiality of a judge is well-founded when: (…) V – a judge is interested in the trial in favor of a party “. In this case, the item should be read in conjunction with the main paragraph, that is, the meaning of the suspicion rule, which is related to doubts about the partiality of a judge in the trial of a case. Since partiality or impartiality is something that inhabits the sphere of the judge’s subjectivity, which can also remain unconscious, procedural legislation created assumptions that places the judge under suspicion in relation to impartiality. Therefore, the assumption of suspicion does not prove effective impartiality, but that the judge is suspected to act impartially by society or at least by one of the parties. Strictly speaking, a judge may act impartially even by judging a case in which his wife or child is a party, but in this situation his judgment would always be placed under suspicion by society and the parties. It is true that society has its own standards of judgment relating to a culture located in a place and time. Nepotism was acceptable in past times, it is now rejected, although it is possible that a child of a person with power of appointment is the most qualified person for the exercise of a position of trust. These culturally established standards on the suspicion of partiality are critical to the interpretation of item V of article. 135 of the CPC”” (TRF4, EXSUSP 2007.72.08.004265-0, 3rd Panel, Reporting Judge Carlos Eduardo Thompson Flores Lenz, D.E. 23/01/2008).
Also regarding the public demonstration of the case, the Federal Regional Court of the 4th Circuit also decided that:
SUSPICION- JUDGE – PARTIALITY. Is suspect of bias, therefore unable to exercise jurisdiction in this case, the judge who expressly manifested his dislike of a party, showing total lack of impartiality and serenity to judge the case.(EXSUSP 200004010534751, AMIR JOSÉ FINOCCHIARO SARTI, TRF4 – FIRST PANEL, DJ 19/07/2000 PAGE: 262.)
CIVIL PROCEDURE MOTION FOR SUSPICION OF EXPERT. COURT PRECEDENT. 1. When an expert departs from the issues that are involved and invades the legal realm, directing their work from the perspective they understands more correct, this justifies questioning their exemption and, of course, makes the work to be developed unsafe, in terms of impartiality,. 2. The expert is subject, in regard to subjective ability, to the same rules established for the judge. The attribute of impartiality is a basic principle for the due process and encompasses the judge and all the clerks and assistants there including the expert. It is the best guarantee of justice for the parties and is related to the judiciary´s credibility, which is essential for the preservation of the law 3. A public demonstration of the merits of the case creates a nontransferable obstacle to their stay in the process, and the expert shall thus be removed from the task of carrying out the expert report. 4. Court Precedent. 5.Known and provided appeal.(AG 200304010454938, CARLOS EDUARDO THOMPSON FLORES LENZ, TRF4 – THIRD PANEL, DJ 10/03/2004 PAGE: 429.)
In this sense, the Superior Court of Justice has decided that:
“2. Suspicion is a circumstance of subjective nature which leads to the relative presumption of partiality of a judge. It is, therefore, a rebuttable presumption.
3. Na assumption taken from the record in which the Judge is related by chance and by affinity with political opponents of the appellant herein, the Mayor of Jacareí/São Paulo State, a fact that is undeniable even by the judge and that imposes the recognition of the raised suspicion, given the existing concern that said honored Judge shall not have psychological conditions to rule with impartiality” (STJ, 1st Panel, Resp 600.752/SP, Reporting Judge – Justice Luiz Fux, DJ August 23rd, 2004 – our emphasis).
HABEAS CORPUS SUBSTITUTE OF NON ACCEPTABLE APPEAL. JUDGE´S SUSPICION. ENMITY (ARTICLE. 254, I, OF THE CPP). PRESENCE OF ELEMENTS THAT MAKE UNFEASABLE THE JUDGE’S IMPARTIALITY. WRIT NOT KNOWN. ORDER GRANTED BY THE COURT.
– The Superior Court of Justice, following the First Panel of the Federal Supreme Court – STF, started not admitting the habeas corpus substituting a proper appeal, emphasizing, however, the possibility of granting the order in cases of flagrant illegality.
