Suspicion Motion 110716 1

 logo-advogados                                                              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).

Respectfully submitted,

From São Paulo to Curitiba, July 5th, 2016.

ROBERTO TEIXEIRA

OAB/SP 22.823

CRISTIANO ZANIN MARTINS

OAB/SP 172.730

JOSÉ ROBERTO BATOCHIO

OAB/SP 20.685

JUAREZ CIRINO DOS SANTOS

OAB/PR 3.374

LUIZ INÁCIO LULA DA SILVA

Syllabus:

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 casepro 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.

Suspicion Motion 110716 2

logo-advogados                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 Partyafter 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 caseencouraging 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.

  • II —

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 inexistentrequest 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.

Suspicion Motion 110716 3

         logo-advogados    

JOSÉ ROBERTO BATOCHIO

ADVOGADOS ASSOCIADOS

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

Such temporary detention is illegal and unlawful.

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

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

Article 7. The right to personal freedom

(..)

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

Article 11- Protection of honor and dignity

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

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

——————————————————————————————

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

Article 9

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.(our emphasis)

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

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

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

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

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

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

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

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

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

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

II.2 Arbitrary Breach of Telephone Secrecy

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

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

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

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

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

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

In this sense, GUSTAVO BADARÓ teaches that 4:

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

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

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

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

However, this is not the case herein.

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

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

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

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

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

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

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

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

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

Lula x Roberto Teixeira

26/02/2016 17:23:32

[…]

Transcript

(transcript starting on the 1’40”)

LILS: Hey, Roberto!

Roberto: Hello

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

(…)

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

Lula: No, no. He’s going to Brasília.

Roberto: Ah, ok then, great.

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

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

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

Roberto: Fine, you can tell him, ok.

Lula: Is it ok?

Roberto: Perfect.

Lula: Ok, bye.

Roberto: Ok, bye.”

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

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

Until when will this last…

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

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

Langley? In this case?

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

Note the following reports:

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

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

—————————————————————————————-

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

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

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

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

—————————————————————————————-

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

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

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

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Professional prerogative

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

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

Reproduction

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

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

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

Conflicts and social upheaval

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

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

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

(…)

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

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

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

Until when will this last…

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

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

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

JUSTICE CARMEN LÚCIA (PRESIDENT) – The behavior.

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

JUSTICE CARMEN LÚCIA (PRESIDENT) – movement of attorneys.

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

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

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

Are we to import Langley?

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

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

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

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

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

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

(…)

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

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

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

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

Two highly relevant facts happened on such date:

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

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

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

We provide the following examples:

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

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

—————————————————————————————-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(…)

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

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

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

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

Suspicion Motion 110716 4

logo-advogados                                             

  JOSÉ ROBERTO BATOCHIO

  ADVOGADOS ASSOCIADOS

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 inOperation 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:

2

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):

Certificate

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

16/03/2016 13:32:17

Moraes: Moraes!

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 thelegal and illegaltelephone 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 judicialcriminal 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 judicialcriminal 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.

Namely:

  • 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:

6

7

8

9

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:

11

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 Moro15.

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:

extra

a-expressao

passaporte  passaporte-2

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.

See below:

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.”:

reinaldo-azevedo

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”:

teori

muylaerte

The Social Movement “Vem Pra Rua Brasil” also celebrated the decision:

isto-eFurthermore, 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 idol17 (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 —

THE LAW

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 acquit23 (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 conflict27 (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 themseek 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).

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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 impartiality30 (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 power31 (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 impartiality33 (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 :

  1. 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:

Article 5

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).

Aury Lopes Jr4344, on the same note, concludes that:

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.

  • IV —

REQUIREMENTS

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.

Respectfully submitted,

From São Paulo to Curitiba, July 5th, 2016.

ROBERTO TEIXEIRA

OAB/SP 22.823

CRISTIANO ZANIN MARTINS

OAB/SP 172.730

JOSÉ ROBERTO BATOCHIO

OAB/SP 20.685

JUAREZ CIRINO DOS SANTOS

OAB/PR 3.374

LUIZ INÁCIO LULA DA SILVA

Witness List

1) Valmir Moraes da Silva, 1st Lieutenant of the Brazilian Army (EB); CPF 481.109.141-87; RG No. 099963943-8, Exped. M Def- EB; residing at Av Getúlio Vargas, Nr 319, Apt 31, bloco B, bairro Baeta Neves, São Bernardo do Campo, SP, CEP 09751-250.

2) Luiz Paulo Teixeira Ferreira, Congressman, with address at Praça dos Três Poderes – Câmara dos Deputados, Gabinete: 281, Anexo: IV, CEP: 70160-900 – Brasília – DF.

3) Wadih Nemer Damous Filho, Congressman, with address at Praça dos Três Poderes – Câmara dos Deputados, Gabinete: 330, Anexo: IV, CEP: 70160-900 – Brasília – DF.

4) José Mentor Guilherme de Mello Netto, Congressman, with address at Praça dos Três Poderes – Câmara dos Deputados, Gabinete: 502, Anexo: IV, CEP: 70160-900 – Brasília – DF.

5) Jandira Feghali, Congresswoman, with address at Praça dos Três Poderes – Câmara dos Deputados, Gabinete: 622, Anexo: IV, CEP: 70160-900 – Brasília – DF.

6) Vanessa Grazziotin, Senator, with address at Praça dos Três Poderes – Senado Federal, Anexo II, Bloco A, Subsolo Ala Alexandre Costa, Gabinete 03, CEP: 70160-900 – Brasília – DF.

7) João Dória Júnior, Brazilian, entrepreneur and politician, unknown qualification, with address at Av. Brigadeiro Faria Lima, 2.277, 11ª andar, Jardim Europa, São Paulo.

3 Said author is being sued by the Movant for unduly attacking his honor.

4Em 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&gt;

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.

Protocol communication – 1

Communication under the Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR)
To: Petitions Section, Office of the High Commissioner for Human Rights, United Nations
Office  at Geneva, 1211 Geneva 10, Switzerland
Filed on the 28th July 2016

2

PART I

Complainant Name: Luiz Inácio Lula da Silva, invariably known as ‘Lula’ Nationality: Brazilian Date and Place of Birth: 27th October 1945, Garanhuns, Pernambuco, Brazil

Address for Correspondence c/- Valeska Teixeira Zanin Martins & Cristiano Zanin Martins Teixeira, Martins & Advogados Rua Padre João Manuel 755, 19º andar CEP: 01411-001 São Paulo Brazil

Email: valeska@teixeiramartins.com.br  Telephone:  +55 11 3060 3310

c/ – Geoffrey Robertson Q.C. 53/54 Doughty Street Chambers London WC1N 2LS United Kingdom

Email: g.robertson@doughtystreet.co.uk  Telephone: +442076247146

Name of state against which complaint is directed Brazil (ratified ICCPR in 1992; ratified Optional Protocol in 2009)

Language  The correspondent speaks Portuguese, the native language of Brazil. As this is not an HRC language, all documents in the case will be translated into English.
3

PART II

Articles of Covenant alleged to have been violated (i) Article 9 (1) & (4) – protection from arbitrary arrest or detention
(ii) Article 14(1) – entitlement to an independent and impartial tribunal
(iii) Article 14(2) – right to be presumed innocent until proven guilty by law
(iv) Article 17 – protection from arbitrary or unlawful interference with privacy,
family, home or correspondence, and from unlawful attacks on honour or
reputation.

APPLICATION TO OTHER INTERNATIONAL PROCEDURES  This matter has not been submitted for examination under any other international procedure of investigation or settlement

EXHAUSTION OF DOMESTIC REMEDIES In each abuse of power of which complaint is made herein, there is no remedy afforded by Brazilian law or procedure which is available within reasonable time and/or which is effective. See Part IV.
4

PART III FACTS OF THE COMPLAINT
BACKGROUND

1. Lula was the elected President of Brazil, an office he held from 2003 to 2010. He is a
metal-worker who became a trade union leader and went on to found the Workers
Party, which is one of the main parties represented in the country’s Federal Congress,
i.e., in the House of Representatives and the Senate. His successor as President, Ms
Dilma Rousseff, is also a member of the Worker’s Party. Since leaving office Lula
has made a living as a lecturer and remains politically active. He is internationally
renowned as a fighter for worker’s rights and for the country’s economic and social
development, especially for the relief of poverty; in Brazil his honour and reputation
stands high, particularly among the poor, but he has many detractors all-too ready to
believe ill of him when he is defamed by judges and prosecutors who have included
him as a suspect in corruption enquiries. Such authorities try to create public
expectations of Lula’s guilt through their collaborations with media companies which
are almost all opposed to the former president and his Workers Party.

2.  Lula does not bring these proceedings out of any claim to be above the law: as an ex
President he holds no office or subsisting privilege, and he has always assisted police
and prosecutors when they requested him to provide clarification in their enquiries or
other investigative procedures. He brings these proceedings because he has been made
the victim of abuses of power by one judge, aided and abetted by the prosecutors who
attend him, and acting hand in glove with the media. These abuses cannot be
satisfactorily remedied in Brazilian law. Having been advised that certain violations
of human rights he has suffered or is likely to suffer (notably invasion of privacy,
arbitrary arrest, indefinite detention before trial, media presumption of guilt and
inability to remove a biased judge) are contrary to international human rights law,
Lula seeks a determination to this effect by your Committee in the hope and
expectation that its views on these complaints will not only provide some redress for
the violation of his rights but will assist future governments in making laws and
procedures which strengthen the fight against corruption whilst protecting the basic
rights of suspects.

3. Corruption has long been a problem in Brazil, although a recent study concludes that
it is less serious than in most countries and it tends to be exaggerated by the local
5 media.1 Nonetheless, and notwithstanding the other claims on his presidential time, Lula took a number of legislative initiatives to combat it, as did his successor.2 There
was one case, the Mensalão proceedings, that concerned alleged ‘backhanders’ taken
by a number of Congressmen and officials from various parties (including the
Worker’s Party) who have been convicted. However, an official enquiry found as a fact that Lula had no involvement.3

4. The case in which he has become a suspect is called “Operation Car Wash”
(Operacão Lava Jato). That operation happened to be within the federal jurisdiction of the state of Parana, and it fell into the jurisdiction of the judge of the 13th Federal
Criminal Court of Curitiba, Judge Sérgio Moro. He is a crusader who believes that
corruption convictions should be obtained by procedures that breach human rights. As
he explains in lectures, public hostility should be whipped up against particular
powerful political suspects, whose prosecution will become easier if it is supported by
a mob. They should be held in prison until they confess (i.e. make a plea bargain) and
they should suffer public obloquy, whether or not they are convicted. Evidence
obtained by telephone tapping which may show them or their family in a bad light
should be disclosed to the public (see later, paragraph 28). Moro has become a man
consumed by a desire for favourable self-publicity, in order to aggrandise his crusade
against politicians he alleges are corrupt, allowing books and magazines to describe
him as the “hero of Brazil” for his crusade against corruption. This is not a
disqualification for a journalist or a politician but it is wholly inappropriate for a

1 L Pagotto & A Teixeira, ‘The Brazilian Anti-Corruption Policy in Motion’ (2016) 17(2) Business Law International 103 2  Among the measures against corruption taken during Lula’s government we note: (a) the actual creation of the Office of the Inpector General (Controladoria Geral da União – CGU), a body created to fight corruption; (b) the creation of the Transparency Portal (Portal da Transparência) and the Registry of Unqualified Entities (Cadastro de Pessoas Inidôneas), which lists the entities which have been penalized and are prohibited from executing contracts with the Government; (c)  the expansion and broad qualification of members of the Federal Attorney’s Office, the Federal Police and the Financial Activities Audit Council (COAF – Conselho de Controle de Atividades Financeiras); (d) the election of the chief prosecutor of the Federal Attorney’s Office (the Attorney General) through direct votes from the members of the Federal Attorney’s Office; (e)   the ratification of the United Nations Convention Against Transnational Organized Crime  (Decree No. 5.015/2004); (f)  the ratification of the United Nations Convention Against Corruption (Decree No. 5.687/2006); (g)  the enactment of Law No. 10,763 of 2003, which increased the punishment for corruption. 3 The final report of the Comissão Parlamentar de Inquérito (Parliamentary Commission of Inquiry) considered Lula’s knowledge of the wrongdoing and concluded that “there are no facts or evidence” to implicate him. “The country’s highest authority cannot be imputed with strict liability merely because he leads the executive – that would mean he would be liable when he had no knowledge of the facts… However, there is no evidence that he omitted to act when he should have.”

