1 – The defense of former President Luiz Inácio Lula da Silva will appeal the decision rendered today (07/18) by the 13th Federal Court of Curitiba on the judgment of the Motion for Clarification filed on 07/14 in the record of the Criminal Action no. 504651294.2016.4.04.7000/PR, of which it is still awaiting notice.
2 – In that regard, based on the information already made available, the defense clarifies that:
2.1 – It is evident that the Court of Curitiba imposed its jurisdiction over the case, as it has always been stated by the defense, since the proceeding, besides bearing an absurd accusation, has never had any effective connection with Petrobras. The following excerpt of the decision leaves no doubt about that: “This court has never affirmed, in the judgment or anywhere else, that the amounts obtained by Construtora OAS through contracts signed with Petrobras were used for the provision of undue advantages to the former President”. The decision rendered today, therefore, confirms that the proceeding should have never been processed before the 13th Federal Court of Curitiba, which has no relation to the narrative presented by the prosecution.
2.2. The Judge makes it clear that he has put forward his own accusation, different from the one brought up by the Federal Attorney’s Office. According to the latter, Lula allegedly “effectively received” the triplex apartment, purchased with funds derived from three contracts signed with Construtora OAS and Petrobras. The decision rendered today, however, has no relation to funds derived from Petrobras and it affirms that “corruption was perfected with the deduction of the apartment’s price and the refurbishment costs from the general bribery account, thus, the formal transfer of the property’s ownership was not necessary”. The lack of correlation between the judgment and the accusation reveals the nullity of the decision, as the Judge decided on something different from the version provided by the prosecution, regarding which the accused presented a defense throughout the proceeding.
2.3. – In view of the defense’s objection, the Judge now affirms that the supposed corruption act that resulted in Lula’s conviction allegedly occurred through “the deduction of the apartment’s price and the refurbishment costs from the general bribery cash”. It is not present in the judgment delivered on 07/12 or in the decision rendered on this date any proof of this deduction, simply because it didn’t take place, at least not to benefit former President Lula. The clarification given by the Judge today makes it even more evident the illegality of Lula’s conviction, which is 100% based on the testimony of the co-defendant Leo Pinheiro, who was not under oath when he testified and, additionally, was being pressured by the negotiations with the Federal Attorney’s Office aiming at disentangling a plea bargain agreement aimed at releasing him from prison. Besides being a defendant and potential informant, Pinheiro was sentenced to 23 years in prison in a single criminal proceeding, and his word deserves no credibility, especially in such circumstances.
2.4. One can read the record once and twice and will not find a single document or testimony besides Leo Pinheiro’s that makes reference to said “deduction of the apartment’s price and refurbishment costs from the general bribery account”. If the informant’s word is not reliable enough to motivate a conviction, as it is provided by law and was recently reaffirmed by the Federal Regional Court of the 4th Region, what can we say about the word of a co-defendant who was not under oath when he gave his testimony and at the same time was negotiating his plea agreement with the prosecution?
2.5. Even if it were possible to disregard all the elements that compromise the neutrality of Leo Pinheiro’s testimony and the illegality of its use to ground a guilty verdict; the version he provided is incompatible with other testimonies heard in the course of the proceeding. For instance, Leo Pinheiro affirms that he talked about the alleged deduction of amounts with Mr. João Vaccari Neto and Mr. Paulo Okamotto in 2009. The Federal Attorney’s Office did not want to hear Vaccari’s version, as it hasn’t called him to testify nor even during the supplementary procedural measures (Code of Criminal Procedure, Article. 402). Okamotto, in turn, denied he had such conversation in 2009, as well as other supposed conversations narrated by Pinheiro, acknowledging he only talked to him in 2014. About the use of undue funds in project Solaris or, yet, in the refurbishment of unit 164-A, the testimony given by Pinheiro is also incompatible with several other ones in the record, including the testimony given by the equal co-defendant Fabio Yonamine, former CEO of OAS Empreendimentos, the property’s owner.
2.6. – The ludicrous comparison presented in the decision rendered today, between former President Lula and former Petrobras Officers who confessed having committed illicit acts: (i) emphasizes the permanent intention of Judge Moro to offend Lula’s honor and image and his consequent – undeniable – partiality; (ii) demonstrates that Judge Moro is not able to distinguish situations that are differed by facts: after an extensive probe, no investigation has identified any account owned by Lula bearing illicit amounts, either in Brazil or overseas. In view of the judgment’s content and the rendered verdict, the only reference to Petrobras in the proceeding, which seems to have pleased the judge, regards the interference of one of the oil company’s lawyer in our professional performance as Lula’s lawyers, something that was a target of disavowal by several jurists and defenders of an independent practice of law that does not give in to arbitrariness.
2.7. The reference to former Representative Eduardo Cunha in the decision rendered today is also misplaced and revealing with respect to its lack of objective criteria. There isn’t any discussion about the ownership of accounts overseas related to Lula, proving the impossibility of establishing any parallel between the cases.
2.8 – The acknowledgement by the Judge that he has “never” affirmed that “amounts obtained by Construtora OAS through contracts with Petrobras were used for the provision of undue advantage to the former President”, points to his wrongful decision of accepting the oil company as assistant to the prosecution in the proceeding, inflicting direct costs to shareholders and indirect ones to Brazilians, as Petrobras is a private company controlled by the government. He also made an express mistake when he sentenced Lula to compensate for “minimal losses” when acknowledged that the former President was not benefitted from the amounts derived from the three contracts related to the oil company, which are pointed out in the complaint.
2.9 – Moro’s hostility towards Lula is reinforced – which is not compatible with impartiality and the equally necessary appearance of impartiality – when he revealed through excerpts of the judgment (104 paragraphs) that he was deeply affected by the fact that Lula made use of legal means to question illegal acts committed by the Judge and other members of the Car Wash in the course of the proceeding, one of them acknowledged by the Federal Supreme Court in the decision of Complaint 23.457. He acts as he was above law in relation to the party and his lawyers, who the judge did not treat with the due courtesy in several opportunities, as it can be verified in official audio records, in audios legally and purposefully recorded by the defense and also by the press.
Cristiano Zanin Martins