Last week, GAB published two letters presenting alternative perspectives on the so-called “Car Wash” (Lava Jato) anticorruption operation in Brazil, in particular the prosecution and conviction of former president Luiz Inácio Lula da Silva (Lula). The first letter was a re-publication of an open letter sent by a group of international jurists and scholars, who asserted that Lula did not receive a fair trial and that the prosecutors were politically biased. The second letter was a reply from the prosecutors, who defended their conduct, argued that the conviction of Lula was legitimate and not politically motivated, and contended that a number of factual and legal assertions in the international jurists’ letter were incorrect.
After publication of that post, I received a message from Lula’s lawyers (the law firm of Teixeira, Martins & Advogados), who asked me to publish their letter in response to the prosecutors. In the interest of furthering this important substantive debate, I am presenting their letter below:
São Paulo, September 19th, 2019
To: GAB – The Global Anticorruption Blog
Attn: Matthew Stephenson
Ref.: Response to the Brazilian Federal Prosecutors regarding former President Lula’s Case posted on September 12, 2019
Dear Mr. Stephenson,
- As attorneys for former Brazil President Luiz Inácio Lula da Silva, on September 12th 2019, it came to our attention the fact that the “Car Wash Prosecutors” (hereinafter referred to as Prosecutors) had sent an outraging letter to renowned international jurists which was then made public by GAB – The Global Anticorruption Blog, based in The United States of America.
- Firstly, President Lula always made it clear to his defense legal team that he does not consider himself to be above the law, but neither should he be treated beneath the Law. He wants Justice. Yes, he wants justice for himself and all individuals caught up in the same web of untruthfulness and gross violations of individual and fundamental human rights. Therefore, the citizen Lula, as any other in the world, deserves a fair, unbiased and independent trial whereby all suspicions raised against him should be clarified for history sake. The truth shall be unveiled if impartiality and independency in a trial prevails.
- In that regard, the letter written by the Prosecutors, in addition to viciously misrepresenting the facts regarding Lula and the frivolous charges brought against him by these and other prosecutors also makes slanderous statements about us, the former President’s attorneys, distorting and bluntly lying about our professional integrity in an attempt to damaging our reputation. It is the same manner they have been acting since the beginning of the procedures, simply by treating us as enemies for acting ethically and strictly within the boundaries of the legal profession in the defense of a client. Below we shall confront all misrepresentations of the letter.
First Group of Misrepresentations.
- One of the founding partners of the firm, Mr. Roberto Teixeira was believed to be the lead counsel on the case with an upper hand on strategic information from the defense legal team. On February 26, 2016, Moro justified the authorization for the real time surveillance on Mr. Teixeira because he was notoriously an old friend of Lula´s. Six days later, the Prosecutors agreed with the justification and added the fact that said attorney also acted judicially in several procedures for Lula and his family. As per their logic, it is an offense for lawyers to befriend clients. Mr. Teixeira was forced to retire from actively working in the firm because his health rapidly deteriorated with the premature development of Parkinson´s disease, which is intrinsically connected to all the stress from the unjustified attacks made against him by the Car Wash Operation.
- The former presiding Judge of the Car Wash Operation, Mr. Sergio Moro (hereinafter referred to as Moro), upon request of the Prosecutors, authorized the wiretap of our firm’s main telephone extension for 23 (twenty three days), through which about twenty five (25) lawyers had privileged conversations with the hundreds of the firm’s clients, including former President Lula.
- Our telephone calls as Lula’s attorneys and regarding defense strategies on the former President’s case were recorded and monitored in real time by federal policemen. Such actions were authorized by Moro and the Prosecutors. They had full knowledge that the tapped landline belonged to our law firm, precisely because they were following up closely on the conversations — just as in any other firm in the world, each one of the monitored calls starts with the name of the law firm due to a pattern established for the employees. Moro and the prosecutors were also duly warned by two (2) official letters sent by the telephone company specifying that they were surveilling a law firm, and still decided to maintain the “illegal” wiretap. The Federal Council of the Brazilian Bar Association – main national entity of representation of the legal professionals – filed a motion before the Brazilian Supreme Court repudiating the recording of such client attorney privileged conversation, and expressly shaming the attempt by the Car Wash to criminalize proper ordinary acts inherent to the legal profession. All of which was disregarded by Moro and the Prosecutors, solely to disguise and defend their illegal practices.