– Presence of elements, particularly the existence of criminal proceedings and disciplinary complaint involving the party and the objected Judge, able to demonstrate the occurrence of a situation which cannot sustain the maintenance of the judge’s impartiality.
– Habeas corpus not known. Order granted by the court to recognize the judge´s suspicion, nullifying the suit as of the receipt of the complaint.
(HC 311.043/RJ, Reporting Judge ERICSON MARANHO (ASSOCIATE JUDGE CALLED BY TJ/SP), SIXTH PANEL, judged on 06/23/2015, DJe 08/03/2015)
COURT´S INTERNAL APPEAL ON SPECIAL APPEAL (RECURSO ESPECIAL). MOTION FOR SUSPICION. ARTICLE 254, I, OF THE CPP. PUBLIC AND RECIPROCAL, BASED ON CONFLICTS AND MUTUAL AGGRESSIONS. NON CONSTITUTION. COURT´S INTERNAL APPEAL DENIED.
1. This Court has adopted the position that the enmity leading to the suspicion provided for in art. 254, I, of the CPP must be public, reciprocal and based on conflicts or mutual aggression. Precedent.
2. Non application of art. 254, I, of the CPP in cases which attorney and judge have overcome an occasional contention occurred in the past.
3. Court’s internal appeal denied.
(AgRg in REsp 1331200/RS, Reporting judge MOURA RIBEIRO, FIFTH PANEL, judged on 05/08/2014, DJe 05/14/2014)
Furthermore, according to an important precedent of the Federal Supreme Court, the judge cannot acts as a convicting agent or as a supporter of the “criminal law of the enemy“, or even, to reveal an opinion to “void public freedoms”:
“The judicial speech, which is exclusively based on the recognition of the objective severity of a crime – and which is confined, for the purpose of applying an exacerbated penalty, to merely rhetoric sentences full of generalizations, without any relevant and revealing foundation, with a language typical of the ‘symbolic criminal law’ or even the ‘criminal law of the enemy’ – ultimately violates the liberal principles guaranteed by the democratic order which is the basis of the Rule of Law, revealing through such behavior (fully opposed to the parameters outlined in Precedent 719/STF), an authoritarian and nullifying view of the public freedoms in our Country.” (STF, HC 85531, Reporting Judge – Justice Celso de Mello, j. 22.3.2005) (our emphasis)
Also, the International Courts´ jurisprudence provide important parameters to indentify the lost of impartiality.
The European Human Rights Court (EHRC) has considered impartiality has fundamental importance to society, in a way that the Judiciary Power inspires the society´s confidence. In this sense, we give as example the judgment granted in Apitz Barbera vs. Venezuela: “(…) impartiality requires the judge intervening in a specific process approach the facts, objectively without from any prejudice and, anyway, offering sufficient guarantees of objective nature allowing to put away any doubt that the accused or society might have regarding the lack of impartiality”30 (our emphasis).
On Buscemi vs. Italia, the EHRC decided that: “(…) the maximum discretion and attention is required from the judicial authorities on the cases they are to render judgment, as a way to preserve the image of impartial judges. The discretion should dissuade them from using the press, even if proven. This is the highest demand for justice, which leads the court to naturally impose its power”31 (our emphasis).
On Piersack vs. Belgium32, the EHRC stated that if there are “reasonable reasons to doubt” a judge´s impartiality he shall “remove himself from the judgment of the case”:
“Every judge in respect of whom there may be legitimate reasons to doubt his impartiality should refrain from the judging process. What is at stake is the confidence which the courts must inspire in citizens in a democratic society (…) it is clear that the previous exercise in the process of certain procedural functions may cause doubt regarding impartiality”33 (our emphasis).
