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FEDERATIVE REPUBLIC OF BRAZIL

HUMAN RIGHTS COMMITTEE

CASE NO 2841/2016 LUIZ INCIO LULA DA SILVA

REPLY ON THE ADMISSIBILITY

JANUARY 2017

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2

TABLE OF CONTENTS

1. INTRODUCTION ........................................................................................................................................... 3

2. INTRODUCTORY REMARKS ..................................................................................................................... 3

2.1 ON MR. LULA'S LEGAL STATUS ........................................................................................................ 3

2.2. THE CAR WASH CASE ......................................................................................................................... 5

2.3. ON MR. LULA'S COMMUNICATION .................................................................................................. 7

3. PRELIMINARY OBJECTION ..................................................................................................................... 17

3.1 NON-EXHAUSTION OF ALL AVAILABLE DOMESTIC REMEDIES: ONGOING CRIMINAL PROCEEDINGS ........................................................................................................................................... 17

3.1.1. WHICH COURTS ARE TRYING LULA? .................................................................................... 21

4. ANALYSIS OF LULAS CLAIMS THAT HIS HUMAN RIGHTS HAVE BEEN VIOLATED ............... 28

4.1 The allegedly unlawful subpoena ad testificandum issued on March 4th 2016 ....................................... 28

4.2 Wire-tapped phone calls and leaks .......................................................................................................... 33

4.3 Wire-tapping of Mr. Lula's defence attorney........................................................................................... 38

........................................................... 38

4.3.2 There is no evidence that the alleged victim was unable to submit a communication before this Committee personally ................................................................................................................................ 42

4.3.3 The applicant has not yet exhausted all the internal appeals set forth by Brazilian jurisdiction ...... 42

4.4 Right to an impartial judge ...................................................................................................................... 43

4.5 Being indefinitely submitted to preventive arrest .................................................................................... 47

4.5.1 The applicant is not a victim to such violation, according to the facts of the case ........................... 47

4.5.2 The applicant has not exhausted all the internal appeals available to him within the Brazilian jurisdiction ................................................................................................................................................. 50

4.6 On the alleged violation to his right to presumption of innocence .......................................................... 52

5. CONCLUSION ............................................................................................................................................. 55

INDEX OF FILES ............................................................................................................................................. 56

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3

1. INTRODUCTION

1.

2.

3.

4.

2. INTRODUCTORY REMARKS

2.1 ON MR. LULA'S LEGAL STATUS

5. As he filed his communication before the Human Rights Committee (henceforth,

"Committee"), former President Luiz Incio Lula da Silva claimed that his human rights under the

ICCPR, as promulgated in Brazil by Decree No. 592/1992, would have been violated.

6. Currently, Mr. Lula is the defendant in five criminal cases filed before the Federal Courts

of Curitiba (4th Region of the federal judicial branch) and Brasilia (1st Region of the federal judicial

branch) in connection with the following operations: Car Wash, Janus and Zealots.

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7. Mr. Lula is also currently being investigated by the Office of the Prosecutor-General of

the Republic in Brazil through inquiries 4243 and 4325, which are under the jurisdiction of the

Brazilian Supreme Court, having the aforementioned inquiries been distributed to Associate Justice

Teori Zavascki.

8. Nevertheless, former President Lula has only lodged his communication before the

Committee in relation to the alleged offences that would have been committed by the 13th Federal

Court in Curitiba, a first level court, presided by a single judge, in the southern Brazilian State of

Paran. According to the Brazilian criminal procedure law, except for jury trials, first degree

criminal courts are single-judge courts.

9. The jurisdiction of the federal courts system is defined in Articles 108 and 109 of the

Brazilian Constitution.

10. The 13th Federal Court is presided by Judge Sergio

Fernando Moro, who is competent to hear most of the the indictments and conduct trials in

connection with the Car Wash Case. Two criminal lawsuits have been filed against Mr. Lula by the

Federal Prosecution Service before the 13th Federal Court:

COURTS OF FIRST INSTANCE

Criminal Lawsuit Federal Court Judge Case

5046512-

94.2016.4.04.7000

13th Federal Court

of Curitiba

Sergio Fernando

Moro

Car Wash

5063130-

17.2016.404.7000

13th Federal Court

of Curitiba

Sergio Fernando

Moro

Car Wash

0016093-

96.2016.4.01.3400

10th Federal Court

of Curitiba

Vallisney de Souza

Oliveira

Janus

0042543-

76.2016.4.01.3400

10th Federal Court

of Curitiba

Ricardo Augusto

Soares Leite

Car Wash

0076573-

40.2016.4.01.3400

10th Federal Court

of Curitiba

Vallisney de Souza

Oliveira

Zealots

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BRAZILIAN SUPREME COURT

2.2. THE CAR WASH CASE

11. The investigations carried out under the Car Wash Case are not focused on Mr. Lula. The

Car Wash operation commenced in Curitiba in March 2014. In its early stages, it only comprised

investigations in connection with three internal departments of the state-owned oil company

Petrobras S/A.