- The improperly exchanged messages between Moro and the Car Wash Prosecutors via telegram, made public by The Intercept portal and other media outlets in the “Vaza Jato” scandal as of June 9th, 2019, overwhelmingly confirm, beyond any doubt, that Moro and the Brazilian prosecutors monitored conversations illegally intercepted from the main landline owned for decades by our law firm. Furthermore, in parallel to the tapping of the landline, they listened and took notes on all client attorney privileged conversations arising from Lula´s intercepted mobile lines. For over a month (from February 19th until March 16th, 2016), they were strategizing their combined actions on the proceedings against Lula based on the surveillance of the legal defense´s team.
- We have officially received from the Car Wash´s clerkship, files containing such surveillance of our defensive strategies on Lula´s case (surveillance on attorney´s landline, attorney´s mobile phones and Lula´s mobile phone). In possession of such files, and if needed, these indisputable surveillance audios shall be used to ultimately prove the Prosecutors misrepresented the facts which took place in and surrounding the procedures.
Second Group of Misrepresentations: Historic and Unprecedented Gross Violations of the Right of Presumption of Innocence
- Before the trial had begun, or even prior the confirmation of the Car Wash´s jurisdiction to investigate Lula, Moro and the Prosecutors had already submitted Lula to an arbitrary imprisonment through the execution of a bench warrant unconstitutional decision dated as of March 4th, 2016 (violation of art. 9 of the International Covenant on Civil and Political Rights of the United Nations). They illegally withheld Lula for almost 6 hours in an unsafe airport room which led to favorable and violently unfavorable protests which threatened the security of Lula, his attorneys as well as the Prosecutors in charge of the interrogation. While Lula was being deposed, the Prosecutors called a press conference whereby they exposed all suspicions brought against President Lula. The majority of the mainstream media reports were highly negative by repeating unconfirmed accusatory hypothesis. This led to an undeniable presumption of guilt against President Lula which had been Moro´s and the Prosecutor´s intention.
- Thereafter, on March 16th of the same year, they manipulated surveillance records to withhold exculpatory evidence in a clear example of Brady rules violations (please see item Third Group of Misrepresentations).
- On September 14th, 2016, the world watched with astonishment an international press conference, held in a hotel conference room in which the Prosecutors accused President Lula of being the Commander of a Kleptocracy scheme without a shred of credible evidence.
- Instead, they presented the powerpoint below as evidence:
- In addition, as regards the money laundering charges, they announced that they had no evidence but strong belief that the lack of evidence was the evidence of guilt.
- On June 9th, 2019, the “Vaza Jato” first tranche of leaked messages show that 4 (four) days before they filed the criminal charges, Dallagnol, the chief Prosecutor wrote via telegram that he had relevant doubts as to several crucial elements of the accusation, including no direct evidence against President Lula.
- The lack of evidence or materiality which guide all accusations against Lula has always been affirmed in all courts, be it national or international, by his legal defense. In parallel, the Prosecutors gave several interviews during the trial commenting on “suspicions” and reports, as publishing comments on social medias. Dallagnol, the Chief Prosecutor for the Carwash, via social media, threatened to go on a hunger strike if the Supreme Court, in April of last year if the Supreme Court ruled in favor of Lula and did not send him prematurely to prison.
- Notwithstanding, Dallagnol never appeared in a hearing regarding Lula´s case, in spite of having given numerous interviews on the case. Moreover, as the VazaJato clearly shows, he constantly exchanged messages with Moro on accusation strategies of the case.
- All conducts of Moro and the Prosecutors, including but not limited to the manner the attacked letter herein is drafted, is a clear violation of the Brazilian Constitutional principal of the presumption of innocence. In Brazil, such as Italy and Portugal, the presumption of innocence remains until there is a final unappealable judicial decision, which against Lula there is none.
