Lula vehemently denies the claims against him but is not opposed to be investigated in a fair and open manner.
The UN Human Rights Committee has been asked to rule that Judge Moro and the “Car Wash” Federal Prosecutors have violated Lula’s rights to privacy, freedom from arbitrary arrest and right to be presumed innocent until found guilty. The evidence focuses on the leaking of confidential material to the media, the unlawful issue of a bench warrant, illegal disclosure of telephone intercepts, use of indeterminate pre-trial detention against “Car Wash” suspects, obtaining plea bargains and numerous examples of the prosecutors and Moro’s pronounced bias against Lula.
Citing precedents from previous decisions of the HRC and from other international courts, the petition maintains that under international law, Moro, by virtue of his pronounced lack of impartiality and by the fact that he has already been found to have committed a number of unlawful acts against Lula, is irredeemably biased and therefore cannot be permitted to order his arrest or to put him on trial. If such steps are to be taken, they must be decided by an impartial judge.
The petition to the HRC, which sits at the UN in Geneva, is believed to be the first ever taken against Brazil, which ratified the Committee’s protocol in 2009. It has been prepared by Lula’s long-term legal advisers, Teixeira, Martins, with the assistance of a former UN appeal judge, Human Rights barrister Geoffrey Robertson QC. The Committee is comprised of 18 distinguished jurists drawn from a cross-section of countries (including Italy, France, United States of America, Germany, Argentina and United Kingdom.)
Moro has painted himself as an ‘attack judge’ willing to court publicity – particularly in the United States – for himself and to use techniques such as public disclosure of telephone taps and indefinite detention to pressuring suspects into “plea bargains.” The petition sets out reasons why such strategies violate the International Covenant. The Brazilian government will be given six months either to contest these allegations or to admit them and reform the law. It may be required to remove Judge Moro from Lula’s case. One central argument in the petition is that he has shown himself to be irretrievably biased.
Cristiano Zanin Martins, Lula’s lawyer said: “Action against corruption, especially political and institutional corruption, is of vital importance to democracy. But it must be effective action, of which a nation can be proud, and not arbitrary and unlawful action of which a nation will subsequently be ashamed.”
“The danger of Judge Moro is that his unlawfulness and unfairness will be counter-productive, and will serve to damage political corruption allegations in the long term. I have sought a ruling from the HRC so it will serve as a guide to the fundamental rights that our constitution requires our judges and prosecutors to uphold.”
Geoffrey Robertson QC of Doughty Street Chambers said: “Lula is his bringing his case at the UN because he cannot get justice in Brazil under its inquisitorial system. Phones are being tapped, as are those of his family and lawyers, and the intercept transcripts – even the audio recordings – are being released for the delectation of a political hostile media. The same judge who is invading his privacy in this case can have him arrested at any moment and will then automatically become his trial judge, deciding on his guilt or innocence without a jury. No judge in England or Europe could act in this way, in effect both as his prosecutor and as his trial judge. This is a serious fault in the inquisitorial system as it operates in Brazil.”
Mr Robertson also points out that the petition raises an issue which has been subject to much criticism from human rights groups and from UN bodies, namely the lack of provision for bail in Brazil and in Latin American countries; “this is a problem of pre-trial detention – the judge has power to detain suspects indefinitely in prison until they confess and plea-bargain. Obviously it leads to wrongful convictions based on confessions that are forced out of suspects because they want to get out of prison. Lula’s petition highlights this problem in a country where over two thousand un-convicted people are kept in pre-trial detention.”
The petition is also a response to the attempts by Judge Moro and Car Wash Prosecutors to “sensationalise” and “internationalise” the issue rather than focus on the rule of law and Brazil’s international legal commitments.
The petition has been prepared by Lula’s long-term legal advisers, Teixeira, Martins, with the assistance of a former UN appeal judge, Human Rights barrister Geoffrey Robertson (Queen’s Counsel).