12. As the investigations progressed, and as two defendants decided to sign cooperation

agreements with the Federal Prosecution

Service, a huge scheme of unlawful financing of electoral campaigns was found out. Such a scheme

benefited politicians from various political parties through the use of overpriced or fraudulent

contracts signed with Petrobras or its subsidiaries. Brazilian and foreign companies signed

overpriced contracts with Petrobras and paid commissions, bribes or kickbacks to public officials and

politicians.

13. This is the largest investigation of a corruption case in the history of Brazil, which led to

the suspension of a Senator and some Federal Representatives. Amongst them, the former Speaker of

the House of Representatives, Mr. Eduardo Cunha (from the political party PMDB), who presided

over the impeachment of former President Dilma Rousseff, who is Mr. Lula's ally and political

successor. Currently, Mr. Eduardo Cunha is being held in custody by order of the 13th Federal Court

of Curitiba, before which criminal charges against Mr. Lula have been pressed. One must bear in

mind that Mr. Lula is defending himself against the criminal charges pressed against him in freedom.

He has never been arrested.

14. Car Wash is also the largest trans-national investigation ever carried out by Brazilian

Inquiry Court Assigned Justice Case

4243 STF (Brazilian Supreme Court)

Teori Zavascki Car Wash

4325 STF (Brazilian Supreme Court)


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authorities. In November 2016, the Federal Prosecution Service in Curitiba, Rio de Janeiro and

Brasilia, had issued 123 international co-operation requests addressed to 34 countries to obtain

evidence for Brazilian criminal lawsuits, the extradition of fleeing accused persons and assets

recovery.

15. The name Car Wash came from the evidence that the black market dealers used a fuel

station for a great scheme of corruption involving Petrobras' high-ranking employees and money

laundering. In the course of the money laundering investigations, the Federal Prosecutor's Office, the

Federal Tax Agency and the Federal Police detected evidence that resources were diverted to illegal

purposes through large contracts. Directors of several departments of Petrobras were chosen by

political parties to divert resources to political campaigns.

16. Much of the profit of the corruption scheme has undergone money laundering and sent

overseas, deposited in offshore accounts in several countries, usually in the name of third parties

from different companies. In addition, many pieces of documentary evidence were stored on

computer servers located overseas, which has made it difficult to have access to them through

Internet.

17. Between 2004 and 2012, the directors of the different boards of the corporation Petrobras

were selected by political parties, in order to facilitate the funding of political campaigns with slush

funds.

18. The Brazilian Federal Prosecutor's Office has also discovered that construction

companies which had signed contracts with Petrobras (the biggest Brazilian contracting company)

settled a cartel. These companies started making previous arrangements among themselves to win

bids.

19. Information and evidence on Mr. Lula which led federal prosecutors to consider him a

suspect only came up later in 2016. Investigations were carried out in Curitiba and Brasilia, and Mr.

Lula was indicted by the Federal Prosecutor's Office before the 13th Federal Court, where he is now a

defendant.

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2.3. ON MR. LULA'S COMMUNICATION

20. Luiz Incio Lula da Silva's communication against Brazil before the Committee is based

on the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which

was enacted in Brazil by Decree No 311 of June 16, 2009. Although it is not yet in force internally,

this does not affect its international validity in relation to Brazil. Interestingly, its internal validity

has not yet come into effect due to a lack of presidential decree, which should have been published in

the Official Gazette. Its validity could easily have been decreed in 2009 by Mr. Lula himself, as he

was then the Brazilian President of the Republic.

21. As a conventional body within the United Nations system, the Committee is competent

"to receive and consider communications from persons subjected to its jurisdiction who claim to be

Article 1 of the Optional Protocol sets forth.

22. In his communication, former President Lula, who is now a defendant in five criminal

cases in the Brazilian jurisdiction, claims that the following articles of the ICCPR have been

violated:

i) Article 9 (1) and (4) - protection against arbitrary arrest or detention ii) Article 14 (1) - the right to an independent and impartial tribunal iii) Article 14 (2) - the right to be presumed innocent until proven guilty by law iv) Article 17 - protection against arbitrary or unlawful interference with privacy, family, home or correspondence and against unlawful attacks on honour or reputation.

23. As a requirement of admissibility of his communication, Mr. Lula claims, albeit falsely,

that there allegedly is no remedy or procedure available in a timely or effective manner in the

Brazilian legislation that could protect him against the supposed abuse of power that he would have

been a victim of. However, as is demonstrated below, Mr. Lula presented his communication without

having made use of all domestic remedies available. Therefore, pursuant to Articles 2 and 5(2)(b) of

the Optional Protocol, this communication is not admissible before all the available remedies in the

Brazilian jurisdiction have been duly and timely used.

24. Indeed, former President Luiz Incio Lula da Silva presented a distorted version of the

facts to the Committee. It can be said that Mr. Lula's communication is not likely to oblige the State

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to repair any violation of individual rights, once domestic remedies have not been fully exhausted

yet.

25. Mr. Lula's defence attorneys are fully publicising every step of the procedure before the

Committee, as la's lawyers file complaint at the UN's Human Rights

can be accessed through the following URL:

http://lula.com.br/en/lulas-lawyers-file-complaint-uns-human-rights-comittee-against-judicial-

abuses. .