The EHRC, on Cubber vs. Belgium, decided that any judge shall be removed from the case, if there is a lawful reason to fear his impartiality. Some excerpts from that decision deserve to be emphasized because they have a connection with the case in question:
“26. (…) As the Belgian Court of Cassation has observed (21 February 1979, Pasicrisie 1979, I, p. 750), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused.” (our emphasis)
“29. (…)“…the judge in question, unlike his colleagues, will already have acquired well before the hearing a particularly detailed knowledge of the – sometimes voluminous- file or files which he has assembled. Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-former opinion which is liable to weigh heavily in the balance at the moment of the decision.”(our emphasis)
“30. (…) notably in regard to observance of the fundamental principle of the impartiality of the courts – would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention.” (se aforementioned ruling Delcourt, série a, n. 11, pp. 14-15, par. 25, in fine).
In international precedents we may also find relevant judicial decisions on the line that the impartiality on judgment assumes the necessary distance between the judge and the public. This is the same understanding of the judgment rendered by the American Supreme Court on Estes vs. Texas 381 (1965):
“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.”(our emphasis)
“A defendant on a trial for a specific crime is entitled to his day in court, not in a stadium, or a city or a nationwide arena. The heightened public clamor resulting from the radio and television coverage will inevitably result in prejudice.”(our emphasis)
Accordingly, both in national and international law, there is relevant criteria for identifying the loss of impartiality of a judge.
Therefore, such precedents state that to preserve their impartiality, judges, inter alia :
May not show prior willingness to convict or acquit;
(b) Cannot long before the hearing reveal detailed knowledge of the case;
(c) Shall not reveal any prejudice against the accused or the facts on trial;
(d) Shall not bear legitimate reasons to put into question their impartiality;
(e) Must maintain maximum discretion;
(f) Shall keep away from the public outcry and from any factors outside the process;
(g) Shall never use his office or rendered judgments to project a positive image in society.
In the case sub studio, however, the facts brought to light show exactly the opposite situation to all these parameters.
Indeed, in the wake of what has been stated above, the Objected Party already practiced several invasive, arbitrary and unnecessary34 acts in relation to the Movant because:
(a) He ordered a search and seizure warrant at the homes and offices of the Movant and his family;
(b) He authorized the tapping of the telephones used by the Movant and his family, making a thorough judgment;
(c) He authorized the telephone tapping of the Movant´s attorneys, monitoring and acknowledging all the defense strategy;
(d) Authorized the release of the content of the tapped conversations, at the expense of the legal secrecy, with predictable consequences such as encouraging the social and political protests, and also creating embarrassment to the Movant when he was to take office as Chief of Staff.
If the Objected Party affronted the law on several occasions – some already recognized even by the Federal Supreme Court – to deliberately disfavor the Movant, what can we expect from him as the one who will decide the case?
How to expect from the Objected Party a position of terzietà?
For much less – i.e., when the Objected Party monitored the migratory movements of a defender in another case (aforementioned HC 95.518), in which repeated arrests were used – the Federal Supreme Court firmly contemplated the breach of his impartiality.
We repeat that the present case contains arbitrariness which are even more evident. Therefore. clearly the Objected Party lost his impartiality.
As if that were not enough, when providing information to the Federal Supreme Court on Complain no. 23,457, the Objected Party shamelessly took on the role of prosecutor in relation to the Movant.
On said occasion, the Objected Party affirmed that the Movant promoted actions “undue for a former president to interfere in his favor with the public institutions to obstruct the investigations” (our emphasis).
Moreover, this – fanciful – accusation has been repeated at least 15 (fifteen) times by the Objected Party, who under the excuse of providing information to the Court, prepared a true accusatory libel against the Movant.
And, to leave no doubt about the – crystal clear – partiality of the Objected Party to act in the actual case, among the accusations promoted by him against the Movant, it coincides with at least one of the objects of the investigation submitted to the 13th Federal Criminal Court of Curitiba.
According to the above exposition, the Objected Party affirmed on that occasion that “it is the former president’s family that has the power of disposal over the Atibaia property, and not Fernando Bittar, its formal owner, which suggests he is an intermediary party” (our emphasis).”
Only in the peculiar reality of the Objected Party might he work as the accuser and the judge of the same case!
In this sense, there is nothing that avoids, in the case before us, the unequivocally indication of the objective and subjective partiality of the Objected Party, there it is correct to the recognize his blatant suspicion.