supposedly impartial judge. Moro even publicly participated in the launch of a book
entitled “Lava Jato” (Car Wash), which has his picture on the cover and which treats
him hagiographically, whilst it demonises Lula by placing him “in the centre of Car
Wash”. The rights for this book were sold and will serve as basis for a Netflix series
to be launched in 2017, which following the book will presumably depict Moro as
hero and Lula as villain. It is unprecedented, in terms of security and ethical judicial
behaviour, for a judge to endorse, publicly, with a book that condemns a man whom
he will try.
5. It is an anomaly of Brazilian law that the judge who takes jurisdiction over an
investigation, and to whom it therefore falls to approve the actions, warrants and
investigative developments by police and prosecutors in the case, is also the judge
who seamlessly goes on to determine guilt or innocence after he decides that the case
should proceed to a trial before him alone. There is no jury (except in crimes against
life) and the judge sits with no assessors. Hence there can be a clear danger of bias, in
the case of a judge who has opened investigative procedures against a
suspect/defendant and ordered search and interception procedures in the hope of
incriminating him and on the assumption that he is probably guilty. Most jurisdictions
separate the investigation stage from the trial stage, but Brazil does not. All other
jurisdictions at least permit judicial recusal where the investigating judge has
displayed hostility to the defendant: this judge cannot be perceived as impartial.

6. It is a further anomaly of Brazilian law that a judge in the investigative phase can
order a suspect’s arrest for an indefinite time until he makes a ‘plea bargain’
acceptable to prosecutors. This will involve a confession, likely to have been induced
by a wish to get out of prison. The same judge who approves the plea bargain will
then turn around to become the trial judge, convicting the plea-bargainer and deciding
sentence.
7. “Operation Car Wash” has undoubtedly uncovered some serious corruption in the
national oil and petrol company, Petrobrás, as the result of the apparent unlawful
operation of Brazil’s five major construction companies, which allegedly formed a
cartel, and the desire of various parties, across the political spectrum, for secret
campaign funds. The allegation is that the construction cartel agreed to a system of
fake tendering, whereby the “winner” would be contracted in a sum much higher than
the work was worth: illicit payments could thereupon be made to Petrobrás directors
and officials who facilitated the scheme, and to politicians who politically supported
these officials. This amounts to corruption at an institutional level. Many suspects
have been arrested and some convicted – although on plea bargain confessions of
questionable reliability because they were made to obtain release from detention.

8. The complainant has always asserted that he supports proper investigation of any
crimes by the building industry cartel and any complicity in these crimes by officials
and politicians of whatever party. He has repeatedly and emphatically denied that he
has known, let alone approved, of such crimes or that he has knowingly received any
money or favours as “kickbacks” for actions or decisions he took when Brazil’s
President, or at any other time. He has refuted, in detail, allegations that construction
companies helped him buy a holiday apartment (he did not buy it) or to furnish a
country property (which was owned by friends) in return for any favour, or moreover
paid for his lectures as a quid pro quo for services rendered to them while he was
President (the lectures were given years after he left office and no evidence has
emerged for any such agreement: the lectures were all given for a fixed sum and had
no reference to any precedent or a corrupt act on the part of the President). He has
always voluntarily submitted to requests for questioning by police or prosecutors.
Nonetheless, he has had to suffer, at the hands of Judge Moro, outrageous breaches of
his privacy and a short but wrongful detention without any legal provision achieved
by Moro’s authorization of a bench warrant, and because Moro has opened
investigations into him he is likely to suffer arbitrary and indefinite detention and
unfair trial by a biased judge. Because of systematic leaks from the Judge and the
Prosecutors, the media have created a climate in which his guilt is presumed.

9. Judge Moro (who has been relieved of all other duties so he can concentrate full-time
on ‘Car Wash’) and the prosecutors (who belong to the designated “Operation Car
Wash Task Force”) led by chief prosecutor Rodrigo Janot (who is also Brazil’s
Attorney General), have made no secret of the theory upon which they are trying to
arrest and convict Lula. It is a discredited doctrine which emerged during the ‘Clean
Hands’ (Mani Pulite) prosecution in the early 1990’s of Italian political figures
(including Prime Ministers) alleged to have been in cahoots with the Italian Mafia. It
is literally translated as “domain of the fact” although it appears to be a distorted
version of the international criminal law principle of “command responsibility”. In the
view of Moro and the prosecutors, it means that when serious criminality can be
imputed to a gang, the presumption of innocence is reversed in relation to the gang
leader, who is assumed to be guilty unless he proves his innocence. Of course, there
can be no equivalence between the government of Brazil and the Italian Mafia, and
the gang involved in “Car Wash” was the construction company cartel, of which it
cannot be alleged that Lula was the boss. But in any event, “command responsibility”
(derived from the U.S. Supreme Court ruling in In re Yamashita) requires both
knowledge of the crime and approval of it by a commander, and no evidence of either mental state has emerged against Lula.4 However, in order to arouse public anger
against him and public expectation that he will be found guilty, prosecutors and the
judge have disclosed many of the seized documents and transcripts of telephone
intercepts to the local media, to create an expectation that Lula will be arrested and
found guilty. The Chief Prosecutor Janot has denounced Lula on the basis that “the criminal organisation could not exist without Lula’s participation”.5A prosecutor, who
is spokesperson for the Car Wash task force, Mr. Carlos Fernando dos Santos Lima,
has publicly declared that he is guilty. A complaint was made by Lula against this
prejudicial and improper prosecutorial conduct to the audit body of the Federal
Attorney’s Office (the National Council of Prosecutors) however this body decided
that no measure could be taken to stop him from acting that way

10. Your committee has been astute to uphold fundamental human rights in respect to the
treatment of those suspected of terrorism, and for all the righteous public anger that
can be whipped up against politicians accused of corruption, it must ensure that they
are dealt with by the same basic standards. Since the ‘Car Wash’ case began in 2014,
basic standards have been flouted and breaches of the Convention have gone
unredressed. The investigative judge believes he is empowered to abuse those he
targets by releasing for public delectation and acrimony the transcripts and audiotapes
of telephone conversations he has ordered to be taped, subjecting  suspects to
indefinite detention until they confess; acting to oppress them in ways which he
knows to be contrary to law and (with the assistance of police and prosecutors)
leaking selective confidential information to media outlets known to be politically hostile to Lula so he may be stigmatised and demonised before his trial.6

11. The complainant asks the Human Rights Council to rule on six specific breaches of
the Convention to which he has been thus far subjected:

4 In re Yamashita, 327 U.S. 1 (1946) 5 O Globo, 4th May 2016, p.3 6 See Open Letter to the International Community from Professors and Researchers from Brazilian Universities, 26th March 2016.
COMPLAINTS
Complaint 1: Article 9 (1) – The Illegal Bench Warrant of 4th March

12. This was a blatant breach of Brazilian law by Judge Moro, who must be credited with
basic legal knowledge and therefore was well aware of the unlawful and arbitrary
nature of the action he took to restrict Lula’s liberty by issuing this bench warrant. It
is well known to Brazilian lawyers and judges practising in crime that Article 260 of
the Brazilian Criminal Procedure Code lays down an essential pre-condition for
issuing a bench warrant:
“260: If the defendant refuses to give testimony in the interrogation… the competent
authority may order that the defendant be compelled to attend the investigating
authority.”

13. It is clear as crystal from the legislation, and confirmed by case-law, that this is a
compulsory procedure which deprives the suspect of his liberty (i.e. by forcing him to
leave his home and to accompany the police/prosecution team to wherever they
choose to have the interrogation and for as long as they wish to interrogate) and can
only be ordered by a judge if the defendant has explicitly refused to give testimony
previously. The judge must first subpoena the potential defendant, and only if he fails
or refuses to answer to it can a bench warrant be issued.

14. In this case, however, Judge Moro issued the bench warrant on March 2nd, 2016 for execution on 4th March. Early that morning, the fact of the raid on Lula’s house was leaked to the media, undoubtedly from the prosecution apparatus (i.e. the judge, the
federal prosecutor and the federal police). The police obtained entry to the house with
the bench warrant at 6am, and demanded that Lula accompany them – not to the
nearest police station, but to the official compound at the Congonhas Airport, an hour
from his home. Lula refused, although he stated that he would be content to answer all
the questions at his home. The police insisted he obey the warrant as otherwise he
would be put in prison. His lawyer, on establishing that the bench warrant had been
signed by Judge Moro, advised him by telephone that he had no practical alternative
but to obey it, despite its illegality. Lula therefore accompanied the police: the
photograph below shows him (front right) being led away from his apartment in a
elevator packed with police. They took him to the airport, where the questioning
continued for some four hours. As Judge Moro would have known, the news that he
had issued a bench warrant for compulsory interrogation had been  leaked to the
media. There were in consequence photographs taken of Lula as if he were under
arrest, and while he was being held in the airport that was the scene for
demonstrations and counter-demonstrations. The whole event was staged by the
prosecutors so as to give the impression that Lula was under arrest because he was
avoiding questioning, and had a case to answer.

15. This spectacle was clearly foreseeable, which makes the judge’s subsequent

lula-elevador
justification for issuing the bench warrant disingenuous. Moro claimed that a bench
warrant was necessary to secure the safety of Lula, “to avoid the disturbance of the
public order” because it was less likely that disturbances would be caused at the
airport than at the house. This was not a justification at all, since the legal pre
condition for the issuance of the warrant was never fulfilled (i.e. there had been no
refusal to testify) and so the question of public order could not arise. It was also
hypocritical, because the breakdown of public order that did occur at the airport (rival
factions gathered to insult each other) came about because the fact of Lula’s detention
on a bench warrant had been leaked to the media by the police/prosecution team.
16. In his decision on the ‘Suspicion Motion’ that sought his recusal from the case, Judge
Moro offered a new justification for his action, namely an allegation that he had
learned from telephone intercepts that Lula had heard of the warrant and was minded
to “call some congressmen to surprise them”, and that this may have interfered with
the search. However, in context, this was merely a thought that some MP’s might be
Image: Lula in the elevator, image taken from CCTV footage of the 4th March 2016
11

present as witnesses to any police action, which would have been his legitimate
entitlement. It cannot begin to justify an order for compulsory interrogation where the
suspect had not declined to be interviewed.
17. The illegal behaviour of Judge Moro was made the subject of expert comment (e.g. “Lula’s Bench Warrant was illegal and Spectacularized, say lawyers” (Conjur, 4th
March 2016, Exhibit A) and “Was Lula’s Bench Warrant Legal?” (Epoca Magazine, 8th March 2016, Exhibit A). All made the point that a bench warrant could not be
issued unless and until the suspect had refused to testify in the investigation. Not only
had Lula never been asked to testify in such investigation, but when he was requested
to provide testimony he always attended it and provided answers to all questions. The
pretence used by Judge Moro to “justify” the bench warrant, namely a fear of public
disorder, was hypocritical precisely because this was exactly the consequence which
could be foreseen from using a bench warrant to force him to testify, rather than to
allow him to testify voluntarily. The fact of the “arrest” – the compulsory detention of
the former president – was (as the prosecutors well knew, because they had tipped off
the media) calculated to give the impression that he was uncooperative and had
something to hide since he had to be subjected to a compulsory process only fit for
use against unwilling suspects.
18. This episode of the bench warrant stands out as a brazen illegality, used to damage his
individual liberty and security and to damage his public honour and reputation.
Although the period during which he was compulsorily detained was only 6 hours, the
event (and the demonstration it provoked) had enormous symbolic effect: anti-Lula
demonstrators at the airport carried effigies of the complainant in prison clothes, as if
in expectation of his jailing (see the photographs in text of Exhibit B, which were
widely published throughout Brazil in newspaper and on television). These
consequences were deliberately brought about by a hostile judge abusing his judicial
power to issue an illegal order, which he must have known would result in a spectacle
degrading to the former President’s honour, and against which he would have no
effective remedy.
19. The issue of the bench warrant was plainly a breach of Article 9(1) of the ICCPR, viz:
“1. Everyone has the right to liberty and security. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedures as are established by law.”
12