26. The fact is that any citizen can file a communication before the Committee. This is an

important right for everyone in the State parties. As a consequence, States must provide an answer to

such a communication, which is what Brazil is doing now. As regards the prior examination of Mr.

Lula's communication, one must mention that it attempts to mislead the Committee, as it intends to

paint an unrealistic picture, in which the Brazilian Judiciary and all its degrees of jurisdiction would

not allegedly be able to remedy eventual damages suffered by him. As we shall demonstrate in due

time, such claims are far from true.

In practice, what Mr. Lula has been doing is filing as many "stricto sensu" appeals and other remedies as he possibly can, such as disciplinary representations and claims, to hinder actions which he defines as violating the Federal Constitution, international treaties to which Brazil is a party, and/or the Code of Criminal Procedure.

27. His attempt to discredit the Brazilian Judiciary and the country's internal control bodies,

as well as its oversight ones (such as the National Council of Justice and the National Council of the

Prosecutor's Office), should be disregarded by the Committee. Contrary to what Mr. Lula claims, he

has no legitimate reason at this point to question the correctness of Brazilian judicial procedures

which he still can use to challenge the alleged violations.

28. As a matter of fact, both Mr. Lula and his political successor and ally, former President

Dilma Rousseff, were the ones who named the majority of the Justices who still to this day are in

office in the two highest Brazilian Courts, namely: the Brazilian Federal Supreme Court (STF) and

the Superior Court of Justice (STJ). Mr. Lula and Ms. Rousseff named such persons between 2003

and 2016. One must assume that Mr. Lula and Ms. Rousseff, as Heads of State and Government as

they were, would have appointed, to the best of their abilities, the best possible Justices to try all

Brazilians, especially the ones who have their seats in the highest courts of the Brazilian judicial

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branch.

29. Furthermore, in the case of former President Lula, there has been a regular and timely

assessment of the alleged damages to his rights by the Brazilian judicial authorities in many degrees

of jurisdiction. Indeed, whenever they ruled over an appeal on this case, the Federal Circuit Court of

the 4th Region (Court of Appeals responsible for the state of Paran, where Curitiba is the capital

city), the Superior Court of Justice (a Court with competence to hear appeals from all over the

country, which acts as a cassation and jurisprudence standardisation court for legal but not

constitutional matters) and the Federal Supreme Court (the highest Brazilian Court, whose

competence involves constitutional appeals in the highest degree of jurisdiction originating from all

over the country) have acted promptly to decide on writs of habeas corpus, complaints and other

sorts of appeals under the Brazilian law, which offers many domestic remedies, including many

means to appeal.

30. As far as the Car Wash Case is regarded, Mr. Lula has been regularly granted the right to

due process of law. He has freely chosen his attorneys to defend him before the 13th Federal Court of

Curitiba, as stipulated by Article 14 of the ICCPR (due process). Among the rights which he has

been granted are the following: right of previous and thorough knowledge of the criminal charges

filed against him, right to a defence attorney, right to have the legally provided time to answer

charges brought against him, right to file a preliminary answer to charges, right to trial, right to

appoint witnesses to be heard during trial, right to cross-examine witnesses brought by the

prosecution, as well as the right to a public lawsuit and trial.

31. In addition to the regular means of defence, which are requisites of the due process of

law, Mr. Lula has also filed appeals against court orders issued by Judge Sergio Fernando Moro of

the 13th Federal Court of Curitiba. In addition to that, he was also allowed to file motions for bias,

which are the appropriate motions to request that Mr. Sergio Moro be not allowed to rule over Mr.

Lula's two criminal trials, which are to take place in Curitiba.

32. Additionally, Mr. Lula has also filed civil lawsuits for damages (civil liability) against

one of the chiefs of police in charge of criminal investigations (Head of Police Philip Hille Pace),

and against the prosecutor Deltan Martinazzo Dallagnol1.

1 Available in: http://www.averdadedelula.com.br/pt/2016/12/15/lula-aciona-dallagnol-na-justica-por-coletiva-do-

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33. Moreover, the author of the communication also filed disciplinary complaints against

federal prosecutors for disciplinary sanctions to be applied by the Inspector-General of Internal

Affairs or by the National Council of Prosecution Services (CNMP). The latter is a constitutionally

established agency for external control of Brazilian prosecution authorities. It was created by the

Constitutional Amendment No. 45 of 2004, when Mr. Lula was the President of Brazil. Similarly,

Mr. Lula filed disciplinary complaints for disciplinary sanctions to be imposed against judge Sergio

Moro before the National Council of Justice, the constitutionally established agency for external

control of the judicial branch, which was also created in 2004.

34. All these procedures have been carried out freely and publicly, as befits the rule of law,

which can be demonstrated by the constant news in Brazilian newspapers, TV news and on the

Internet informing the people of each new claim or appeal filed by Mr. Lula in order to preserve the

same rights which he claims have been violated.

35. So as to illustrate how widely and freely Mr. Lula has been able to answer the charges

filed against him, one may visit his website, http://lula.com.br/, in which one shall find many articles,

some in foreign languages, wherein Mr. Lula publicises his answers to the charges filed against him.