III.2 – Exclusive dedication to the case with a known outcome
We would like to remind you that “Operation Car Wash” is connected with investigation 2006.7000018662-8 and 2009.700003250-0, opened in the distant year of 2006.
Therefore, for 10 (ten) years the Objected Party has had contact with some of the main defendants/ or convicted parties of “Operation Car Wash”.
Recently, the investigations gained massive coverage on the political, economical and media scene, nationally and internationally, giving the Objected Party a – dangerous – celebrity and hero status.
Therefore, as stated in this petition, as of May 2015, the Objected Party became the exclusive judge of this Operation, according to the Resolutions made by the Federal Regional Court of the 4th Circuit (doc. 16).
Note that in a period of at least 270 (two hundred and seventy) days, the 13th Federal Court of Curitiba/PR remained, exclusively, with the burden of processing and judging cases related to Operation “Car Wash.”
Besides the disrespect to the principles of the due process and impartiality (CF, article 37), such situation elevated the Objected Party to a condition of judge of exception (juízo de exceção), which is expressively forbidden by the Federal Constitution that states:
XXXVII – there shall not be a judge or court of exception;
LIII – No one shall be tried or sentenced except by the competent authority.”(our emphasis).
Regarding other characteristics of the Court of Exception, Gustavo Badaró35 states that:
“There are also other exceptional court characteristics: allocation of jurisdiction based on specific factors and usually according to discriminatory criteria (race, religion, ideology, etc.); limited in time; fast procedure (…). On the other hand, it is also court of exception, that is, aimed at specific decision of a particular person or group of persons, even for future events. At that point, the extraordinary character does not follow the temporal aspect, but its discriminatory nature”. (our emphasis).
The non-observance of the natural judge principal is also a factor that compromises the judge´s impartiality.
This is the same understanding as of Guilherme de Souza Nucci’s and Gustavo Badaró’s , respectively:
“The main concern of this principle is to ensure the judge´s impartiality, as in a democratic state, it is inconceivable that the trials materialize themselves on a partial, corrupt and dissociated way disassociated from what is expected from the judiciary”36
“The scope or purpose of the natural judge´s guarantee is to ensure the impartiality of the judge, or rather the right of any accused to be tried by an impartial judge. The natural judge´s guarantee is ideologically oriented to ensure the impartiality of the judge”37
There is no doubt, therefore, that also under the presented scope there is evident compromising of the Objected Party´s impartiality.
III.3 – A Full jurisdiction confirms suspicion
At this point a brief remark about the Brazilian criminal procedure, which is commonly said to be of mixed nature – that is, it is inquisitorial in the first phase and accusatory on the procedural stage.
However, to verify the reality of the criminal process in the country, it appears that there is no such differentiation, therefore being an essentially investigative procedure, once the management of the evidence is all the time in the hands of the (same) judge.38
“In this context, provisions which give the judge investigate powers, as article 156, items I and II of THE CPP, externalize the adoption of the investigative principle, founding an investigative system, because it represents a breach of equality, of the adversarial system and of the procedures own dialectic structure. As a result, they overtake the main guarantees of the jurisdiction, the judge´s impartiality.”39(our emphasis).”40
Well, if for the adversary system the judge’s position is of a mere spectator, dedicated to evaluate in an objective and impartial way the facts, in the investigative system the judge is the actor, representative of the punitive interest, a position that is inconsistent with the necessary impartiality of a fair and objective trial.41
This understanding is supported by the ECHR 42, that had the chance to decide that “the appearance of impartiality was compromised in cases where there was a prior intervention of the judge at the investigative stage, delivering decisions that hold an anticipation of the case´s merit. In such situations, the claimants, especially the accused, could legitimately suspect that he would not be tried by an impartial judge or court” (our emphasis).
“the possibility of impartiality shall only occur when, besides the initial separation of the accusation and judgment functions, the judge sets distance from an investigative / evidentiary activity”
Geraldo Prado45 also agrees with this understanding:
“If you look for something you know what you intend to find, and that in a criminal procedure represents an a dangerous inclination or tendency that compromises the judge´s impartiality ”.