The bench warrant deprived Lula of his liberty – he was placed in compulsory detention
for 6 hours, and taken by police to an inappropriate place for interrogation. He had
volunteered to answer questions at his home, but this request was refused. The detention
was unlawful (and thereby arbitrary) since the ‘bench warrant’ procedure is only available
for those who have already refused to testify. The ‘public order’ justification for using it
unlawfully was not and cannot serve as a defence or as an excuse. This is a notorious
example of judicial over-reach by lawbreaking, in this case with the object of publicly
shaming and demonising a suspect against whom there is no significant evidence of a
criminal offence.
20. The position has been described precisely by Celso Antônio Bandeira de Mello,
Professor of Administrative Law at the Catholic University of São Paolo, in a published interview:7
“A  gross illegal act was committed. A bench warrant cannot be imposed on anyone
unless this person refuses to testify. If the person in question never refused to testify;
has a fixed place, is a person that everyone knows where to find; if the person is a
public figure, such as former president Lula, who has testified in every occasion he
was called to do so, there is no sense in ordering a bench warrant.
A bench warrant is a violent action, literally, in a case like this. If we were under the
Rule of Law, the person who ordered such illegal act would obviously suffer a
sanction for having acted beyond his jurisdiction.
Such sanction should be imposed against the judge who ordered the bench warrant.
And also against the MPF (the Federal Attorney’s Office), because it should not
comply with an order that is clearly illegal. This is an illegal order, therefore the
MPF should also be punished.
I think nothing relevant will happen. What should happen is to hold liable the judge
for said illegal act, and the Federal Attorney’s Office for having complied with the
illegal court order. This should be the procedure according to the law. But the law

7 http://brasildefato.com/br/node/34318
13

expects normality, and we are not living in an environment of normality, are we? At least I don’t think so.”8
21. Justice Marco Aurélio de Mello of the Federal Supreme Court has also commented on
the day when the bench warrant was executed:
“I didn’t understand it. A bench warrant is only applicable when an individual shows
resistance and does not show up to testify. And Lula did no receive a subpoena (…) Did he
(Lula) want that kind of protection? I believe that, actually, this argument was given to justify
an act of force. (…) This is a setback, and not a progress. (…) We are judges, not lawmakers, or avengers.”9

 

Lula testified on Friday, in page 24 of Operation Car Wash. Photo: Marcos Bizzotto / Raw Image

8 http://brasildefato.com.br/node/34318 9 http://www1.folha.uol.com.br/colunas/monicabergamo/2016/03/1746433-ministro-do-stf-diz-que-decisao-demoro-foi-ato-de-forca-que-atropela-regras.shtml
14

Photo: AFP- The Congonhas Airport was crowded with protesters for and against Lula.
22. There is no doubt, from the Committee’s jurisprudence, that Article 9(1) is engaged.
Although the detention was “only” for 6 hours, its consequences for Lula were
calamitous, in view of the publicity and the insinuation from the bench warrant that he
was hiding from justice. The Human Rights Committee includes ‘house arrest’ as a
deprival of liberty: so too is compulsory transportation for questioning (see Jaona v
Madagascar Com 132/1983, (1985) paras 13-14). The bench warrant was plainly
unlawful, and it was arbitrary as well since it was inappropriate and unjust (De
Guerroro v Colombia Com 45/1979, UN Doc CCPR/C/15/D/45/1979 (1982)). Eight
hour detention, even when lawful, has been held to be disproportionate and therefore
arbitrary: Spakmo v Norway Com 631/1995 (1999) Paragraph 6.3.
Complaint 2: Article 17 – Publication by Judge Moro of (a) authorised and (b) Illegal
and unauthorised Intercepts
23. In February 2016, having secretly applied for and received the bank and tax records of
the complainant and his family, Judge Moro approved a request to tap the telephones
of the complainant, members of his family and his lawyer (the latter action being the
subject of the next complaint). The Federal Constitution itself provides for the secrecy
of telephone calls in Article 5, item X11:
“The secrecy of correspondence and telegraphic data and telephone communications
cannot be violated, except in the latter case upon court order, or in the cases and in
the manner provided by law for the purposes of criminal investigation or at the
evidentiary stage.”
15

24. The Brazilian law on phone tapping provides, in Law 9, 296/96, Article 2, that it shall
not be allowed when:

(i) There are no reasonable indications that an individual committed or participated
in a crime, or
(ii) The evidence may be produced by other means.

25. It is the complainant’s contention that neither condition was fulfilled. Although the
law vouchsafed him no effective remedy, the fact that some interceptions were of his
calls to the President enabled the latter to seek a remedy directly in the Federal
Supreme Court. In President Rousseff’s complaint No.23.457/PR, Justice Teori Zavascki ruled (on 22nd March) that the reasons given by Judge Moro were
insufficient to justify such exceptional measures, which were taken for “merely
abusive” reasons (Exhibit C). Notwithstanding this illegality, Judge Moro had made
and received through it many transcripts of conversations between the complainant,
his family and his lawyers and other persons, which were authorized without legal
reason, but  he also authorized, in sequence, the lift of secrecy of the wire-tapped
conversations. This was a reprehensible and illegal measure (The Committee’s Article
17 jurisprudence endorses this position, namely that the State must take measures to
ensure that gathering and storage and use of personal data should not be subject to abuse or used for purposes contrary to Article 17 of the Covenant.10)
26. Article 8 of Law No.9, 296/96 provides:
“Phone call tapping, of any nature, shall be filed in separate records, attached to the
records of the police investigation or the criminal procedure, preserving the secrecy
of procedures, recordings and their respective transcriptions.”
27. It follows that a judge has no right or power or discretion to release transcripts of the
telephone taps to the media. Indeed, under Article 10 of the same law:
“It is a crime to tap telephone data and telematics communications or to breach
judicial secrecy without judicial authorization or for purposes which are
unauthorised by law.”

10 Concluding Observations on Sweden, 2009 UN DOC CCPR/C/SWE/CO/6
16

28. Notwithstanding his knowledge that what he was doing amounted to a criminal offence, Judge Sérgio Moro on 16th March 2016 released to the media various
transcripts of telephone intercepts between Lula, his wife, his lawyers, his family
(including the wives of his sons) and third parties. He released not only the transcripts
but the audio versions of the intercepted conversations, so they could actually be
played on radio and television and downloaded from websites by curious members of
the public. This was an outrageous breach of the complainant’s right to privacy, with
no conceivable justification. It was designed to cause the maximum public
humiliation and embarrassment to Lula and his family. The malice of Judge Moro is
demonstrated by his decision to release transcripts of a robust discussion between his
wife and his son about demonstrators, and a discussion between his daughter in law
and her husband’s business partner which gave rise to idle gossip. Disclosure of this
material to the press had no conceivable public interest, and was done out of malice
with the design of publically humiliating and intimidating a suspect against whom his
invasive procedures had produced no evidence of crime.
29. Judge Moro’s behaviour became even more lawless. He had finally ordered an end to the intercept, at 11.12am on March 16th 2016, when he sent an urgent notice to the
Federal Prosecutor’s Office to discontinue tapping Lula’s telephone. At 11.44am,
records confirm that this Office notified the Chief Office of the Federal Police. But
contrary to, and in disobedience of, the judge’s order, the tap was still in place at
1.32pm, when Lula called the personal office of President Rousseff and discussed
with her matters related to his appointment as Chief Minister. This conversation,
although intercepted contrary to his own order, Judge Moro decided to release to the
media that very afternoon. It was not only unlawfully recorded, as he well knew, but
irrelevant to any subject of “Operation Car Wash”. But it contained sensational
information (i.e. Lula’s impending return to the Government), and Moro knew this
would cause political upheaval. Lula’s appointment would also have the effect of
taking his case out of Judge Moro’s jurisdiction and into the province of the Supreme
Court (henceforth, the prosecution would have to proceed against Lula before a
Supreme Court judge, because he would be a government Minister) and this was a
consequence that Moro was desperate to avoid. So desperate was he that he
deliberately breached the law that required him to send the intercept transcripts
concerning the President immediately and in confidence to the Supreme Court.
17

30. Furthermore, the revelations on the transcript of the illegally recorded tape were, as
Moro well knew, of a kind to cause political sensation and mayhem, which of course
they did.  31. On March 29th, 2016, Judge Sérgio Moro provided information to the Federal
Supreme Court, in which he recognized that the lift of secrecy caused “unnecessary
embarrassments”, and he also “respectfully apologized” to the Supreme Court – but
not to Lula, who was jeopardized the most (Exhibit D). Also in this official letter sent
to the Brazilian Supreme Court, the judge made various charges against the former
president, including accusations that he intended to obstruct justice, which is a crime
in Brazil. He even made prejudicial comments about matters which are the objects of
investigations under the Federal Supreme Court, such as accusing the former
President of being the real owner of a property in Atibaia, which ownership he has
denied. This forms the subject of a charge which Moro may now bring to trial, and the
comments reveal his bias. No less than twelve times, Moro makes allegations of
crimes against Lula – a matter which will be considered under Complaint 4, the right
to an impartial judge.
32. Moro justified the release of the transcripts of the illegal tapes to the media on the
grounds of public interest, although this can be no defence. It was an excuse rejected by Justice Zavascki on June 13th 2016 when he considered the case brought by the
President:
“The public disclosure of the conversations was unacceptable… Against such an
express constitutional rule (see paragraph 22 above), it is unreasonable to say that
the public interest justified the disclosure or that the affected parties are public
figures (as if they have no right to privacy)… one must recognise the irreversibility of
the practical effects arising from the undue disclosure of the tapped telephone
conversations.” (Exhibit E)
33. Why did Judge Moro disobey the law and think (correctly) that he could get away
with doing so? Because he realised that he had, (albeit illegitimately) taped the
President (whose remedy lay under the jurisdiction of Supreme Court, and not of
Judge Moro) and that Lula, having been appointed Chief of Staff, would also be
outside his grasp, as he would henceforth would be answerable only to the Supreme Court. So the unlawful release of the tapes on the afternoon of Wednesday 16th March
was designed to create a public political outcry and to create strong pressure to
18

reverse the appointment of Lula. Moro’s release of the transcripts led to protests
against the government throughout the country, and to demonstrations demanding that
Lula be sacked and arrested: exhibited photographs show demonstrators with large
balloon effigies of Lula dressed as a convict (Exhibit F). The protests adopted the
‘spin’ supplied by the prosecutors office, namely that Lula’s appointment was not a
decision made in the public interest but rather an attempt to protect him from Moro’s
investigative jurisdiction. Moro himself justified his breach of the law on the grounds
of national interest. This is not, of course, a valid defence. Moreover, the national
interest that he invoked was in fact his own self-seeking interest in retaining power
through his capacity to indict an ex-President.
34. Moreover, the fact of Lula’s appointment as Chief of Staff was in any event announced to the public by the President’s Office on the morning of 16th March, and
it was not necessary to inform them through disclosure of telephone taps that this
would have a consequence of removing Lula from Moro’s jurisdiction – this was
obvious from the very fact of his appointment. Moro’s decision to release the
confidential transcripts gave the appointment a sinister (as well as sensational)
overtone, and was used to give the impression that Lula was anxious to escape
apprehension because he was guilty. 35. On June 13th, 2016, Justice Zavascki handed down his final decision on Moro’s
“breach of data and telephonic confidentiality” in the case brought by the President
(Exhibit E, above). He affirmed that Moro displayed lawless behaviour on two
grounds – (1) his refusal to obey the law that required him to forward the intercepts of
the President’s conversation to the Federal Supreme Court (committing “usurpation of
jurisdiction”), and (2) his unlawful decision to disclose the President’s private
conversation to the media. (See judgment, Exhibit E, paragraphs. 7, 9 &11). In his
second finding, he totally rejected Moro’s ‘national interest’ defence, which was no
defence to a deliberate breach of the law. The Supreme Court rejected Moro’s reliance
on US v Nixon as “an example to be followed” because “this court’s judicial
precedents are categorical regarding the infeasibility of using evidence gathered
without due compliance with fundamental constitutional rights.” Moro apologised,
but in grudging and limited terms (“I understand that (my) reasoning would be
considered incorrect or if correct could have brought unnecessary polemics or embarrassment”). Moro’s decision, actually delivered on March 17th 2016, was
19