One of these articles, entitled Why they want to condemn me, was originally published in Portuguese

in October 2016 in the newspaper Folha de So Paulo, one of the most traditional and well-known

Brazilian newspapers: http://lula.com.br/en/lula-why-they-want-condemn-me.

36. The URL http://lula.com.br/justica, which can be accessed through former president

Lula's website, lists several articles that demonstrate the many motions and appeals that he has used

throughout criminal investigations and the criminal lawsuits in order to defend himself.

37. There is also a second site that serves as a repository of all answers, remedies and

appeals filed by Mr. Lula. This is the site "Lula's Truth" ("A Verdade de Lula", in Portuguese),

which is available at http://www.averdadedelula.com.br/pt/. According to his own description, "this

website was created so that I can bring you the truth of the facts. It also brings you every action I've

taken in order to tell you my truth against the many lies told about me by the media":

powerpont/.

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ABOUT US2: This space works with the real facts involving Lula da Silvas family. It brings forward all legal measures taken in order to retrieve the truth before innumerous manipulated information, at different levels. It contains legal work, press releases and others, judicial and extra judicial legal work accomplished by the attorneys for the clients protection.

38. In the "Legal" tab ("Jurdico", in Portuguese), Mr. Lula's defence website lists many

measures he has taken to defend his human rights before disciplinary (administrative), criminal and

civil bodies. The website provides motions and news regarding the following legal instruments that

Mr. Lula has been freely using: court's internal appeals, civil lawsuits, allegations of conflicts of

competence, the right to rectify news from the press, appeals and motions, writs of habeas corpus,

trial briefs, requests for action, requests for certificates, requests for restitution, several petitions,

criminal complaints, motions and disciplinary complaints, which have all been filed by either Mr.

Lulas defence attorneys or by his family members' attorneys.

39. One of the measures reported concerns a civil lawsuit filed against Delcdio Amaral, a

former senator and member of the Workers Party (PT), who served as a cooperating witness in

criminal proceedings against Mr. Lula, and who has entered a cooperation agreement with the

Federal Prosecution Service:

DAMAGES REPRESENTATION AGAINST THE FORMER SENATOR DELCDIO AMARAL3 11 November 2016

this date (Nov. 11, 2016) against former Senator Delcdio do Amaral, since he lied in his plea bargain agreement statement when he said that our client acted to obstruct justice. All the five witnesses heard in the public hearing held on Nov. 08, 2016 at the 10thFederal Court of Braslia unanimously stated that has Lula never attempted

greement, which contradicts what Delcdio do Amaral said. As the pillars erected by members of the Operation Car Wash task force to incriminate Lula fall apart, it is not surprising that Isto magazine makes a sensationalist move by publishing its weekly issue earlier in order to make a new frivolous accusation without any evidence against the former president. By the way,

-bargain agreement statement using the same measure of publishing its issue earlier. When the magazine raised suspicion that Lula received undue advantages the way it did acknowledging its difficulty to prove what it published, it attributes to Lula the negative or diabolic evidence. This is undoubtedly a very convenient resource for

2 Available in http://www.averdadedelula.com.br/en/about-us/. 3 Available in http://www.averdadedelula.com.br/en/2016/11/11/damages-representation-against-the-former-senator-

delcidio-amaral/.

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opinion is being long prepared for a plea bargain agreement statement that would

incrimination against the former president. We have already identified this tactic in the list of perverse measures adopted by lawfare manipulation of laws and legal procedures for political persecution purposes. The truth is that, after Operation Car Wash has infringed the privacy of Lula, his family members, and collaborators, no illegal money was found in Brazil or abroad; therefore, the need to make up the absurd version of cash money, which Lula has never received. Those responsible for the news article will be sued for the civil and criminal unlawful acts they committed in this publication.

40. The same website has the full English version of the motion for bias (therein titled

"suspicion motion") filed by Mr. Lula against federal judge Sergio Moro, as available in

http://www.averdadedelula.com.br/wp-

content/uploads/2016/10/SuspicionMotion1107162compressed.pdf.

41. Motions for bias are a procedure stipulated by the Brazilian Criminal Procedures Code

whose aim is to ensure that the parties shall be granted the right to an impartial judge.

42. Interestingly enough, Mr. Lula has decided to use the same criminal courts which he

claims to be flawed, distorted and biased against him in order to criminally sue journalists who have

published news which he believes are libellous. Paradoxically, while claiming to be abused by the

Prosecution Service and by the Judiciary, Mr. Lula, nevertheless, has filed criminal lawsuits against

journalists, which one might think constitute a threat to freedom of the press and to freedom of

speech.

43. He also filed a criminal complaint against federal judge Sergio Moro, which only comes

to prove that Mr. Lula has been using all criminal and civil remedies under Brazilian law against

public officials, prosecutors and judges who have worked in criminal cases against him. This may be

described as "lawfare", so as to use an expression to the taste of his defence attorneys, who have

been employing this term to attempt to implicate the Federal Prosecution Service in this kind of

practice simply because it has exercised its constitutional duty to investigate and prosecute crimes

(Article 129, item I).