Third Group of Misrepresentations: Politics always guided the Car Wash Operation´s actions
- Furthermore, it is not true that the Car Wash Prosecutors acted unbiasedly and independently. Moro’s and the Prosecutor’s actions always coincided with the national political calendar. “Vaza Jato” has revealed that at least their Chief Prosecutor, Deltan Dallagnol, had intended to run for a Senate seat in 2018 or 2022. The Prosecutors talked about politics the whole time. They knew Moro violated the accusatorial system and felt that the illegalities they practiced were mere “legal filigree” in comparison to the political spectrum. One of the clearest examples occurred in March 16th, 2016 when Moro and the Prosecutors agreed on the leaking, through illegal unsealing of surveillance audios, with the sole purpose of politically damaging Lula and his political allies, including former President Dilma. Such conversation was crucial to the suspension of his nomination to her cabinet in the attempt to reverse the illegitimate impeachment procedures underway in Congress.
- In one of the most paradigmatic examples of violations of Brady Principles, Moro and Federal Police agents withheld exculpatory evidences contained in the surveillance material solely to misinform the public creating an outcry for impeachment procedures. Not only the evidences were withheld from the defense attorneys but from superior courts, such as the Brazilian Supreme Court itself. These evidences were published last September 8th 2019 by Folha de São Paulo, and The Intercept which confirm, once again, the importance of the journalistic work related to the “Vaza Jato” to the Brazilian Population and Democracy. It is important to point out that the leaked messages were exchanged via telegram, with government owned mobile or computers, which the Prosecutors and Moro have refused to have turned over for forensic expert analysis. For clarity sake, the Prosecutors were discussing legal strategies and tactics related to criminal procedures they were officially conducting.
- These actions are noncompliant with Brazilian legislation as well as international standards of human rights, especially the Role of Prosecutors approved by the United Nations in 1990. Just in July 2019, the Human Rights Council extended the understanding that all United Nations guidelines on principles and ethics of conducts should be applied to digital messages and social media.
Fourth Group of Misrepresentations – Moro presided all investigative procedures against President Lula and solely presided over the trial (all collection of evidences) without any jury.
- It is not true Moro presided over only one single trial in Lula’s case. He was the presiding judge of many investigations launched against Lula and authorized invasive measures against the former President, his family members, collaborators, and even against us, his lawyers. Astonishingly enough, Moro and Dallagnol orchestrated attacks on our client and ourselves through press releases in the attempt to intimidate and shame the legal defense work, all of which has now come to light with the VazaJato leaks. It is all duly denounced in the Communication of Gross Violations of Human Rights brought by President Lula before the United Nations Human Right Committee.
- The undisputable fact is that Moro was the judge who presided over the fact-finding – during the investigation and the procedures – of the 3 main criminal actions against Lula originated in Curitiba – Car Wash Operation. He listened to witnesses and took invasive measures against Lula, his family, and even us, his lawyers. Moro solely tried and sentenced, without any jury, one of these actions and convicted Lula. Said conviction, which was confirmed by the higher courts, prevented Lula from being able to run for President in 2018 even though he was the front runner in the voting polls. The fact-finding presided by Moro was not reviewed by the Court of Appeal, the 4th Region Appellate Court [TRF4]. First, because the Brazilian tribunals do not produce evidence, but only legally review the evidence made at the trial court – in Lula’s cases presided by Moro. Second, because TRF4 judges have professional and even personal relationships with Moro and the prosecutors, all of whom have been object of Motions for Bias (Exceções de Suspeição). The messages disclosed by “Vaza Jato” give further evidence that Moro and the prosecutors knew some decisions that would be made by TRF4 in advance. Brazil’s Higher Courts (STJ and STF) are prevented from reviewing the facts defined during the evidentiary stage. In conclusion, the superior courts based their decisions on evidences produced by Moro and other members of the Car Wash Operation, and even more relevant, the evidences which were omitted and withheld from the defense counsels, superior court judges and the public in general.