“cancelled forthwith” by the Supreme Court, but the damage had been done to Lula
and Moro will suffer no consequences for his illegal actions.
36. When observing an act that may constitute a crime, the Federal Supreme Court should
have submitted a copy of the case to the Federal Attorney’s Office for legal measures,
pursuant to Article 40 of the Code of Criminal Procedure:
Art. 40.  When judges or courts verify in records and documents which are known to
them the existence of a public action crime, they shall send to the Federal Attorney’s
Office the copies and documents needed to file a charge
But this has not occurred, and such act went unpunished. The Courts’ audit body, the
National Court Council (CNJ – Conselho Nacional de Justiça), shelved several
complaints against judge Moro, filed by citizens who were outraged by his act.
37. Moreover, the case related only to the release of the wiretaps of Lula’s conversations
with the President, and not to Moro’s release of the other intercepts. These remain
valid, and Moro himself, after the proceedings returned to him from the Supreme
Court, ordered that these intercepts be used in the investigations and potential legal
actions.
38. Judge Moro should have known he was acting unlawfully, not only by disclosing the
transcript of the unlawfully intercepted conversations with the President, but also by
disclosing to the media the other intercepted conversations. Not only is the law clear,
but Brazil has recently been condemned by the Inter-American Court of Human
Rights for allowing the disclosure of secret recordings of a personal nature: see Escher v Brazil.11 This case has direct parallels with the present, and the Court’s
decision emphasises the rule that a judge who authorises the secret interception of an
individual’s telephone cannot, for political or any other purposes, self-authorise
disclosure of the transcripts to the media. It is extraordinary that no action has been
taken against Judge Moro for these actions: the seems to enjoy impunity. It would be
possible for the Government of Brazil itself to file an Action of Recourse, to remove
Judge Moro from any case involving Lula, and his proven misconduct requires that it
do so. However, Moro’s publicity campaign and media support seems to have
intimidated the responsible organs of state from doing their duty to protect those in
position of the complainant, namely as a suspect of a formally opened investigation,

11 Escher v Brazil, Inter-American Court of Human Rights 6th July 2009
20

from suffering his illegal attacks on their honour and reputation, as a prelude to his
decision to have them arrested and convicted.
Complaint 3: Article 17 – Telephone Intercept of Complainant’s Lawyer
39. Judge Moro has gone to extremes to harass and embarrass the complainant, and this
includes tapping the telephone of his lawyer and releasing transcripts and even the
audio version to the media. As a judge, Moro knows the confidentiality which in law
attaches to communications between an individual client and his lawyer. As the judge
investigating Lula, Moro would know that the distinguished attorney Roberto Teixeira
(and the firm Teixeira, Martins & Advogados, of which he is a partner) has been
Lula’s personal lawyer for over 30 years. It must be assumed that as a first instance
judge, Moro was well aware of the law relating to telephone intercepts, which may
only be ordered “in the case of evidence in a criminal investigation” if “there are
reasonable indications that the relevant party committed a crime or participated in a
criminal violation” and it is not possible to “produce evidence by other means” in
relation to a crime likely to carry a prison sentence (see Article 2, Law No.9, 296/96).
40. Despite this knowledge, Moro approved the tapping of several conversations between Lula and Roberto Teixeira. On 26th February 2016 he specifically authorised an
intercept on the central extension of Teixeira’s law firm (affecting 25 lawyers and 300
clients). When this order was lifted in March, Moro tried to excuse his authorisation:
“Despite him (Teixeira) being a lawyer, I did not identify with clarity the lawyer/client
relationship to be preserved between the former President” because Teixeira’s name
was not in one of the files objecting to a search warrant. This was disingenuous – (a)
because his name was in all other files and (b) because the lawyer who was nominated
in the particular file was Teixeira’s partner.
41.  The only other basis on which he justified his decision to approve tapping the
telephone of the lawyer and his firm was that there was evidence of Teixeira’s
involvement in the purchase of a property at Atibaia, where Lula was suspected of
being the real owner and having some favours done by property cartel members, “so
he is an investigated person and not properly his lawyer.” This is a false distinction.
Teixeira at all times remained Lula’s lawyer. The only situation in which he could
lose his legal privilege to advise his client in confidence was if he was reasonably
suspected of involvement in a serious crime. There could be no such suspicion
21

deriving from involvement as a lawyer in a property purchase, unless the transaction
itself was fraudulent or illegal, and no such evidence existed and nor did it emerge
from the transcripts of the intercepted calls. Nonetheless, Moro authorised a selective
release to the media of the conversations between Lula and Teixeira, covering the
lawyer’s advice to his client about various aspects of the client’s problems with Moro.
In other words, this judge who opens an investigation of the complainant then
authorises the interception of telephone calls with his lawyer concerning advice about
the judge and the investigation: the clearest breach of attorney-client privilege.
42. Judge Moro’s behaviour has been condemned by the Brazilian Bar Association. The
Federal Council of the Brazilian Bar Association filed a petition with the Federal
Supreme Court stating that Moro lied when he said he did not know the attorneys had
been wire-tapped. They affirmed that Moro had with him the documents furnished by
the telephone company which confirmed that the tapped phones corresponded to the
personal cell phone of attorney Roberto Teixeira and the central extension line of the
law firm Teixeira, Martins & Advogados. The Federal Council also stated: “One
cannot allow the tapping of the attorneys’ telephones to find out if their clients are
involved in a crime or not. The reason for this is there has not been any proof of
concrete elements that allow for the order of the breach of secrecy of the attorneys’
telephones, and we emphasize that Art. 5, XII of CR and L. 9,296/06 set forth that
telephone tapping is an exception, while the federal legislation provides for the
possibility of invalidating a recording that is of no interest to a case.” Its Rio de
Janeiro chapter described it as “a typical act of police states” and an attack on
democracy (“The ends do not justify the means”).
43. The Association called for Moro to be reprimanded for authorising the tapping and
releasing the transcripts, but this has not happened because neither lawyer nor client
have an effective remedy. Twice before, Moro has been censured by the Federal
Supreme Court for breaching attorney-client privilege by authorising such intercepts,
but the disciplinary body, the National Court Council (CNJ – Conselho Nacional de
Justiça), as previously mentioned, has taken no action. Neither has the Federal
Attorney’s Office. As the HRC has said, in Pratt and Morgan v Jamaica;

Protocol communication – 2

“That the legal remedies rule does not require resort to appeals that objectively have
no prospect of success, is a well established principle of international law and of the Committee’s jurisprudence.”12
The HRC has noted that the lawyer/client relationship is protected by a privilege which “belongs to the tenets of most legal systems… intended to protect the client.”13
44. There were many conversations between Lula (LILS on the transcripts) and his
attorney Roberto Teixeira, and a number of them were disclosed to the media. One
example is exhibited: the client asks his lawyer for advice about the Sao Paulo
Attorney’s office filing an information against him, and the lawyer gives it in robust
terms. The intercepted conversation has no reference to ‘Car Wash’, but Moro’s order
required it to be intercepted and he ordered its disclosure, both as a transcript and in
audio form. (Exhibit G). In his judgement on the Suspicion Motion, Moro seeks to
excuse the tapping of the law firm on the basis that the conversations were transcribed
because they were not relevant. This fact does not excuse him putting the interception
in place. Moro repeats his accusations against Lula’s lawyer, which have been
answered fully by Roberto Teixeira (Exhibit H).
Complaint 4: Article 14(1) – The Right to an Impartial Tribunal
45. The right to an unbiased judge is central to the fair trial rights enumerated in Article
14 of the ICCPR. It is an entitlement of the individual “in the determination of any
criminal charge against him” as well as in the determination “of his rights and
obligations in a suit at law.” It has already been observed that criminal procedure in
Brazil does not effectively differentiate between the stages of investigation and trial:
once a judge assumes jurisdiction over a case, and opens an investigation file in
respect of an alleged suspect in relation to a particular crime, that judge is responsible
for authorising prosecution requests for extraordinary measures (such as search and
seizure warrants, bench warrants, telephone tapping and the like); for approving
criminal charges and then for trying the case without a jury (except in intentional
crimes against life) and without other judges or assessors. This procedure is not in
itself a breach of Article 14, but as the European Court of Human Rights held in the

12 210/86, 225/87, paragraph 12.3 13 Van Alphen v Netherlands, 305/88, paragraph 5.7
23

leading case of Hauschildt v Denmark,14 pre-trial decisions made by a judge in this
position may indicate a bias against the defendant or give rise to a reasonable
apprehension of bias, and thus require the judge to recuse himself before the stage is
reached where he determines guilt or innocence.
46. In his decision on the suspicion motion, Judge Moro relies on the normal procedure
which permits a judge who gives decision at the investigative stage to sit as the trial
judge. But this cannot, of course, be permitted if those earlier decisions have given the
impression or the perception that he lacks impartiality in respect of the defendant. His
self-assessment of his impartiality cannot be allowed to prevail: the test is objective,
not subjective, and it turns on a perception of bias and not actual bias. To this extent,
it is relevant that the public perception is that Moro will arrest and convict Lula. He
may, if his evidence permits, arrest Lula, but he is manifestly disqualified from trying
and convicting him.
47. Lack of impartiality may be detected in many ways. The rule derives from the
principle that justice must be seen to be done, i.e. that reasonable lay observers should
not perceive that the judge would have a preconceived opinion about the guilt of the
defendant. In the Hauschildt case itself that was because the judge had, at an initial
stage, denied bail to the defendant on the grounds that there was strong evidence of
his guilt. In this case, the indicia of partiality on the part of Judge Moro towards Lula
are much stronger and more numerous. Several have been highlighted by the earlier
complaints, viz
(1)  Deliberately issuing  an unlawful bench warrant to detain him publicly and
unnecessarily,
(2)  Tapping his telephones and those of his family, and unlawfully and maliciously
releasing transcripts to the media, and in particular by releasing unlawfully
intercepted calls with the President.
(3)  Intercepting and releasing to the media confidential calls with his lawyer, and
making allegations of criminal conduct against his lawyer.
It is quite clear to reasonable observers from these actions alone that Judge Moro has
formed an animus against Lula and has a view about his guilt, and is striving – to the
point of acting illegally – to obtain the evidence to justify it. There are many more