44. The following are news clips of the criminal action filed by Mr. Lula against judge

Moro, along with others filed against journalists, as well as against Senator Ronaldo Caiado. All of

these can be found in Mr. Lula's website:

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LULA AND HIS RELATIVES SUE MORO OVER ALLEGED ABUSE OF POWER November 18, 2016 As the lawyers of former President Luiz Inacio Lula da Silva, his wife and children we have filed today (11/18/2016) a subsidiary criminal complaint against federal public official Sergio Fernando Moro, because of his abuse of power. On 06/16/2016, Lula and his family have filed a representation with the Office of the Prosecutor- CRIMINAL COMPLAINT - JOICE HASSELMANN / VEJA TV - DUE TO A VIDEO DEFAMING LULA October 20, 2015 Luiz Inacio Lula da Silva x Joice Hasselmann - Lawsuit 0090009-33.2015.8.26.0050 - SP SUMMARY* Criminal complaint against Joice Hasslemann due to a video defaming Lula Criminal Complaint CRIMINAL COMPLAINT - MARCO ANTONIO VILLA - DUE TO DEFAMATION CRIME September 14, 2015 Luiz Inacio Lula da Silva x Marco Antonio Villa - Lawsuit 0078212-60.2015.8.26.0050 - SP SUMMARY* Criminal complaint against Marco Antonio Villa for defaming Lula while reading the news at the 07.20.2015 edition of "Jornal da Cultura". Criminal complaint CRIMINAL COMPLAINT - JOURNALISTS ROBSON BONIN and ADRIANO CEOLIN / VEJA MAGAZINE - DUE TO AN ARTICLE IN WHICH THE AUTHORS ATTEMPTED TO CONNECT FORMER PRESIDENT LULA TO SEVERAL CRIMES August 6, 2015 Luiz Inacio Lula da Silva x Robson Bonin and Adriano Ceolin - TJDF - Lawsuit 0026745-23.2015.8.07.0001 - DF SUMMARY* Criminal complaint against Robson Bonin and Adriano Ceolin, Veja magazine reporters, due to an article published on the magazine's July issue, which linked Luiz Inacio Lula da Silva to several crimes

laint CRIMINAL COMPLAINT - JOURNALIST DANIEL PEREIRA / VEJA MAGAZINE - DUE TO ARTICLE PUBLISHED August 6, 2015 Luiz Inacio Lula da Silva x Daniel Pereira - Lawsuit 0026746-08.2015.8.07.0001 - DF SUMMARY* Criminal complaint against Daniel Pereira, a Veja magazine reporter, due to an article published on the magazine's July issue, which linked Luiz Inacio Lula da Silva to several complaint CRIMINAL COMPLAINT - SENATOR RONALDO CAIADO - DUE TO DEFAMATORY REMARKS MADE PUBLIC THROUGH THE DEFENDANT'S FACEBOOK ACCOUNT ON 06/25/2015 July 30, 2015 Luiz Incio Lula da Silva x Ronaldo Ramos Caiado - STF - Lawsuit 0005151-33.2015.1.00.0000 (Inquiry 4097) SUMMARY* Criminal complaint against Senator Ronaldo Caiado concerning defamatory remarks made public through the defendant's Facebook account on 25.06.2015 Criminal complaint

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CRIMINAL COMPLAINT - JOURNALIST LEANDRO MAZZINI / COLUNA ESPLANADA - LIBELLOUS NOTES CLAIMING THAT FORMER PRESIDENT LULA IS SECRETLY UNDERGOING CANCER TREATMENT AGAIN June 24, 2015 Luiz Incio Lula da Silva x Leandro Mazzini - Lawsuit 0010023-63.2015.8.07.0016 DF SUMMARY* Criminal Complaint - journalist Leandro Mazzini / Coluna Esplanada - libellous notes claiming that former President Lula is secretly undergoing cancer treatment again CRIMINAL COMPLAINT - SENATOR RONALDO CAIADO - DUE TO DEFAMATORY REMARKS MADE PUBLIC THROUGH THE DEFENDANT'S FACEBOOK ACCOUNT ON 02/25/2015 February 25, 2015 Luiz Incio Lula da Silva x Ronaldo Ramos Caiado - STF - Lawsuit 0004636-95.2015.1.00.0000 (Inquiry 4088) SUMMARY* Criminal complaint - Senator Ronaldo Caiado - due to defamatory remarks made public through the defendant's Facebook account on 02/25/2015 Criminal complaint Also worth mentioning are the writs of habeas corpus filed by Lula before several courts to reverse alleged illegalities:

45. Also worth mentioning are the writs of habeas corpus filed by Mr. Lula and his relatives

before Brazilian courts to reverse alleged illegalities4:

LULA'S DEFENCE ATTORNEYS FILE A WRIT OF HABEAS CORPUS AGAINST RULING BY JUSTICE GILMAR MENDES March 20, 2016 The following jurists also undersign the document: Celso Antonio Bandeira de Mello, Weida Zancaner, Fabio Konder Comparato, Pedro Leiva Alves Pinto Serrano, Rafael Valim, Juarez Cirino dos Santos. They require that the return of the procedure to Judge Sergio Moro be stayed. TJSP GRANTS WRIT OF HABEAS CORPUS March 2, 2016 Habeas corpus - The measure seeks to release Lula's family from having to abide by a bench warrant to testify before the Prosecution Service/SP02. Luiz Inacio Lula da Silva, Marisa Leticia Lula da Silva x Cassio Roberto Conserino, Zenon Lotufo Tertius - TJSP HC 2041022-48.2016.8.26.0000 - SP

46. The above matter stands as evidence that Mr. Lula did indeed have access to effective

and swift means to protect himself from having his rights violated. In fact, his family filed a writ of

habeas corpus before the Court of Justice of So Paulo, a state appellate court, and obtained as a

result an order to prevent the use of subpoena to compel them to appear in court (i.e., before the very

act itself, they had got a remedy against it).

47. On the same website, this piece of news explains some of the events of Mr. Luiz Incio

4 Avaible in http://www.averdadedelula.com.bripticategory/juridico/habeas-corpusilula-pt-habeascorpus/.

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Lula da Silva`s case and the legal achievements of his defence in 20165:

2017: THE YEAR OF LULA'S TRUTH December 29, 2016 2016 comes to an end and the Car Wash Operation has not produced one single piece of evidence which incriminates former President Luiz Incio Lula da Silva. His detractors tried it all in vain. Their malicious efforts came to nothing when 27 witnesses selected by the Federal Prosecution Service to accuse Lula did achieve the opposite. None of them presented any facts that could confirm the criminal charges filed against the former President, wherein he would allegedly have taken part in crimes. This was certainly an unexpected outcome for Lula's detractors. Nevertheless, 2016 was still a year in which many absurdities were committed against the former President. Legal procedures were abusively and frivolously used (in what can only be interpreted as "lawfare") to repress Lula politically. The year's chronology is full of unacceptable facts. On March 4, a court of first degree in Curitiba issued a subpoena to force Lula to testify, although he had never failed to answer a summons for this purpose, as required by law for such instances (Criminal Procedure Code, Article 260). The legal grounds for that subpoena ad testificandum was to provide Lula with "safety" while he was testifying. However, he was taken to testify at Congonhas Airport in So Paulo (SP), one of the most crowded venues in Brazil, where people from all over the country come and go, and specifically in a room surrounded by glass walls

that almost were smashed down. On March 10, private conversations of Lula, his family members, employees and even his lawyers were broadcast, having the release of such conversations been authorised by the same judge of Curitiba. Amongst them, there were even talks between Lula and then President of the Republic Dilma Rousseff, which had been wire-tapped without a court order. The law prohibits the disclosure of wire-tapped conversations (Law No. 9,296/96, Article 8), and even defines this kind of conduct as criminal (Law No. 9,296/96, Article 10). The purpose of broadcasting these conversations had nothing to do with the court case. The broadcast was politically motivated. It was done so as to hinder Lula from taking office as Chief of State, although he was not legally or constitutionally impeached to take such office. The Brazilian Supreme Court decided to hear Lula's case, after the judge of Curitiba had usurped their jurisdiction to authorize the disclosure of telephone conversations which had been wiretapped from extensions used by Dilma Rousseff. Under the pretext of "apologising" to the Supreme Court, the judge from Paran filed 12 criminal charges against Lula, therefore acting as a prosecutor and not a judge. Amidst this turmoil, Justice Gilmar Mendes issued injunctions without consulting with his fellow Justices in two writs of mandamus filed by opposition political parties, which had been assigned to him by related-case designation, based on a (preposterous) individual injunction filed to question the matter. All abuses committed bv the Curitiba judge were the subject of an administrative complaint filed in June before the Office of the Prosecutor-General of the Republic, requesting that the judge be punished for abuse of power and for allegedly having committed the crime set forth in Article 10 of the Wire-tap Act. In June, the Brazilian Supreme Court decided to cancel only the wire-tapped conversation which involved Lula and Dilma. In relation to

