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AFP / Getty [1965] The Region (TRF-4) of Porto Alegre and the Superior Court of Justice (STJ) of Brasilia.
Ministers of the 2nd panel of the Federal Supreme Court (STF) are expected to judge Tuesday (04) an application for habeas corpus formulated by the defense of former President Lula (PT). Lula is imprisoned at the Superintendency of the Federal Police in Curitiba (PR) since April 7, 2018.
In the new habeas corpus (HC) petition, Lula's defense states that Judge Sérgio Moro was biased. (against Petista) by accepting the invitation to become Minister of Justice of the future government of Jair Bolsonaro (PSL). The Petista defense asks Moro to be considered suspicious. that the whole process of the "triplet of Guaruja" be canceled and that Lula be released.
MPF Attorney General, Attorney General Raquel Dodge, ruled against the applicant's application. She remembers that Lula had been arrested and had become inadmissible because of the decisions of several other courts, not only. I live In addition, the decision to become a minister is strictly personal and "the motivation of the ex-magistrate to accept such an invitation does not matter to the court", has he declared.
The 2nd clbad of the STF is responsible for judging cases related to Lava Jato. It is made up of ministers Luiz Edson Fachin (Lula rapporteur), Ricardo Lewandowski (group president), Celso de Mello, Carmen Lúcia and Gilmar Mendes. Wednesday's session is scheduled for 14:00 – but it is not possible to know in advance if another case will be tried by Lula HC.
The habeas corpus that is to be tried today arises after similar appeals from Lula's defense were dismissed by both the 4th Federal Regional Court (TRF-4), Porto Alegre and the Superior Court of Justice. in Brasilia. In both cases, the defense alleged that Sérgio Moro was an enemy of Lula and could not judge him.
In order to file a new HC application to the Supreme Court in early November, Lula's defense alleged that Moro had created a "new fact" by accepting the invitation to become Minister of Justice of Bolsonaro early November.
1. What are the arguments of Lula's defense?
Cristiano Zanin, Lula's defense lawyer, maintains in his habeas corpus the thesis that Judge Moro was biased in the conduct of investigations that ultimately sentenced the leader of the PT . "During the Lava Jato operation, Judge Sérgio Fernando Moro clearly revealed bias and political motivation in the acts of persecution involving former President Lula," he wrote.
Zanin mentions several episodes involving the former federal judge and his client to support the view that Moro "acted for personal interests outside [juge] revealing personal hostility" to the 'former president. Zanin mentions inter alia:
The fact that Moro determined the violation of Lula's phonetic secret, including during interviews with his lawyers in 2016 – some of which were revealed during the proceedings;
The episode in which Moro made public, also in March 2016, audio recording of a conversation between Lula and Dilma Rousseff, President of the Republic at the time;
Rafael Carvalho's Law of the Image
/ Transitional Government
] For the lawyer Cristiano Zanin Martins, who defends Lula in this case , Sergio Moro has presented evidence that does not have the conditions to judge the PT.
The intervention of Moro, who was on vacation, against the liberation of Lula during the "war of injunctions" opened by Judge Rogério Favreto in July 2018;
The fact that Moro congratulated Bolsonaro for his election in October and accepted the invitation to become minister in early November;
The postponement of Lula's public testimony in the "Atibaia" case, scheduled for September 2018, to "avoid electoral exploitation";
The removal of the secret of part of the denunciation of the former minister and informer of Lava Jato Antonio Palocci, made by determination of Moro, on October 1 of this year.
2. What does the federal public prosecutor say?
Raquel Dodge, Attorney General of the Republic, "the story presented by the applicants is based on fragile sentences that are not summarized in the evidence".
For the MPF leader, Lula had guaranteed his right to full defense and adversarial proceedings throughout the triplet – and even so, his conviction was upheld by another court (TRF-4).
Dodge also recalls that the STF itself has already twice ruled appeals against him: in April 2018, a few days before his arrest, the former president had seen another petition. habeas corpus rejected by the plenary of the STF; and in May, the same 2nd clbad unanimously denied an injury to the PT. "Because of the judicial order (…), confirmed twice by the STF, Lula began serving the prison sentence imposed on her," wrote Dodge.
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José Cruz / Agência Brasil [19659004] Image caption
Throughout the triplet's trial, Lula's right to defense and adversarial character was guaranteed to Lula. Even his conviction was confirmed by another case of justice.
"If there was persecution and injustice, they would not result from the isolated action of the federal judge designated as suspect (Moro), but rather from a large concerted agreement among all the judges the eighth panel of the TRF4, the 5th Panel of the STJ and the 2nd Panel of the STF, which is not credible, "writes Dodge.
The PGR then responds, one by one, to the points raised by Zanin.
Regarding the fact that Moro accepted the invitation to become a minister, Dodge recalls that the conviction – and the ineligibility of Lula in 2018 – were "successively confirmed by various judicial authorities". In addition, Moro's sentence against Lula dates from July 2017. Moro "could not imagine that he would be called more than a year later as Minister of Justice ".
"Finally, it is recalled that the decision to accept the invitation to be Minister of Justice of the President-elect belongs to the sphere strictly personal Sérgio Moro.The motivation of the former magistrate to accept such an invitation does not matter, "wrote the PGR. "The acceptance of such an invitation, legitimate option of the life of a free citizen, does not have the power to go beyond the strict personal sphere of the magistrate and, in itself, questions its fairness and impartiality, "says Dodge's demonstration.
3. During this process, the Federal Prosecutor's Office (MPF) claimed that the OAS, an entrepreneur established in Bahia, had proceeded to the reform of an apartment free of charge. three floors in the spa of Guarujá (SP), which would be reserved for the family of PT – although the sale did not materialize. Lula even visited the apartment in 2014, accompanied by the former OAS President, Leo Pinheiro. When the case was made public, late 2014, Lula and the former first lady, Marisa Letícia, gave up the purchase.
Still for the MPF, the reform of the triplex apartment would have been a way for the OAS to "pay off" Lula's performance in favor of the contractor in the dispute over three contracts with Petrobras.
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The number of habeas corpus that Lula can present to the Supreme Court or other courts of the land is unlimited. However, each of the motions must have different motives, says Criminal Lawyer Fernando Castelo Branco.
Since the beginning of the trial, Lula and her defense deny having committed crimes and claim that there is no evidence of the alleged linkage between the apartment reform and the contracts of the state oil companies.
In January of this year, Lula was sentenced. (in this case, the Regional Regional Court of the 4th region, TRF-4) a 12-year sentence of imprisonment and one month's imprisonment for crimes of pbadive bribery (to have received from him). money from his duties) and money laundering
Before, in July 2017, Lula was sentenced in the same case by former Judge Sergio Moro to a nine-year, six-month sentence. 39; imprisonment.
4. Is there a limit to the number of habeas corpus applications from Lula?
There is no limit to the number of habeas corpus that Lula can present to the Supreme Court or other courts in the country. However, each of the motions must have different motives, says Criminal Lawyer Fernando Castelo Branco.
"It is obvious that the arguments and requests for each case (HC) can not be repeated.This would be considered duplicity," he says, who is also a professor of criminal procedure at the University Pontifical Catholic Church (PUC) of São Paulo.
"In some cases, there may be two HCs at the same time, dealing with different things." It is possible that there is a habeas corpus requesting a house arrest and another plea in nullity because it is a partial judge. because these are different demands, "he says.
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