14 Hauschildt v Denmark, no.10486/83, ECHR (1989)
24

actions by Judge Moro, over the past year, which have served to enhance this
perception.
48. In his judgement on the Suspicion Motion, Judge Moro brushes aside Judge
Zavascki’s findings against him as merely “part of the judicial system of mistakes and
successes.” But his identified mistake – in releasing for public delectation the
intercepted calls, including calls the interception of which was illegal, were so
serious, especially in their foreseeable consequences for Lula, that they obviously
called his impartiality into questions. Some indication of that damage can be
appreciated from examples of the publicity (Exhibit I).
49. For the purposes of this complaint, we refer to Moro’s repeated acceptance of
invitations to attend and speak at events run by groups politically hostile to Lula
which are calling publicly for his arrest and conviction. Thus he participates in events
run by or on behalf members of the Brazilian Social Democratic Party (a main
opponent of Lula and The Workers Party), events organised by the publisher of
Editora Abril, a paper that has repeatedly called Lula corrupt and demanded his arrest
and conviction, and notably an event sponsored by Veja magazine, so hostile to Lula
that it has published a doctored front cover picture of him in a convicted prisoner’s
uniform. By repeatedly placing himself with Lula’s enemies, Moro publicly signals
where his sympathies lie – i.e. against Lula and The Workers Party. In his judgement
on the suspicion motion, Judge Moro denies having participated in ‘political events’
but whether such events are ‘political’ is not the point – the fact is that these events
are promoted by Lula’s enemies, including an event organized by LIDE, a private
organization owned by João Doria Junior, who declared himself candidate (contrary
to Judge Moro’s claim) in the city of São Paulo against the Workers’ Party prior to the
event he attended.
50. An outrageous example of bias was Judge Moro’s attendance, as quest of honour, at a
party to launch a book about his Car-Wash investigation, which portrays him in a
hagiographic light and defames Lula by claiming that he is guilty of corruption. Judge
Moro – the judge at any trial – posed for pictures, subsequently published (See below,
& Exhibit J) with the author – a Globo journalist, and the author’s mother who is
well-known for condemning Lula. Press reports indicate that he was treated as a
celebrity and he actually signed copies of the book which condemned Lula. By these
actions he publicly endorsed a book which argued the guilty responsibility of a man
25

that he has the power to arrest and in that case intends to try. As a result of these
actions, there cannot possibly be other than a reasonable apprehension of bias. He
should not, while he is judging Lula, associate with people who urge his prosecution,
especially if they are honouring him or complimenting him on an investigation in
which he has made Lula a suspect. Judge Moro has on several occasions travelled to
America to give lectures on his work and to bask in favourable comments about it
from American publications such as Time and Fortune. It is wrong for him to seek
publicity for himself in relation to his work investigating and hearing corruption cases
whilst at the same time insisting upon sitting as a trial judge. It is emphatically wrong
for him to do so while claiming the right to arrest Lula and to try him.

51. It is impossible to divorce the perception of Moro’s actions against Lula from his
much-publicised theory of the crusading pro-active “attack judge” which he advances
in his public lectures (See Exhibit K). In a nutshell, he identifies corruption in Brazil
with corruption in Italian politics in the early 1990’s, and calls for a mani pulite
operation to attack it. Central to his thesis – which he sees himself implementing – is
that the effective prosecution of political corruption requires the breach of certain
fundamental human rights, namely by locking suspects up in pre-trial detention until
they confess; offering “plea bargains” in terms of light sentences if they do confess;
manipulating public opinion through leaks of evidence to the biased media so that
Image: Moro (Center) launching the ‘Lava Jato’ book which condemns Lula. (Image taken from Gazeta do Povo Article of 21st June 2016 (See Exhibit J)
26

angry demonstrations dissuade politicians from passing laws to curb prosecutorial
abuses. His lectures associate Lula with Italian Prime Minister Bettino Craxi (a target
of Mani Pulite), and he endorses public demonstrations against suspected political
leaders (citing with approval how a mob “gathered in front of Mr Craxi’s house,
throwing stones and coins at him when he left for a television interview.”)(Exhibit L).
He says that it is naive to believe that prosecutions against public figures can be
conducted “normally” (i.e. by respecting their rights) because they require “attack
judges” prepared to put pressure on suspects, e.g. by detaining them in prison, until
they confess. He claims that there is “no moral obstacle” for judges and prosecutors
to use such techniques, including leaking evidence to the media, even though he
concedes that “there is always a risk of undue harm to the honour of an investigated
person.” Indeed, he goes on to admit that because it is difficult to convict corrupt
agents, “public opinion may be a healthy substitute” instead of convictions of suspect
politicians, by “condemning them to ostracism”. He decries the presumption of
innocence, a principle which in his view is not binding.
52. These rejections of fundamental human rights in the investigation of political
corruption cannot be the public philosophy of judges engaged in corruption
investigations and trials, who are bound by a constitution and by an international
human rights law that requires them to abide by fundamental rights. No complaint is
made about Moro as a crusader against corruption: the complaint is that while he does
so by campaigning against fundamental rights he cannot be perceived as impartial
when he sits as a judge and breaches these rights. When he speaks of Craxi, and then
of the same conditions in Brazil, the analogy implies Lula’s guilt. The very fact that
his own office “leaks like a sieve” to the media, as does the prosecution office, is
evidence that he is out to destroy Lula’s honour and reputation: his leaks have
whipped up the same kind of demonstrations against Lula that he applauds against
Craxi. Were he a private citizen he would be entitled to advance these arguments
(although other countries have tackled political corruption effectively in ways that do
not destroy fundamental rights). Because he uses his office to advance them, he
thereby disqualifies himself as a judge.
53. The complainant filed a motion to seek Moro’s recusal, but this had no prospect of
success as it was decided by Moro himself (see later). There seems no prospect that the Federal Regional Court of the 4th Circuit, to which Moro is connected, will act to
remove him from Lula’s case, or that the High Council of Justice (Conselho Superior
27

de Justiça) will do so. Any consideration of the Federal Regional Court of the 4th
Circuit will be delayed beyond the time when he can, acting as a biased judge, order
Lula’s arrest and subsequently preside over his trial, then convict and sentence him.
Against this prospect, there is no timely or effective remedy
54. As a final and clinching argument for Moro’s perceived bias, there are exhibited a
number of newspaper articles over the last few months (and also a voter preference
poll conducted in view of this scenario) (Exhibit K), which expect or encourage Judge
Moro to stand for the Presidency of Brazil in 2018, an election at which Lula will
again be eligible to stand so long as he has not been convicted – by Judge Moro. The
Judge has not ruled out the ambition imputed to him by these (and many other)
articles, and must therefore be objectively considered as a potential candidate. There
could be no stronger case of perceived bias for a potential presidential candidate to sit
as a Judge on the case of a rival candidate, with a strong interest in convicting (and
therefore disqualifying) that candidate. Judge Moro decided that this objection to him
“lacked seriousness” because he was not responsible for acts of third parties. But if he
is to sit as trial judge he must remove any public apprehension that he may stand for
President, and he has, notably, not done so by denying these media stories.
55. HRC jurisprudence upholds the principle that justice must be seen to be done by a
judge whom reasonable observers recognise to be impartial. Involvement of judges in
preliminary proceedings wherein they form an opinion about a defendant is
incompatible with the requirement of impartiality in Article 14: Larranga v
Phillipines 1421/05, paragraph 7.9. Judges must not only be impartial: objective facts
giving rise to a perception of bias requires their disqualification: Lagunas Castedo v
Spain (1122/02) paragraph 9.7. Moro’s decisions to issue a bench warrant and to
disclose to the media the transcripts disqualify him from having any further power
over Lula’s cases.
Complaint 5: Article 9 – Liability to Indefinite Pre-Trial Detention
56. As explained above, Judge Moro is a strong advocate of placing suspects in detention
until they confess and make a plea bargain. In ‘Operation Car Wash’ he has put in to
practice what he preaches, and has confined many arrested suspects in prison until
they have plea-bargained, whereupon they are released and later convicted but given
light sentences. This practice is, it is submitted, contrary to Article 9. Although there
have been legislative attempts to make better provision for habeas corpus, these have
28

been publicly opposed by Judge Moro and have not yet passed in Parliament.
Although Article 9(3) of the ICCPR lays down that “it shall not be the general rule
that persons awaiting trial shall be detained in custody…” it has been a general rule
applied by Judge Moro to ‘Car Wash’ defendants.
57. This complaint is made de bene esse, in the sense that at time of writing the
complainant has not been arrested and detained. However as the target of
investigations aimed at him, he is liable to be placed in detention once Judge Moro
directs his arrest. In other words, he has been formally identified as a suspect (in a
number of investigations) and is currently undergoing a procedure (so far, including
searches and seizures, interrogation and telephone tapping) which will in all
likelihood lead to his arrest and indefinite detention without any effective remedy. On
this basis, it is submitted that he is entitled to complain of imminent violation of his
rights. He is a ‘victim’ under the Committee’s jurisprudence, because there is a real
risk of the violation of his ICCPR rights by the State: Kindler v Canada (470/91)
paragraph 13.2.
58. Preventive detention, as exemplified by the Brazilian plea-bargaining practices of
“delação premiada” and colaboração premiada, is strictly circumscribed by
international law, because pre-trial detention is a form of punishment. The Committee
Against Torture has expressed concern about lengthy pre-trial detention of the kind being ordered by Judge Moro,15 and in 2007 the UN High Commissioner noted that
the high proportion of Brazil’s prison population being held in pre-trial detention was a matter of special concern.16 In 2013 the Inter-American Court of Human Rights
reported adversely on pre-trial detention throughout the region, pointing out that
under Article 7(5) of the American Convention on Human Rights “the sole legitimate
grounds for pre-trial detention (are) the risk of the accused attempting to escape justice or hindering the judicial investigation”.17 It went on:
“[States should] use pre-trial detention only when there are no other means to ensure
the appearance of the accused at trial and to prevent tampering with evidence;
interpret restrictively the circumstances in which pre-trial detention can legally be
ordered; review the laws and judicial practices to ensure that the measure is used

15 See its concluding observations, official Records of the general Assembly, 56th Session, Supplement No.44 (A/56/44) paragraph 119(c) 16 Press Release, 5th December 2007 17 ICHR Report, p.45 paragraph 106 & p.61 paragraph 144
29

only in exceptional cases and for the shortest time possible; implement other
precautionary measures, such as bail, house arrests, or electronic bracelets…”
Consistently with this approach, the IACHR has ruled that the presumption of
innocence requires the State to bear the burden of proving that the pre-conditions for pre-trial detention exist,18 and where it is strictly necessary to curtail liberty “to ensure
that (the defendant) will not impeded the efficient development of an investigation and that he will not evade justice”.19
59. The Court has emphasized that “the personal characteristics of the supposed author
and the gravity of the offence he is charged with are not, in themselves, sufficient justification for preventive detention.”20 It follows that it cannot be sufficient to show
that a particular accused is wealthy or has rich supporters or is accused of serious
corruption. It certainly cannot be relevant for an investigative judge to use it as “a way
to highlight the seriousness of the crime and demonstrate the effectiveness of judicial
action especially in lengthy judicial systems” – all reasons that Judge Moro has given for using it.21 That approach does not focus on the facts of the case but uses the
detention as a device to demonise the defendant in the public eye. Judge Moro’s
approach in other cases has been to impose pre-trial detention because the defendant
has not acknowledged guilt, and in the case of the lack of such acknowledgement,
there is a danger that the defendant will if set at liberty continue the corrupt activities.22 In other words, Moro declines to apply the presumption of innocence,
because he assumes that the facts he has to prove by evidence are proved simply
because of his belief in the truth of those factual assumptions.
60. It is quite clear that international law prohibits detention when the purpose is to
pressure a defendant or witness to confess. Nonetheless, Car Wash prosecutor Manoel
Pastana has stated that “for the bird to sing it has to be caged” and that pre-trial
detention has “the important function of convincing the criminal offenders to
cooperate with the unveiling of penal illicit acts, obtaining the possibility of