5 Avaible in http://www.averdadedelula.com.br/pt/2016/12/29/2017-o-ano-da-verdade-de-lula/

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other illegalities identified by Lula's defence attorneys, the Court preferred to return the files to the judge of Curitiba, so that he could judge his own "misdeeds". This situation led Lula to send a communication to the UN Human Rights Committee regarding the violation of three provisions of the International Covenant on Civil and Political Rights adopted by the United Nations. The matters questioned were: (i) the right not to be arrested through means of 'illegal court orders; (ii) the right to privacy; and also (iii) the right to a fair and impartial trial. It was the first communication made to the UN Human Rights Committee by a Brazilian citizen, as provided by a treaty to which Brazil is a party since 2009. The Brazilian government must provide information regarding this communication until 01/27/2017. In the ensuing months, the Federal Prosecution Service used one of its "lawfare" tactics, filing a string of unfounded criminal complaints against Lula. In September, Lula became the target of a grotesque accusation made on national television by the coordinator of the Car Wash Task Force. The fact later motivated Lula to sue the Federal Prosecutor for pain and suffering. Also in September, the Federal Circuit Court of the fourth Region, which is competent to consider the appeals filed in connection with the Car Wash Operation, decided that the operation is not subjected to the "general rules", therefore constituting an "ad hoc" trial. In November, as nothing had come out of the administrative complaint filed before the Federal Prosecution Service against the Curitiba judge, Lula and his family filed a subsidiary criminal complaint before the Federal Circuit Court of the 4th Region. This lawsuit is a camera proceeding, in which Lula wishes to have the Curitiba judge's abuse of power investigated, as well as his alleged criminal action of illegally wire-tapping Lula's conversations. As 2016 drew to its end, many hearings took place in Curitiba, whose objective was to hear accusation witnesses: all to no avail, as Lula's truth prevailed. An important detail is that the Prosecutor who had accused Lula on television did not attend any of these hearings. Such hearings were presided over by the same Curitiba judge, who is criminally sued by Lula, and whose personal life is fraught with episodes of taking part in public events where Lula's and PT's (Workers Party) political adversaries are present. During the Last hearing, the judge allowed Lula and his lawyers to be called "scum bag" by one of the witnesses. And at the end of the same hearing, he felt comfortable enough to address Lula's lawyer ironically. However, this judge from Curitiba is not willing to acknowledge his bias; he insists on "trying" the former President. A journalist who hosted this judge from Curitiba in Rio de Janeiro published on social networks in early December that Lula will be found guilty of charges "in the beginning of the year [2017]". This journalist has been summoned to court to explain what he had meant by that. The defence believes that in 2017, LULA's TRUTH will prevail. And we will leave behind such brutal chronicles of abuse and arbitrariness. This is necessary so that justice prevails and the rule of law indeed becomes reality. Brazil deserves it.

48. This explanation in Mr. Lula's website shows that there are effective, timely remedies in

Brazil to challenge judicial errors or human rights violations and that the author of the

communication had benefited from them.

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3. PRELIMINARY OBJECTION

3.1 NON-EXHAUSTION OF ALL AVAILABLE DOMESTIC REMEDIES:

ONGOING CRIMINAL PROCEEDINGS

49. As a preliminary motion to dismiss this case, Brazil can object to the aforementioned

communication being considered by the Committee, once the requisite stipulated by Article 2 of the

Optional Protocol has not been met. The mentioned Article reads as follows: "individuals who claim

that any of their rights enumerated in the Covenant have been violated and who have exhausted all

available domestic remedies may submit a written communication to the Committee for

considerat .

50.

51.

52.

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53. -

54.

n, involves

a more incisive remedial role of the Court, and is intended to provide direct relief to the applicant. Like the issuance of declaratory judgments, however, the power to order damages also is constrained by the principle of subsidiarity and can be exercised only when the Court

6

55. As demonstrated in the section above, and as shall also be demonstrated, most of the

available domestic remedies are yet to be used as regards this case. It stems from this that the Article

5(2)(b) of the Optional Protocol must prevail; i.e., the Committee shall not consider any

communications from any individuals who have not yet exhausted all available domestic remedies.

56. Indeed Mr. Lula has not yet exhausted all the available procedures in Brazil which may

remedy the alleged violations to his rights. Such procedures are available to any citizen subjected to

the Brazilian jurisdiction and their duration and processing are not unduly lengthy. On the contrary,

motions and other remedies, such as writs of habeas corpus, tend to be quickly appreciated and ruled

over, whether as a preliminary matter or as a definitive ruling.

57. Mr. Lula is a defendant in two inquiries filed before the Supreme Court and in five

criminal lawsuits filed before different courts in two Brazilian cities. However, the former President

claims that the violation of his rights regards two ongoing criminal proceedings in Curitiba, which

originated from investigations carried out by the Federal Prosecutor's Office (MPF), the Federal

Police (PF) and the Brazilian Internal Revenue Agency (RFB) in connection with the Car Wash

Case. These two criminal lawsuits are under the advisement of Judge Sergio Moro, who does not

integrate the Car Wash Task Force of the Federal Prosecution Service, which was created by the

Prosecutor-General of the Republic, nor does he take part in any investigations carried out by the

6NIFOSI-SUTTON, Ingrid. The Power of the European court of human rights to order specific non-monetary relief: a

critical appraisal from a right to health perspective. Harvard Human Rights Journal, 2010, Vol. 23, p. 54

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Federal Prosecutor's Office.

FIRST DEGREE OF JURISDICTION

SUPREME COURT

58. The criminal proceedings in question have been carried out as duly and uneventfully as is

expected. They were filed in 2016 and are currently being tried in the first degree of jurisdiction,

which means that the evidence brought forward by the parties (Federal Prosecutor's Office and Mr.

Lula's defence) is being presented in court before the federal judge who will try the case. One must

highlight that Mr. Lula has been duly granted his right to defence freely in every one of these

criminal lawsuits. He has been assisted by several defence attorneys; among them, the renowned

defence attorney Juarez Cirino dos Santos.

