As former President Luiz Inácio Lula da Silva’s attorneys, we filed today (11/09) the grounds for the appeal (appellant’s brief) that was filed on July 31, in Criminal Proceeding No. 5046512-94.2016.4.04.7000/PR. The document – with 490 pages – is intended to the Regional Federal Appellate Court of the 4th Region (TRF4), which will be responsible to decide the appeal against the judgment rendered on July 12 – and addition made to it on July 18 – by the judge of the 13th Federal Criminal Court of Curitiba, who, in disregard for the proof of innocence included in the case’s record, imposed on Lula an unfair and unlawful conviction. With the appeal, the defense seeks the proceeding to be declared null or, yet, the judgment – so that a new one may be delivered – or, still, the trial-court decision to be annulled, acquitting Lula.
The grounds for appeal presented today show, among other things, that:
1- In the decision rendered on July 18, in response to the motion for clarification filed by Lula’s Defense, judge Sérgio Moro acknowledged that no amounts from contracts signed by Petrobras have been used to make any payment to Lula (“This Court has never stated, neither in the judgment nor anywhere else, that the amounts obtained by building company Construtora OAS in contracts with Petrobras were ever used to make any undue payment to the former President”). As a consequence of this situation, it must be acknowledged that the criminal proceeding could never have been presided by the Federal Courts of Curitiba, as well as the whole proceeding must be declared null;
2- Judge Sérgio Moro denied the production of evidence requested by the Defense to prove Lula has not received, either directly or indirectly, any illegal amount. He also denied evidence intended to follow the money, which is essential to cases of corruption and money laundering crimes, according to another recent decision rendered by the same judge (Criminal Proceeding No. 5027685-35.2016.4.04.7000/PR), and also according to precedents of this Court on the subject. As a consequence of this situation, the whole proceeding must be declared null;
3- The charges tried in the judgment are not the same brought by the Car Wash Task Force on September 17, 2016 – against which Lula defended himself throughout the proceeding. According to the prosecutors’ complaint, three contracts signed between Construtora OAS and Petrobras generated undue amounts which were allegedly used to buy and renovate a triplex apartment, in Guarujá, which was supposedly given to Lula. Judge Sérgio Moro formulated and decided completely different charges, something which must result in the acknowledgment of the nullity of said judgment due to the “principle of congruence”.
4- According to the Brazilian courts’ unanimous understanding, it is not possible to consider the crime of bribe solicitation (Criminal Code, Article 317) without evidence that the civil servant performed or failed to perform an act (official act) related to alleged advantage. However, the judgment rendered by the Judge of the 13th Federal Criminal Court of Curitiba does not point out any official act Lula might have performed or might have failed to perform, let alone that the former President received any undue advantage – since he acknowledges that Lula does not own the triplex apartment. Neither is it possible to point out that Lula concealed any undue amounts thus removing the necessary elements which configure the crime of money laundering. This is why this judgment must be overruled and Lula acquitted;
5- Lula’s conviction was fundamentally based on the testimonies of Leo Pinheiro and Agenor Magalhães Medeiros, which dissociate from the testimonies given by 73 witnesses and, also, from the testimonies of other co-defendants. Pinheiro and Medeiros were not heard under oath and clearly had the sole purpose of giving an untrue version of the events incriminating Lula in exchange for various benefits, including a substantial reduction of their sentences.
We also requested the Regional Federal Appellate Court of the 4th Region, with grounds on Article 616 of the Code of Criminal Procedure, that former President Lula have a chance to testify again directly to the Court. The request was based on the fact that the trial-court judge’s interest was never to investigate the true facts, as he acted like an accuser: while the Prosecution asked Lula 138 questions during his interrogation, the judge asked the former President 347, most of which were unrelated to the case.
Click HERE for a detailed explanation about the main mistakes in the triplex case, which must lead up to the conviction to be annulled or reversed. [Available in Portuguese only]
See the full appellant’s brief HERE. [Available in Portuguese only]