18 Uson Ramirez v Venezuela, 20 November 2009, Series C No.207 paragraph 144 19 IACHR Report, p.60 paragraph 74 20 Bayarni v Argentina, 30th October 2008, Series C, No.187 paragraph 74 21 Means and Ends, 5th January 2015 22 See Alencar decision, 24th June 2015
30

influencing them to helpfully cooperate in the determination of liability.”23 This
amounts to an admission, by a member of the “Car Wash” apparatus, that the real
reason for pre-trial detention is to extract a confession. It goes without saying – it is
forensic experience throughout the world – that confessions extracted in these
circumstances are likely to be unreliable, and should not be used as the basis for
findings of guilt. The ‘strategy’ used by Judge Moro thus breaches the rule against
self-incrimination, a sub-rule of the presumption of innocence.
61. Article 312 of the Brazilian Code of Criminal Procedure provides that preventive
detention may be ordered “to maintain public order, economic order, for the
convenience of a criminal investigation or to secure the enforceability of the criminal
law, whenever there is evidence of a crime and sufficient indication of who committed
it.”
62. These provisions are, in their generality, wider that international law permits and must
be construed restrictively and consistently with Human Rights treaties. The ICCPR
requires pre-trial detention to serve one of a number of precise purposes: to prevent
flight, or interference with evidence, or commission of further crimes. The HRC has
therefore condemned states which have held defendants in custody to make them cooperate.24 The “maintenance of public order” – the exception under which most ‘Car
Wash’ suspects have been ordered to be detained– is vague, and must be confined to
emergency situations. Similarly, the ‘convenience’ of a criminal investigation should
be interpreted as a situation where the detainee is likely, if released, to frustrate the
investigation by fleeing or interfering with witnesses, or can be shown (from his
criminal record or his recent intentions) to be likely to commit further serious crimes.
It is submitted that Article 312 does not comply with Article 9: it lacks the ‘strict
criteria’ to regulate detention to obtain testimony, which is an exceptional measure that must be carefully and precisely regulated.25

23 This statement was given by Manoel Pestana in his opinion on Habeas Corpus C 5029050-46.2014.404.0000. Item 2, headnote of the Federal Attorneys’ Office statement. 24 Van Alphen v The Netherlands 305/88 25 John Campbell v Jamaica 307/88 paragraph 6.4
31

Complaint 6: Article 14(2) – Breach of the Right to be Presumed Innocent
63. It is well accepted in international law that a virulent press campaign can have an impact on the presumption of innocence (See Ninn-Hansen v Denmark;26 Beggs v UK).27 The fact that public officials pre-judge the defendant’s guilt, either by public
statements or ‘leaks’ to the press, is also capable of breaching the presumption (e.g. Allenet de Ribemont v France).28
64. Police have suspicions that Lula may own an apartment and a farm on which work
has been done by construction companies as a favour to him for services rendered.
Lula denies any ownership rights in either property, and in any event the impugned
work was allegedly done years after he left office. Police also suspect corruption from
the fact that several large construction companies paid him to give lectures, but so did
Microsoft and many other companies, even the Globo media network which has been
his main media accuser. Again, these lectures were given years after he left office.
Police and prosecutors have nonetheless ‘leaked’ their suspicions and their
assumptions to the media, which has published them as fact and without critical
analysis, in order to create a public expectation that Lula will be arrested and found
guilty.
65. Many Car Wash suspects have been held in detention until they plea-bargain, and the
details of the plea-bargain whenever they mention Lula or his associates are leaked to
the media, which deploy the leaked information, no matter how unreliable, to add to
the public demonization of Lula and the expectation that he will be found guilty of
corruption.
66. The main Brazilian media – newspapers, magazines and television – are all hostile to
Lula. They are led by the Globo media franchise, which is the most powerful and
most hostile to the Workers Party. Although Lula is formally a subject of
investigation, Brazilian law gives no protection to his honour and reputation in this
period, e.g. by contempt of court laws preventing the media from prejudging his guilt.
67. Judge Moro has done nothing to discourage the slander, because of his notion that
‘public opinion’ must demonstrate its support for prosecutions (to the extent of
stoning suspects and their houses – see his Craxi example). This may be why he is

26 Decision No.28971/95 ECHR 1999 27 Decision No.15499/10, 16th October 2012 28 10th February 1995, paragraphs 39-31, Series A No.308
32

prepared to destroy reputations and invade privacy. As he said to the audience at the
end of a recent press conference:
“These cases involving severe corruption crises, powerful public figures, only
proceed if supported by the public opinion and the organised civil society. And this is your role. Thank you!” 29
68. Having in this way encouraged demonstrations against Lula and other suspects, Judge
Moro at a public event saw fit to thank and congratulate the demonstrators, who were
hailing him as a hero:
“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 Car Wash.
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…”30
69. Moro’s desire to whip up public opinion so that people who believe in the guilt of
Lula shout that belief in the streets, is shared by his Car Wash ‘apparatus’, namely the
Federal prosecutors and the police. It is clear from the Committee’s jurisprudence and
from General Comment 32 on the Presumption of Innocence that “It is a duty for all
public authorities to refrain from pre-judging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilty of the accused.”31 This
principle was applied in Gridin v Russian Federation, where public assertion of guilt
by a high ranking prosecutor at a public meeting, together with prosecution leaks to a hostile media were held to breach Article 14(2).32 The same case establishes that

29 This statement was made in a lecture held in São Paulo, which was attended by several businessmen and authorities. Link: https://www.youtube.com/watch?v=hYlKkjAOv-g  30 13th March 2016, Judge Moro – Available on: <http://gl.globo.com/politica/blog/cristiana-lobo/post/sergiomoro-diz-que-ficou-tocado-com-apoio-da-populacao-lava-jato.html&gt; 31 Communication No.770/1997, Repeated in Kozulia v Belarus No.1773/2008 and Zinsou v Benin No.2055/2011 32 770/97, paragraph 8.3
33

media comment can prejudice a fair trial if there is a failure by the state to use its powers to curb it. Similarly in Saidov v Uzbekistan,33 Article 14(2) was breached
through extensive and adverse pre-trial comments by ‘state directed’ media. It is
significant when there is a link between the adverse media coverage and the state:
here the link is in the fact that the coverage is of matter ‘leaked’ from the office of
prosecutors – agents of the state, who provide information to the press in order to
assist it in vilifying the defendant. Lula’s lawyers have requested both prosecutor and
judge to have these ‘leaks’ stopped, but to no avail. They have no effective remedy,
and indeed no remedy at all.
70. The complainant has made every available effort to stop the leaks and to stop the
Federal Prosecutors from continuing to make public statements asserting Lula’s guilt.
But these efforts have been to no avail. The only remedy available against the latter
abuse is a complaint to the Prosecutor’s National Council. This Council was addressed by lawyers on behalf of the complainant on 31st May 2016. They pointed
out that Lula was being formally investigated in legal secrecy, but one of the heads of
that investigation, Carlos Fernando dos Santos Lima, was going on the media and affirming Lula’s guilt. For example, he told Radio Station Jovem Pan on March 27th:
“We clearly see payments by construction companies benefitting the former
President and his family… others who co-operated (i.e. by plea-bargains)
confirm the former President already knew about the scheme and approved
it… And he also knew about everything, he had the power and ability to hinder
the result… so in this sense he was not just being part of it, and that’s why
saying he ruled over it is correct. He is the author of the crime”
71. These verbatim statements by one of the Prosecutors acting in Car Wash,  presuppose
and urge the complainant’s guilt in a way which is contrary to HRC General
Statement 32 and to a number of HRC decisions which were drawn to the attention of
the National Council of Prosecutors. But they took no action on the grounds that they
could not reproach a member of the Federal Attorney’s Office. The Council remitted
the matter for “internal investigation” – a prolonged process which is merely
disciplinary and will not curb such conduct. In fact, Brazil’s Attorney General, Rodrigo Janot, who also acts in Car Wash, gave an interview on June 22nd to the
‘Washington Post’, agreeing that he (Janot) was “the man who makes Brazil shiver”.

33 964/01, paragraph 6.06
34

Janot suggested that Lula was at the top of a criminal organisation pyramid and that
his investigation was now ‘near the top’.
72. In respect of this complaint, the Human Rights Committee is invited to apply a
‘horizontal’ or Drittwirkung approach, requiring the state to protect against violation
of a suspect’s rights by laws (such as contempt of court) which prevent third parties
such as the media from presenting a suspect as guilty, and thereby prejudicing his
trial. Here, we have a case where confidential information is supplied or ‘leaked’ by
state agencies to the media so that they can deploy it to demonise a suspect and create
an expectation that he will be found guilty – which will make it easier for the public
to accept Judge Moro’s decision to find Lula guilty.
73. This would not happen if Brazil adopted a law that prevented a campaign of
vilification against suspects prior to their trial; a law which prevented prosecutors
from publicly urging the guilt of people they are in the process of prosecuting and a
provision that excluded prosecutors from a case if they have been found to have
publicly presumed the suspect or defendant’s guilt. This follows from General
Comment 16, in which the HRC ruled that protection must be guaranteed against all
arbitrary or unlawful interferences or attacks, whether they emanate from state
authorities or from natural or legal persons (i.e. media companies). Article 17(2)
requires states to protect those within its jurisdiction, by ensuring that everyone has
the protection of law against arbitrary attacks on their home or reputation. The
behaviour of the Federal Prosecutor and Federal Judge, in ‘leaking’ confidential facts
discovered in the course of the investigation to the media, constitutes a breach of the
presumption of innocence. There is no remedy, because requests (even from Supreme
Court Judges) to investigative and punish the leaks, have received no response from the relevant authorities.34 That is because the relevant authorities are the Federal
Prosecutor and Judge Moro.
74. A chronological spread-sheet of popular magazine covers, featuring stores based on
these leaks, is exhibited, from which it can be seen how, in 2015-16, the complainant
has suffered from a prosecution-initiated campaign of disparagement and presumption
of guilt (Exhibit M). Also exhibited (Exhibit N) is a statement by Professor Luiz

34 Petition 6171, currently before the Federal Supreme Court, which requests investigation into leaks of confidential information. Although the contents were confidential, the newspaper “Estadão” published the following news: “The Atibaia Countryside House” Complaint will be the first charge against Lula in Operation Car Wash”.
35

Moreira Gomes Junior explaining how the virulence of the press campaign against
Lula has put pressure on the judges and denied him a fair trial.