59. Mr. Luiz Incio Lula da Silva responds to the aforementioned criminal proceedings in

freedom, has had his right to technical defence preserved (as he's being assisted by defence attorneys

chosen by himself), has had the right to bring forward any evidence in the best interest of his

defence, not to mention that his right to defend himself against any evidence presented by the

Criminal Lawsuit Federal Court Judge Case 5046512-94.2016.4.04.7000

13th Federal Court of Curitiba

Sergio Fernando Moro

Car Wash

5063130-17.2016.404.7000


Sergio Fernando Moro

Car Wash

0016093-96.2016.4.01.3400


Vallisney de Souza Oliveira

Janus

0042543-76.2016.4.01.3400


Ricardo Augusto Soares Leite

Car Wash

0076573-40.2016.4.01.3400


Vallisney de Souza Oliveira

Zealots

Inquiry Court Assigned Justice Case

4243 STF (Feeral Supreme Court)


4325 STF (Federal Supreme Court)


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Federal Prosecutor's Office has also been duly preserved. Moreover, the Federal Prosecutor's Office

is the competent, independent agency with power to prosecute within the Brazilian legal framework.

The procedures in which Mr. Lula is a defendant are carried out in accordance with the principle of

publicity, and shall be tried by a competent and independent federal judge. In the Brazilian legal

jargon, an "independent" judge means that s/he is not bound by any governmental bodies, and is not

biased by any of the parties, being expected to provide an impartial ruling consistent with the rule of

law. If a bias is detected, the judge can be refused by the parties, through means of a specific motion

to be decided by a higher court ("exceo de suspeio", in Portuguese).

60. Should a conviction be reached in the first degree of jurisdiction, Mr. Lula may appeal to

the Federal Circuit Court of the 4th Region in the state of Rio Grande do Sul. When he does, his

appeal will produce two effects: a) his appeal shall be fully considered by the Federal Circuit Court

of the 4th Region, and not once again by the first degree of jurisdiction. At this stage, he may appeal

on the grounds of violation of legal provisions, treaties or the Constitution, or he may appeal to

question the evidence which led to his conviction; b) while his appeal is under the advisement of the

Federal Circuit Court, his conviction sentence is stayed; i.e., he will not undergo imprisonment until

(and only if) his conviction is reaffirmed by the Federal Circuit Court. That is a hypothesis, because

he may be found not guilty by the court in Curitiba. This is provided for in Article 593, I of the

Criminal Procedures Code:

Article 593. An appeal shall be filed within five (5) days in order to attempt to reverse: I - the final conviction or acquittal sentences as ruled by a judge in the first degree of jurisdiction;

61. It is worth clarifying that any citizen accused of a crime may file an appeal before the

competent Court of Appeal, which is entitled "motion for amendment of judgement" (in Portuguese,

"embargos de declarao"), as laid down by Article 619 of the Criminal Procedures Code:

Article 619. Motions for amendment of judgement may be filed against judgements rendered by Courts of Appeal, chambers or panels in two days' time, which shall be counted as of the judgement's publication date, whenever said judgement is ambiguous, obscure, inconsistent or incomplete.

62. Exceptionally, a defendant whose appeal before the second degree of jurisdiction has

been rejected and/or after his/her conviction has been reaffirmed may appeal before the Superior

Court of Justice (STJ), or also before the Federal Supreme Court, being both Courts located in

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Brasilia. (N.B.: an appeal before the STJ is called "recurso especial" in Portuguese, while one filed

before the Federal Supreme Court is named "recurso extraordinrio"). Both appeals are set forth by

Articles 102 and 105 of the 1988 Federal Constitution and by Article 1029 of Law 13,105/2015

(Civil Procedures Code). An appellant may argue the interpretation of federal law or even of treaties

on his appeal before the Superior Court of Justice, whereas he may argue constitutional matters on

his extraordinary appeal before the Federal Supreme Court.

63. Decisions rendered by both Courts may be reversed through a motion for amendment of

judgement.

64. Moreover, decisions handed down by a single Justice from any of these Courts may be

reversed through a court's internal appeal, called "agravo" in Portuguese.

65. Furthermore, one may file a complaint against decisions rendered by lower courts which

do not follow precedents set by either the Superior Court of Justice or the Federal Supreme Court.

This kind of remedy is called complaint or "reclamao".

66. In addition to all the arguments above, the applicant must firstly exhaust all the available

internal appeals before s/he may file a request for damages internationally. As we shall demonstrate

further, the applicant has indeed filed a few lawsuits for damages in Brazil. Nevertheless, he failed to

wait even for the first degree of jurisdiction to consider the matter, therefore directly violating the

principle of subsidiarity, which determines that all internal appeals must be exhausted firstly.

Therefore, the Committee should decide in favour of the preliminary objection presented.

3.1.1. WHICH COURTS ARE TRYING MR. LULA?

67. Mr. Lula is being tried by the 13th Federal Court of Curitiba, whose competence is related

to federal matters taking place in southern Brazil. As such, he may file criminal appeals, other

appeals and motions (including motions for bias) to the Federal Circuit Court of the 4th Region in

Porto Alegre (which is the competent Court of Appeals for southern Brazil). After that, he may also

file appeals and motions before that same court, and also other app

Defesa de Lula volta a pedir suspeição de Sergio Moro

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