Today (June 5, 2018) former President Luiz Inácio Lula da Silva’s defense attorneys filed requests for provisional remedies with the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) with the purpose of suspending the appellate decisions rendered by the Regional Federal Court of the 4th Region (TRF4) regarding the Appeal and Motion for Clarification in Criminal Proceeding No. 5046512-94.2016.4.04.7000/PR – consequently freeing Lula.
The requests show how plausible the special and extraordinary appeals filed with the 4th Region Appellate Court on April 23 are. The said appeals await the Prosecution’s response yet to be presented (the term for presenting their response starts today, 42 days after the filing). It is also proven that in view of the possibility of reversing the conviction or, yet, declaring the whole procedure null and void, former President Lula cannot remain in prison – due to an early execution of sentence – before the decisions on such appeals with the STJ and STF become final.
In the request addressed to the Federal Supreme Court, the defense shows that Lula’s conviction goes against Articles 5, XXXVII and LIII, 37, 93, IX, 109, 127, and 129, all in the Federal Constitution, since they concern an exceptional court, as opposed to the natural judge guarantee. The Federal Court of Curitiba was chosen by the Car Wash prosecutors to decide on the criminal proceeding against Lula by convenience, which was done solely because of an allegation – lacking any proof whatsoever – that the funds stemming from Petrobras were directed to the former President. In his decision regarding the Motion for Clarification filed by Lula’s defense, Judge Moro himself admitted: “This judge has never stated, in the judgment or anywhere else, that the amounts stemming from Petrobras contracts were used to provide the former President with any undue advantage.” The constitutional guarantees to an adversary procedure and a fair hearing were also violated by the consecutive times Lula’s defense was denied the right to produce and use evidence of his innocence, like the affidavit handwritten by João Vaccari Neto challenging Leo Pinheiro’s statements that served as grounds to convict the former President. In the affidavit the Appellate Court refused to analyze, Vaccari states: “I have never negotiated or talked to Leo Pinheiro about any illegal matters involving bribery. It is also not true what is said by Léo Pinheiro, who claims to have mediated on behalf of former president Lula the receipt of the triplex in Guarujá as payment of undue advantages.”
In its turn, in the action for provisional remedy filed before the STJ, Lula’s defense demonstrates that the TRF4 decisions violated the following articles, among others: (i) articles 69, 70, 76, 77, and 78 of the CPP (Code of Criminal Procedure), since the case was trialed by a judge with no jurisdiction over it according to the legal criteria adopted to assign cases; (ii) articles 257 and 258 of the CPP, since the prosecutors did not act with the required impartiality, but as enemies of the defendant and of his defense; (iii) articles 383 and 384 of the CPP, since the complaint stated that sums from 3 specific contracts signed by Petrobras allegedly generated undue advantages to the benefit of the former President, whereas his conviction was based on a narrative that has no connection with the prosecutorial thesis and makes reference to “undetermined acts” and to the “attribution” of a piece of real estate and renovations in favor of Lula; (iv) articles 158, 231, 234, 400, paragraph 1, 402, and 619 of the CPP and art. 7, X, of Law 8,906/94, since they did not allow the production of evidence, including those that are mandatory by law, such as the production of expert evidence regarding alleged violations that leave traces, in addition to disregarding the statement made by Mr. João Vaccari Neto who fully refuted the incriminating statements made by co-defendant Leo Pinheiro; (v) article 616 of the CPP and article 4, paragraph 16, of Law 12,850/13, since the conviction imposed to Lula was based on the testimonies of co-defendants Léo Pinheiro and Agenor Magalhães that could never be given such evidentiary value; (vi) articles 1, 13, 29, and 317 of the Criminal Code, since Lula was convicted for the crime of corruption despite the fact that there are no elements proving the existence of said crime, namely the performance of an official act by a public servant; article 1 of Law n. 9,613/98 since Lula was convicted for the crime of money laundering without having performed any conduct that could indicate an attempt to make unlawful assets or sums seem legal; (vii) articles 107, IV, 110, and 115 of the Criminal Code, since they did not declare the punitive claim.
The requests for provisional remedies were filed before the Chief Justices of the STF and the STJ and shall be assigned to the reporting Justices of the Curitiba Car Wash cases.
CRISTIANO ZANIN MARTINS AND VALESKA TEIXEIRA ZANIN MARTINS
Click below to read the full documents (in Portuguese only)