In the brilliant article entitled “Who will judge the future of Operation Car Wash case?” (“Quem vai julgar o futuro processo da Operação Lava Jato?”), Aury Lopes Jr. And Alexandre Moraes da Rosa46 opine on this topic, specifically in view of Operation Carwash´s peculiarities:
“This refers us to a complex questioning regarding the role of a judge on the Criminal Procedure in a Democratic State based on the rule of law and, consequently, what we understand about the accusatory structure and, mainly, the necessary care to ensure the “supreme procedure principle”: a judge´s impartiality (Werner Goldschmidt).The situation is substantially aggravated when we realize that in Brazil, on the other side of the criminal procedure civilizational evolution, the prevention is a cause of jurisdiction fixation, that is, the first judge that made decisions on the pre procedural phase will be the one that (on the judgment) will judge, when in European countries (by force of repeated decisions of the European Court of Human Rights), the opposite is consecrated: the first judge is a contaminated judge and shall not trial“(our emphasis).
And they proceed47:
“In cases like this, in which a judge has an intense activity on the procedural phase (even if he does not act in it – and he shall never do), one cannot deny the contamination, the immense prejudice due to the pre trial he is called upon to do, at every occasion, before the temporary and preventative arrest requests, search and seizure warrants, restraint of assets etc. Even more serious is when the famous plea bargain, in which his endorsement means profound cognition of the content of the plea bargain. And its acceptance, otherwise he would not ratify it. In this scenario, it is more than evident the need of the separation between the “investigation” judge and the “trial” judge (prevention as a cause of jurisdiction exclusion), as a way to assure the maximum efficiency of legal due process and the ‘originality’ of the judgment ( from the Italian expression originalità to manifest the importance of a judge forming his conviction from the evidence produced on the adversary due process).”
The Federal Supreme Court had the opportunity to recognize that a judge that acts on a preliminary investigatory phase might lose his impartiality48:
“HABEAS CORPUS. Criminal Procedure. Judge that acted as the police authority on the preliminary proceeding on paternity investigation. Jurisdictional exercise is not permitted. Obstruction. Article 252, items I and II, of the Code of Criminal Procedure.
Order granted to annul the judgment as from the receipt of the complaint.
We hereby clarify that the Federal Supreme Court, upon the judgment of ADI 1,570/DF, had the opportunity to affirm the constitutionality of the full jurisdiction of a judge on the Brazilian criminal procedure.
However, during that judgment, the Federal Supreme Court recognized the possibility of a judge becoming partial due to his level of involvement during the investigation or evidentiary phase.
The Honorable Justice Maurício Correa stated in his ruling the following:
“This evidentiary activity of the judge, I believe, violates the ‘due process of law’. It violates it because it psychologically compromises the judge´s impartiality. And impartiality, as we know, is a virtue demanded from every judge. And by collecting evidence, he will certainly and fatally be influenced. Maybe to a ‘preparing” judge but never to a ‘judging’ judge. Furthermore, the principle of the case, of the ne procedatjudexexofficio, forbids in practice, and does not advise the judge on an administrative phase to collect evidence, and also advises against the filing of criminal actions. This is not the institutional and constitutional institutional role reserved for a judge.”
The decision of the Honorable Justice Cezar Peluso is also quite enlightening:
“After abstracting the other substantiations of the request, my opinion in this case is for the breach of the so-called objective impartiality that should, as a basic provision of the constitutional principle of the due process of law, elect on each phase, the competent judge to decide it. (…) This is what one clearly sees in the content of his decisions, especially in receiving the complaint and granting the provisional arrest of the defendant, in both situations he was shown to be strongly influenced in his decision and justification, by the insights gained in the preliminary investigation. (..) Therefore, the exemplary assumption of the breach of objective impartiality applies. The lack of impartiality impedes the judge from hearing and ruling a case submitted to him, in which the inevitable deep psychological predisposition of previous contact with the revelations and the rhetorical force of the facts make him particularly incompatible with the exercise of the judicial function (…) it corresponds to the originality of cognition that the judge will develop in the case, in the sense that he still did not make, consciously or unconsciously, a conviction or prior judgment, in the same or in another process, on the facts to be investigated or on the legal fate of the dispute yet to be decided. Obviously, his loss means a lack of exemption inherent to the exercise of the judicial function.