- Moro benefited from the conviction he imposed on Lula by becoming the main Minister of the Brazilian President Jair Bolsonaro, who in turn was elected due to the impediment imposed on Lula to run for office. The messages released by “Vaza Jato” make it, once more, clear that the Prosecutors knew that Moro’s conducts were incompatible with the adversarial system but kept it to themselves. They had two versions, only which was shared via Telegram and a completely different one to the outside world, including the United Nations Human Rights Committee.
Fifth Group of Misrepresentations: Moro and Prosecutors withheld exculpatory evidence of innocence and convicted Lula on co-defendants testimonies´ who were trying to obtain financial and imprisonment benefits (now granted).
- Lula has been in jail, in solitary confinement, for over 530 days based on a conviction handed down by biased Moro and upheld by the TRF4 and STJ. The conviction was fundamentally based on the testimony of two co-defendants, at the time, Leo Pinheiro (hereinafter referred to as Pinheiro) and Agenor Magalhães (hereinafter referred to as Magalhães). In Brazil, co-defendants do not testify under oath and may lie without any punishment. In other words, they do not commit perjury by not speaking the truth during a trial. In April 2017, Pinheiro confirmed to us, Lula’s lawyers, just prior to the commencement of his deposition that he was negotiating a plea bargain with the Prosecutors, in order to obtain benefits concerning his sentence and his assets. During the testimony, the executive also confirmed to us, Lula’s lawyers, that he was changing his behavior in the proceedings upon advice of his lawyers. A short time before that, Folha de S. Paulo had reported that Pinheiro’s plea bargain agreement was “barred” because he had not incriminated Lula. We asked the Brazilian Chief of the Prosecution Service to investigate the case, but he refused to do so. The “Vaza Jato” messages also showed that the prosecutors arrested Leo Pinheiro so that he confessed to crimes and incriminated Lula as well. Only last week, Leo Pinheiro’s plea bargain was homologated which means he shall be leaving prison shortly.
- The judgment of conviction rendered against Lula is not supported by any sort of forensic expert opinion. There is no material evidence that Lula received values either from Leo Pinheiro or his company, only a statement by the aforementioned businessman within the previously described scenario. Nor is there any technical evidence showing that such amounts originated from Petrobras’ contracts, as stated in the prosecutors’ charges. There is also no specification of any related act within the attributions of the President of Brazil made by Lula that proves that he has participated in the alleged corruption pact described by the ruling. It is merely stated that Lula appointed the Petrobras Officers who were responsible for the graft within the company, which, besides being untrue – since the appointment of Petrobras officers is an exclusive attribution of its board of directors –, if admitted, would imply attributing to the former President an objective criminal liability, which is not allowed in Brazil. During the trial 73 (seventy three) witnesses deposed and not one could confirm the accusatory hypothesis. In conclusion, there was never quid pro quo related to any contract from the oil and gas company Petrobras. And since they could not prove any wrongdoing, irregular interference or action, the conviction sentence refers to Lula´s punishable acts as “undetermined” (item 865 of the conviction sentence on the beach charges). It is needless to point out, that there is no legal provision. No one should be convicted on undetermined acts. Surprisingly, during the trial we asked Moro to have OAS disclose all documents and contracts related to the construction and incorporation of “beach apartment”, which was blatantly denied. At that time, we took it upon ourselves to perform diligences before all Registries and Notaries in the states of São Paulo and Bahia, only to find exculpatory evidence, which is a document proving beyond a reasonable doubt that the aforementioned beach apartment had its economic value (with renovations) sold to an investment fund, managed by a bank – Caixa Econômica Federal – CEF, in a complex financial operation. In summary, the ownership of the “beach apartment” could only have been assigned and registered if the proper amount was duly paid in a specific bank account laid out in the contracts. It is noteworthy that, as per Brazilian legislation, (i) one may only have ownership of an apartment if the property deed is registered before the proper Real Estate Registry; and (ii) one may only have possession if he or she may enjoy the use of such property. It is also a fact that neither of these elements are present in the criminal charge related to the beach apartment. It is also indisputable that Lula went to the apartment, one time, to decide whether he had interest in purchasing it. This fact took place in 2014, when he had already left office for at least 4 years.