36

PART IV
EXHAUSTION OF DOMESTIC REMEDIES
1. The arbitrary detention on 4th March
75. Lula was arrested at 6am on a bench warrant that the issuing judge should have
known to be illegal. He was taken for compulsory interrogation to a police compound
in an airport. The prosecutors leaked the arrest to the press before it took place so that
the media would arrive at his house and then at the airport, and sensationalise the
story. He was released after 6 hours of police detention, having been given no
alternative but to comply with the interrogation. He was not given the opportunity to
challenge the bench warrant at the time, and the damage done to him by the publicity
was irreversible. Any complaint against Judge Moro, however, would merely be sent
for “internal investigation” by a council of judges which would not result in an
effective remedy. Any subsequent constitutional action would be met by the argument
that the litigation was a “brutum fulmen”, i.e. futile, because the case was in the past
and the damage was irreversible. Lula might sue for civil damages, but trial would be
long delayed. This illegality perpetrated by an investigatory judge through the issue of
an unlawful bench warrant has no satisfactory remedy in Brazilian law. In other
jurisdictions, it would be the subject of a Court declaration of unlawfulness, and an
order for costs and compensation. That is what Article 9 ICCPR requires. In any other
jurisdiction, it would disqualify Moro from sitting as trial judge, but an application to
this effect had to be decided by Moro himself, and an appeal could be delayed until
after he could order Lula’s arrest and could convict Lula himself.
2 & 3.  The telephone taps and their illegal release, 13th May 2016
76. Not only was evidence for the warrant for these interceptions (including the
interception of Lula’s lawyer) insufficient, but the transcripts were unlawfully
disclosed to the media by Judge Moro to the great damage of the complainant and his
family. Some of the transcripts were of tapes that had been recorded after the judge
himself had ordered the taping to stop: he knew they were illegally made, but
nonetheless disclosed their contents in the knowledge that they would arouse public
hostility against the complainant. There was no remedy available to the complainant
and his family, other than a civil action which will take years to come to trial. There
37

were transcripts of calls between the complainant and the President (Ms Dilma
Rousseff) and for this reason alone the Supreme Court had jurisdiction to entertain a complaint by her. On 22nd March Judge Zavascki ruled that the release of these
transcripts was unlawful and that the interception lacked any justification, but
nonetheless “we must recognise the irreversibility of the practical effects arising from the undue disclosure of the taped telephone conversations.” On 13th June he further
ruled (1) that Moro had unlawfully refused to forward the intercepted conversations of
the Supreme Court and (2) had unlawfully lifted the confidentiality of the illegally
intercepted conversations with the President. These rulings provided no remedy or
redress to Lula, as they covered only the release of the taped conversation with the
President, and accepted that the effects of the illegality were “irreversible”. No action
was taken by judicial or government authorities to recuse or remove judge Moro,
despite the unlawfulness of his actions, and (as pointed out above) the only appeal is
to Moro himself. In any country that purports to abide by the rule of law, a judge who
breaches the law in this way would probably be removed from office, and certainly
recused from judging the case of his victim. There is no effective way the
complainant can require action by government or by the Judicial Council. (see
paragraphs 35-37 above)

4. Lack of impartiality by Judge Moro
77. There is no effective or expeditious way in which this judge can be recused for his
obvious bias (see paragraph 49 above). That is because the appropriate motion to
recuse can only be filed before the judge himself (who is obviously an interested
party) or by a complaint petition directed to the Attorney General (Rodrigo Janot)
who has himself, in his role as Federal Prosecutor, accused Lula of being guilty. In
any event, the Attorney General merely has a discretion to initiate government action,
which does not amount to a remedy that is effective, for the complainant. Due to the
evident violation to the principle of the impartial judge, a Motion to Reject
Jurisdiction of the Judicial District of Curitiba (i.e. Judge Moro) was filed and was
duly rejected by Judge Moro. This “remedy” is obviously not efficient to guarantee a
trial with an impartial judge, as it hinges on the decision of the very judge to whom
objection is taken.

38

5. Detention without trial
78. The complainant is under formal investigation as a defendant: he is therefore liable at
any time to be arrested and detained by order of Judge Moro, and this action by the
judge is reasonably foreseeable. This judge is notorious for holding suspects arrested
in the Car Wash operation in indefinite detention until they make a plea bargain. They
have no right to habeas corpus, or to access to a court to order their release, other than
to a ‘court’ comprising of Judge Moro himself. Although the complainant has not yet
been arrested, as a declared suspect he is vulnerable to arrest at any time and is
therefore a person likely to be subject to arbitrary detention. The statute law and case
of Brazil does not provide him with an available remedy, because the law itself is so
broad that it does not comply with Article 9. It does not confine pre-trial detention to
cases where there is likelihood of flight or interference with evidence: its grounds for
pre-trial detention are so broad that they have been interpreted as enabling detention
in order to obtain a confession (i.e. a plea bargain).

6. Right to be presumed innocent
79. This Right is put in jeopardy by the persistent leaking by the prosecution to the press
of its investigative theories, seized documents, interview transcripts and plea bargains,
with the intention or at least the consequence of creating a public expectation of
Lula’s guilt and whipping up public hatred against him. There has been no attempt by
the authorities to stop these leaks, which have been approved by judge and prosecutor,
and Brazilian law does not contain any provision against contempt of court or the like
to prevent the media from pre-judging guilt. Complaints were made on behalf of Lula
to the National Council of Prosecutors about the behaviour of the Federal Prosecutor,
in publicly alleging that Lula was guilty, but this complaint was not accepted (see
above). The council merely sent it for “internal investigation”: a lengthy complaints
procedure which is merely administrative and does not satisfy the test for an effective
remedy, because it is a discretionary disciplinary proceeding; see Coronel et al v
Colombia, Communication 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002).
Moreover, it has no reasonable prospect of success (see Patiño v Panama,
Communication 437/1990 UN Doc CCPR/C/52/D/437/1990 (1994)).

39

7. Current Position 80. By Order of the Federal Supreme Court on June 13th 2016, all investigations of Lula (now numbering thirteen) were returned to Judge Moro, who on June 24th ordered that
the proceedings should resume. Lula’s suspicion motion (Exhibit O) that Moro should recuse himself was rejected on 22nd July 2016 (Exhibit P).

John Conyers Letter 31.01.17

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February 1st, 2017

The Honorable Congressman John Conyers, Jr.

United States House of Representatives

Legal update: Luiz Inácio Lula da Silva, former President of Brazil

Dear Mr. Conyers, Jr.,

In light of the letter sent to the Brazilian Ambassador Sergio Silva do Amaral, we would like to express our gratitude for your concern regarding the state of democracy in Brazil.

As attorneys to former president Luiz Inácio Lula da Silva, we can confirm that his human rights are being systematically violated, rights as basic as (i) the right to due process of law, (ii) the right to protection from arbitrary interference with privacy, and (iii) the right to a fair trial. We are sure you agree that it is important that the violations of human rights and the rule of law in Brazil must be challenged and explained to a wider audience.

We wanted to keep you informed of developments in Brazil and attach a summary of the unlawful acts that have violated the rights of former President Lula da Silva, recent developments in the lawsuits filed against the President as well as our responses. We hope this provides useful additional background for you and your office.

We also wish to draw your attention to the fact that the U.S. Department of Justice has been working closely with the Brazilian judicial officials that are responsible for the violations of former President Lula’s rights. We are concerned by reports that, in the course of this collaboration, the DOJ may have violated the terms of the 1997 Treaty between our countries on Mutual Legal Assistance in criminal matters.

You will be aware that lawmakers across the world are following this case and we would welcome the opportunity to meet with you in the coming months to brief you on the latest legal developments both in Brazil and through the United Nations. If your schedule allows we would be available to travel to Washington, D.C. to meet with you in the coming months.

Our contact details are:

Cristiano Zanin Martins

cristiano@teixeiramartins.com.br

Phone # 55 11 3060-3326

Valeska Teixeira Zanin Martins

valeska@teixeiramartins.com.br

Phone # 55 11 3060-3326

We are very grateful for you highlighting these human rights violations to a wider audience.

Cristiano Zanin Martins

Valeska Teixeira Zanin Martins

Summary February 1st, 2017

BACKGROUND BRIEFING ON THE VIOLATIONS OF FORMER PRESIDENT LUIZ INÁCIO LULA DA SILVA’S DUE PROCESS RIGHTS

I – Introduction

As former President Luiz Inácio Lula da Silva’s attorneys, we are very grateful, for the letter sent by Members of Congress to the Brazilian Ambassador Sergio Silva do Amaral highlighting deep concern about the state of democracy and human rights in Brazil. The letter also makes explicit and accurate reference to “the violations of former President Luiz Inácio Lula da Silva’s due process rights” and to the “persecution of former President Lula da Silva” in ways that violate international treaty obligations, such as those stipulated under the International Covenant on Civil and Political Rights (ICCPR), guaranteeing basic due process rights to all individuals”.

II – Facts

  • The lawfare and violations to the fundamental rights and guarantees of the former President

Since March 2016, the former President Lula has been a direct victim of several arbitrary and unlawful acts by Judge Sergio Moro and other public officials that are all part of the so-called “Operation Car Wash”. We believe that these officials are performing “lawfare” against Lula whereby they use law and legal proceedings as a way of promoting an obvious persecution of the former President, with the aim of jeopardizing and disabling him politically.

Currently, Lula is the most popular political leader in Brazil, and according to recent opinion polls, he appears to be the leading candidate ahead of the Brazil’s next presidential election in 2018.

The letter sent by Members of Congress mentions several unlawful acts by Judge Sérgio Moro against former President Lula in the scope of “Operation Car Wash”, such as:

  1. the deprivation of his liberty for approximately 6 hours on March 4, 2016, through a bench warrant, to hear a testimony that he has never refused to give, clearly breaching the requirements provided for in article 260 of the Brazilian Code of Criminal Procedure1;

  2. the interception of his private telephone calls within the period of 02/19/2016 to 03/16/2016, including the ones to his attorneys, which violates the Federal Constitution and the article 7th, item II, of Law no. 8,906/19942;

  3. the leaking of transcripts and audio recordings of those private telephone calls on March 16, 2016, contrary to articles 8th and 10th of Law no. 9,296/1996

Additional unlawful acts were performed by Judge Sérgio Moro against de former President Lula in the above mentioned period and in the scope of the cited operation including:

  1. the authorization, on March 4th, to carry out search and seizure in Lula’s home and office, and also in all of his children’s homes, without complying with the requirement of “substantiated suspicion” provided for in article 2403, §2nd, of the Brazilian Code of Criminal Procedure;

  2. the formulation of 12 charges against Lula to the Federal Supreme Court, under the pretext of explaining the leaking of Lula’s private telephone calls, acting as Prosecutor and not as a Judge.

  • The jurisdiction to judge

On March 22, 2016, the Federal Supreme Court called for all the investigation proceedings conducted by Judge Sérgio Moro that involved the former President Lula, to be handed over to the Court. This was because he usurped the Court’s jurisdiction when he intercepted and leaked the telephone call between the former President and then President Dilma Rousseff. At this time, we requested that all those unlawful acts performed against Lula be acknowledged, with the restitution of the status quo ante of the lawsuit filed against him. However, on June 13, 2016 the Federal Supreme Court acknowledged only the unlawfulness of the interception and the leaking of conversation between Lula and Rousseff, forwarding our other requests to Judge Sérgio Moro for him to assess them himself.

In other words, even after the case reached the Federal Supreme Court, no effective measure has been taken to stop the violations against the fundamental rights of former President Lula. On the contrary, the criminal actions unduly filed against him, were returned to Judge Sérgio Moro for his supervision and trial, even after he had clearly performed several unlawful and arbitrary acts against the former President.

Since then, the investigations that the Federal Police and the Federal Attorney’s Office insisted on pursuing against Lula were returned to Judge Sérgio Moro at the 13th Federal Court of Curitiba. Since then, as you rightly observed in your letter, the judge has not attempted to demonstrate even a minimal degree of impartiality.

  • The partiality of the judge

Moro has attended many public events with the presence of politicians and even candidates who are opposed to Lula, as is the case of Brazilian Social Democracy Party members (PSDB, acronym in Portuguese). For instance, he attended three events held by company of Mr. João Dória Júnior, current mayor of the city of São Paulo, when the latter was already running for the office by the PSDB. During those events, Moro was asked, publicly, by Dória himself, when he would “arrest” Lula. Moro attended other events conducted by PSDB politicians. In one of the events, held on December 6, 2016, he let himself be photographed in a very compromising situation with Senator Aécio Neves, also of PSDB. This photograph was widely publicized by the press.

These and other actions show that Judge Sérgio Moro, in addition to being biased towards Lula, does not even care to convey an “appearance of impartiality”. In this regard, he insists on being the judge of Lula’s trials, thereby continuing with the already mentioned act of “lawfare”. One of the lawsuits was announced by a group of prosecuting attorneys in a press conference broadcast by several national radio and television stations, where Lula was branded “commander” and “general” of the crimes that were being investigated by the “Operation Car Wash”, before even being considered for a trial. The prosecuting attorneys acknowledged that they did not have evidence against Lula; the accusation was based entirely on “assumptions” made by the public officials involved.

Judge Sérgio Moro and the Prosecutors of Operation Car Wash are being criminally and/or civilly sued by former President Lula due to the unlawful acts they have performed.