There is no doubt, in view of the exposition above, that the Objected Party besides participating in the evidence collection phase has also an intense and undeniable involvement with such evidence, being influenced by it before the existence of a lawsuit involving the Movant.
Therefore, the contamination of the judge is inevitable. On an investigative level, he produces evidence, and upon its collection ineluctably analyzes such evidence to grant or deny temporary/preventative arrests, search and seizure warrants, among other possible precautionary measures.
Gabriela Prioli Della Vedova and Renato Marques Martins opportunely state49
“That is, if the judge himself accuses, the claimants become orphan of jurisdiction. If there is already a decision – even if on the judge´s head –the process is dispensable, it is relegated, in this context, to the condition of pure acting and pretending, for an outcome which already exists. It seems absolutely simple even for a layman in relation to legal science that someone who has issued value judgment on a matter cannot, with exemption – and we emphasize exemption –issue once again an opinion on that same subject without his opinion being absolutely contaminated by the previous judgment.”
Consequently, from any perspective, it is clear that the set of decisions rendered by the Objected Party in the scope of “Operation Carwash” demonstrate that his impartiality has been affected, confirming the need to declare his suspicion.
In face of all the above exposition, we require that you receive, process and accept this motion for suspicion, and its subsequent recognition of suspicion for the above-explained reasons, in accordance with article 99 of the Code of Criminal Procedure, with the consequent suspension of the suit’s continuance and subsequent determination of referral to a replacement – of the police investigation and all precautionary measures linked to it and other related lawsuits.
We also require that you refrain from acting in this legal action in and in all related cases.
We also require the attachment a witnesses list requesting, from now on, a hearing to receive testimony.
We also require the attachment in a notary office of the book entitled “LAVA JATO”, by Vladimir Netto, Editora Primeira Pessoa, given the impossibility of its electronic filling.
In the event you do not accept and proclaim yourself biased, insisting on ruling the case, we require that this petition be separately assessed, giving a reply within three (03) days and, subsequently referring it to the Federal Regional Court of the 4th Circuit, which should recognize the suspicion of the Objected Party bias. These are our requests.
From São Paulo to Curitiba, July 5th, 2016.
LUIZ INÁCIO LULA DA SILVA
3 Said author is being sued by the Movant for unduly attacking his honor.
4 “Em livro, jornalista reconta lava-jato sem esclarecer seus mistérios“. Folha de São Paulo. Available on: <http://www1.folha.uol.com.br/poder/2016/06/1786293-em-livro-jornalista-reconta-lava-jato-sem-esclarecer-seus-misterios.shtml>
11http://www.revistaforum.com.br/rodrigovianna/geral/genial-a-folha-tucana-lanca-moro-pelo-psdb/. Note that after “finding out” about the fact, the newspaper Folha de São Paulo changed the chart, as per erratum in its own Page: http://www1.folha.uol.com.br/poder/2016/03/1751951-pesquisa-datafolha-mostra-marina-a-frente-em-todos-os-cenarios-para-2018.shtml
18 Enrico Tullio Liebman. Riv. Dir. Proc., 1977, p. 739/740.
19PAOLO TONINI, Manuale di procedura penale, 6ª Ed. Milano. A. Guiffré, 2005, p.87.
20Ferrajoli, Derecho Y Razón, teoria del garantismo penal, p. 581/582.
21 BADARÓ, Gustavo Henrique, Processo Penal, 3ª ed., São Paulo, Editora Revista dos Tribunais, 2015, p. 273.
22 Cf.: MAYA, André Machado. Imparcialidade e processo penal. Rio de Janeiro: Lumen Juris, 2011.
23Apud André Machado Mayer. Imparcialidade e Processo Penal na prevenção da competência. Lumen Iuris, p. 252-253.
24 AURY LOPES JR, Direito Processual Penal, 12º edição, 2015, p.339
25 AURY LOPES JR, Direito Processual Penal, 12º edição, 2015, p.63
26Op. cit., p. 340.
27Denise Neves Abade.Garantias do Processo Penal Acusador, Renovar, p. 136.
28 Ada Pellegrini Grinover e outros, As nulidades no Processo Penal, 7ª edição, 2001, p.46.
29The Dimensions Of Judicial Impartiality. Florida Law Review, Volume 65, Issue 2, Article 4. March,2014. Geyh, Charles Gardner
30Apud André Machado Mayer. Imparcialidade e Processo Penal na prevenção da competência. Lumen Iuris, p. 252-253.
31Apud André Machado Mayer. Imparcialidade e Processo Penal na prevenção da competência. Lumen Iuris, p. 252-253.
32 European Human Rights Court, Piersack vs Belgium, judgment rendered on Oct. 1st, 1982
33 Commenting on the evolution of the interpretation of the European Court of Human Rights about the impartiality of a judge, GUSTAVO BADARÓ says: “Although with variations and developments in its case-law, what is relevant is that the European Court of Human Rights took a position in the sense that a judge, in relation to whom one can legitimately fear a lack of impartiality, loses the confidence a court in a democratic society shall inspire in the persons under their jurisdiction – in a criminal process, this is firstly seen in the confidence of the accused parties themselves” (in Processo Penal, 3ª. edição, 2015, pag. 43).
34 According to AURI LOPES JR., the judge that abuses precautionary measures in the criminal scope violates the presumption of innocence guarantee: “In a legal action, the presumption of innocence implies a duty of treatment by the judge and the accuser, who shall effectively treat the defendant as innocent not using precautionary measures, and especially not forgetting that from it is assigned the burden of proof entirely to the accuser (due to the duty of treating the defendant as innocent, so the presumption must be overthrown by the accuser)” (op. cit. p. 369 – our emphasis).
35 GUSTAVO HENRIQUE BADARÓ, Processo Penal, 3ª edição, p. 45.
36 GUILHERME DE SOUZA NUCCI, Manual de Processo Penal e Execução Penal, 12ª edição, p. 38.
37 GUSTAVO HENRIQUE BADARÓ, Processo Penal, 3ª edição, p.44.
38 Cf.: LOPES JR., Aury. Direito Processual Penal, 2015. p. 47.
39Ibidem, p. 48.
40Ibidem, p. 48.
41 Cf.: Ibidem.
42 TEDH, Cubber vs Belgium, judgment of Oct. 26th, 1984.
43 AURY LOPES JR, Direito processual penal e sua conformidade constitucional. 5. ed. Rio de Janeiro: Lumen Juris, 2010. vol. I, p. 132.
44AURY LOPES JR precisely warns the following “It is becoming more common the assumption by some judges, of an ideologically committed stance to ‘fight crime’, leading to (ab) use of investigative and / or evidentiary powers that the CPP unfortunately enshrines. At this point, it hurts to death the dialectical structure which is the process and impartiality which makes a judge, a judge. That is, impartiality marks a fundamental difference in a process. This is why she is the supreme principle of the (criminal or civil) process, which falls apart, when a judge ceases to be a judge to become a judge-actor, or inquisitor, because the relationship he establishes with the management of the evidence leads to this, albeit unconsciously (…) impartiality corresponds exactly to this third party position that the State occupies in the process, through the judge, acting as higher body to the complainant and the defendant.” (in Direito Processual Penal, 12º edição, 2015, p. 334-336)
45 GUILHERME PRADO. Sistema acusatório: a conformidade constitucional das leis processuais penais cit., p. 137.
48 STF, HC 94641, Ruling by Presiding Justice Joaquim Barbosa.
JOSÉ ROBERTO BATOCHIO