  • Violations to the International Covenant on Civil and Political Rights

In view of these facts, Lula will never receive a fair and impartial trial conducted by Judge Sérgio Moro. Therefore, as mentioned in your letter, we submitted a petition to the United Nations Human Rights Committee in July of 2016, highlighting the violation of three provisions of the International Covenant on Civil and Political Rights (ICCPR). The violated articles were: (i) Article 9 (1) and (4)4, which ensures protection against arbitrary arrest or detention; (ii) Article 14 (1) and (2)5, which ensures the right to be presumed innocent until proven guilty by law and, also, the right to an independent and impartial tribunal; (iii) Article 176, which ensures protection against arbitrary or illegal interferences in privacy, family, home or correspondence and against unlawful offense of honor and reputation.

We are waiting for a decision of the United Nations Human Rights Committee (UNHRC) on the admissibility of the petition. The Brazilian government has submitted information on January 27th. We will keep you informed about the progress of this case.

In the meantime, the violations against Lula’s rights persist and only seem to grow in volume. At this point, it is worth mentioning that the 4th Regional Federal Court, which decides the appeals from the “Operation Car Wash”, recently decided that this case is not subject to the “general rules”, that is, to its own legislation (Administrative Proceeding Special Court no. 00033021-32.2016.4.04.8000/RS). We believe that that this amounts to denying the application of the rule of law in a democratic manner.

  • The current status of the lawsuits

Since November 21, 2016 several hearings have been conducted before the 13th Federal Criminal Court of Curitiba to hear 27 witnesses, which the Federal Attorney’s Office summoned during one of the lawsuits filed against Lula. None of those witnesses – including the key informers of the “Operation Car Wash” – confirmed the prosecution’s hypothesis. On the contrary, the prosecution witnesses provided plenty of evidence showing that Lula did not commit the crimes he was charged with. If anything, the proceedings targeting Lula have only further confirmed his innocence.

In the last hearing held on (12/16/2016), Judge Sérgio Moro allowed a witness to insult Lula and one of his lawyers with names such as “garbage”. As if this weren’t enough, Moro went as far as to thank the witness for his rude and disrespectful comments. Those sections of the testimony were made available in the electronic system of Justice and, subsequently, were broadcast via radio and television nationwide.

On February 9, 2017, the 13th Federal Criminal Court of Curitiba will begin to hear the witnesses summoned by the defense. This will be practically the only evidence granted on behalf of Lula. Judge Sérgio Moro denied all the expert evidences requested by the former President’s defense lawyers in order to demonstrate, for instance, that he has never received any amount originating from allegedly embezzled money from Petrobras. In fact, in the scope of the Operation Car Wash so far, no expert evidence has been produced in order to effectively analyze if there has been the embezzlement of money from Petrobras and, if so, who the actual beneficiaries would be. This situation reveals that it is not a matter of the real facts, but an attempt to politically persecute former President Lula via legal means.

  • Informal or Illegal Cooperation between the Carwash Operation and US Officials

Furthermore, we are deeply concerned that the Carwash Operation Task Force, with Judge Moro´s knowledge, consent and help, has engaged in informal cooperation with members of the FBI and US Department of Justice, without going through Brazil´s Ministry of Justice, which directly violates the 1997 Treaty between the governments of the U.S. and Brazil on Mutual Legal Assistance in criminal matters. The existence of this informal cooperation was revealed to us in the course of Operation Car Wash hearings related to President Lula.

The aforementioned has even been confirmed by the British Broadcasting Corporation (BBC) reporting the presence of US officials in Brazil collaborating with the “Operation Car Wash” (http://www.bbc.com/portuguese/brasil-38172725).

  • Unexpected Event

The Honorable Brazilian Supreme Court Justice Teori Zavascki sadly and unexpectedly passed away this month. He was the judge presiding over all the “Operation Carwash” issues at the Supreme Court. The few rulings that acknowledged that Judge Sérgio Moro was violating basic constitutional rights and principles were issued by him. Thus, his death reduces significantly any expectation of having that the unlawful behavior of Judge Moro described above will cease.

III – Conclusion

This brief summary of the facts shows that the concerns expressed in your letter are indeed an accurate reflection of the current reality in Brazil and that some Brazilian public officials are engaging in politically motivated opposition to former president Lula through his persecution. In light of this and given the reports of U.S. government involvement in this case, we are at your disposal for any further clarification that you may need.

***

1 Art. 260. In case the accused does not answer to a summon to be interrogated, for recognition, or for any other act that without him cannot be fulfilled, the authority may order that he is conducted to his presence. Sole paragraph. The warrant shall contain, besides the order, the requirements stated in art. 352, as applicable.

2 Article 7th – Rights of the lawyer: (…) II – the inviolability of the lawyer’s office or workplace, as well as his working instruments, correspondence – written, electronic, telephone, and telematics – provided that they are related to the exercise of advocacy; 

3 Art. 240.  Search will be either a house arrest or a stop-and-frisk. (…) Paragraph 2. A stop and search will apply when there is a well-founded suspicion that one conceals an illegal gun or objects mentioned in letters b to f and letter h of the preceding paragraph.

4 ICCPR. Article 9. (1). Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5 ICCPR. Article 14. (1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. (2). Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

6 ICCPR. Article 17.(1). No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Process

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JOSÉ ROBERTO BATOCHIO

ADVOGADOS ASSOCIADOS

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

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

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

WRIT OF HABEAS CORPUS

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

I –

APPLICABILITY

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

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

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

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

————————————————————————————————

Art. 648.  The coercion shall be deemed illegal:

VI – when the case was manifestly void.

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

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

—————————————————————————————-

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

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

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

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

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

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

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

————————————————————————————————

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

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

II –

SUMMARY OF FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III –

FACTS DEMONSTRATING CRIMINAL COERCION

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

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

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

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

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

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

III.1.1Illegal Criminal Coercion of the Arrestee

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

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

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

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

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

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

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

(…)

(…)

(…)

(…)

(…)

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

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

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

(…)

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

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

(…)

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

(…)

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

(…)

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

(…)

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

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

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

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

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

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

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

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

(…)

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

(…)

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

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

(…)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(…)

(…)

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

(…)

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

(…)

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

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

Pure sarcasm – or cynicism?

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

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

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

5

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

6

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

7

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

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

É ilegal, ilícita, essa prisão momentânea.

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

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

Article 7 Right to personal liberty

(..)

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

Article 11 – Right to Privacy

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

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

———————————————————————————————-

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

Article 9

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.(our emphasis)

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

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

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

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

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

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

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

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

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

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

III.1.2 – Arbitrary Ordering for Wiretapping

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

But as provided by Law No. 9.296/96:

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

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

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

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

In this respect, Gustavo Badaró:

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

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

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

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

But that is not the case in these proceedings.

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

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

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

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

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

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

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

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

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

LILS x ROBERTO TEIXEIRA

TARGET

INTERLOCUTOR

DATE/TIME

DURATION

SEQUENTIAL NUMBER

55(11)963843690

55(11)30603310

02/26/2016 – 17:23:32

00:02:44

80582239.WAV

SUMMARY

MORAES x MNI – Wants to speak with NILVA,

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

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

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

TRANSCRIPTION

(Transcription from 1min40s onwards)

LILS: Hey, ROBERTO!

ROBERTO: Hello.

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

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

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

ROBERTO: Oh, ok. Great.

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

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

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

ROBERTO: Right. You can speak. Ok.

LILS: Is that ok?

ROBERTO: Perfect.

LILS: Ok. Good bye.

ROBERTO: Ok. Good bye.

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

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

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

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

Langley? Here?

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

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

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

(…)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Are we importing Langley?

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

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

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

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

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

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

(…)

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

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

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

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

Two very relevant facts occurred on that same date:

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

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

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

                                  By way of example, see the excerpts below:

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

———————————————————————————————

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

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

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

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

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

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

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

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

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

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

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

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

(…)

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

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

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

(…)

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

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

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

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

(…)

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

(…)

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

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

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

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

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

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

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

19

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

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

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

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

This is a fact.

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

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

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

Curitiba, March 16, 2016.

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

Additional signature information:

Signatory: SÉRGIO FERNANDO MORO

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

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

CERTIFICATE

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

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

Additional signature information:

Signatory: FLÁVIA CECÍLIA MACENO BLANCO

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

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

LILS x DILMA ROUSSEFF

TARGET

DATE/TIME

DURATION

SEQUENTIAL NUMBER

[redacted]

03/16/2016 – 1:32:17PM

00:01:35

[redacted]

TRANSCRIPT

MORAES: MORAES!

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

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

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

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

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

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

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

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

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

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

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

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

—————————————————————————————-

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

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

How to admit the figure of the prosecuting-judge?

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

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

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

III.1.5 – Complaint to the Federal Attorney General

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

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

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

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

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

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

(…)

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

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

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

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

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

(…)

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

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

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

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

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

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

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

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

————————————————————————————————

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

————————————————————————————————

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

————————————————————————————————

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

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

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

And that’s not all.

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

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

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

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

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

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

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

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

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

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

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

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

(…)

(…)

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

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

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

(…)

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

(…)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge: “Ok.”24

(our remarks)

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

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

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

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

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

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

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

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

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

Judge: “Ok.”

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

CONJUR website:

“BARBS IN HEARING

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

G1 website:

Audio reveals Sergio Moro mocking Lula’s lawyer

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

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

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

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

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

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

They are:

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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


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

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

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

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

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

The referred photograph is below:

In relation to Minister José Serra – also a political opponent of the First Arrestee -, it is indispensable to mention that he, in the quality of current Foreign Minister of Brazil, was the one in charge of providing information on behalf of Brazil about the Communication filed with the United Nations (UN), in July of 2016, in which the first Petitioner narrates the several violations and arbitrary acts perpetrated against him by the Judge aforementioned, which violates the International Covenant on Civil and Political Rights, namely: (i) Article 9 (1) and (4) – protection from arbitrary arrest or detention; (ii) Article 14 (1) – entitlement to an independent and impartial tribunal ; (iii) Article 14 (2) – right to be presumed innocent until proven guilty by law; and (iv) Article 17 – protection from arbitrary or unlawful interference with privacy, family, home or correspondence, and from unlawful attacks on honor or reputation.

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

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


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


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

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

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

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

It seems the answer is negative!

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

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

—————————————————————————-

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

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

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

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

Clearly not!

III.1.10 – CLEAR IMPRESSION GIVEN TO SOCIETY

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

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

28

What is left for Lula’s arrest

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

29

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

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

30

Moro will be the first to convict Lula

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

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

31

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

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

Only the lawsuit that investigates the alleged “quadrilhão

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

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

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

32

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

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

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

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

33

SCENARIO 4

(The three PSDB* candidates included)

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

  • Marina

  • Lula

  • Aécio*

  • Moro *

  • Serra*

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

III. 1. 12 – ADDITIONAL CONSIDERATIONS

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

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

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

(…)

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

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

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

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

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

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

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

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

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

03/13/2016, Sérgio Fernando Moro”

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

IV –

THE RIGHT

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

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

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

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

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

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

As observed by Enrico Tullio Liebman:

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

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

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

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

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

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

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

André Machado Mayer highlights that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————————-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V –

THE NEED FOR A GRANTURE OF PRELIMINARY INJUNCTION

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

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

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

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

In this regard, Frederico Marques reminds us that:

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

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

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

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

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

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

VI –

THE REQUESTS

In view of the foregoing, we request:

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

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

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

Grant is requested.

São Paulo, January 27, 2017.

ROBERTO TEIXEIRA

OAB/SP 22.823

CRISTIANO ZANIN MARTINS

OAB/SP 172.730

JOSÉ ROBERTO BATOCHIO

OAB/SP 20.685

JUAREZ CIRINO DOS SANTOS

OAB/SP 3.374

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

45 Ibidem, p.63

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

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

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

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