- The conviction handed down against Lula in the case judged by former judge Sergio Moro on July 9th 2017, is not final yet. The Brazilian Federal Constitution, again, made a conscious choice in 1988 to established that the presumption of innocence – and, consequently, the enforcement of a sentence – can only be dismissed by means of a final and unappealable conviction, which does not exist against Lula. On April 4th, 2018, the Supreme Court ruled on a petition for a preventive habeas corpus so that Lula was not arrested. The writ was denied by 6×5 based on admissibility technicalities. On the day of the trial, one of the leading generals of the Brazilian army posted a message on social media in an extremely threatening tone.
Sixth Group of Misrepresentations: Moro presided over nearly the entirety of the Car Wash second trial (country house in Atibaia) which resulted in Lula´s conviction. Judge Hardt merely took the co- defendants testimonies and sentenced it in the manner described below.
- In the second trial and conviction on February 2019, the judgment rendered by Gabriela Hardt (hereinafter referred to as Hardt), who has momentarily replaced Moro after he became a politician and went to work in the government, has not yet been reviewed by the 4th Region Court of Appeals. Although the Prosecutors, omit from their letter the fact that, it could be understood as the same sentencing reasons.
- During such trial, Moro and Prosecutors working together, did not produce any forensic evidence on “follow the money”, and on its turn during the sentencing Hardt completely disregards Lula´s defense´s own “follow the money” forensic expert report which clearly destroyed the accusation hypothesis.
- In this criminal procedure, Lula was convicted of having allegedly “received” undue advantages nearly to USD 200,000.00 through renovations in a country house which he never had ownership of.
- Surprisingly enough, a forensic technical expert report proves that Hardt used Moro’s earlier ruling to draft her decision against Lula. She was not even concerned about the wording in the decision, treating José Adelmário Pinheiro, also known as Leo Pinheiro, as if they were two different people. She admitted to the press that she “utilized” Moro’s decision to draft her own.
- There is no material evidence that Lula received values either from Leo Pinheiro and other plea bargainers from Odebrecht. On this note, one of the plea bargainers who testified on this trial has recently affirmed, before a court of law and under threat of perjury, he had been “almost coerced” to construct a narrative about the country house in Atibaia object of the accusation in the second trial.
Final Group of Further Misrepresentations
32 . The affirmation that President Lula is also being criminally charged in different locations withholds the information that such charges are brought by all interconnected prosecutors who actively and openly discuss timing, strategy and, informally exchange documents through Telegram messages, as shown by the VazaJato.
- They also mislead the jurists by withholding the information that President Lula was acquitted in one of the charges. Just this week, yet another magistrate has just dismissed one charge due to its obvious frivolous accusation.
- In another example the letter accuses former President Lula of having, directly or indirectly received benefits of almost USD 5,000,000.00 (five million dollars) without ever having shown any evidence such as forensic expert reports, documents, bank accounts or even a credible legal theory. Again, there is not one shred of credible evidence to confirm their accusation hypothesis.
- In their letter, the Prosecutors refer to Odebrecht´s Leniency Agreement withholding the information that they have refused to disclose substantial part of the process related to such agreement to the legal defense. It is a clear violation of the principle of equality of arms and Brady Principles.
- We are in possession of all the phone surveillance recordings, police reports, including the conversations illegally tapped from our telephone extensions, to prove that the Car Wash Prosecutors were not truthful in the letter published by GAB – The Global Anticorruption Blog, based in the United States of America. We also have all the documentation pertaining to the lawsuits against Lula and the messages already published by “Vaza Jato” are vehemently confirmed by the contexts of such legal proceedings.
- We, hereby, confirm there are hard evidences which expose the unfairness and injustice to which Lula and his family and lawyers have subject to by the accusation of the Car Wash Operation, including Moro and the Prosecutors. The lack of independence of the trial should also be a matter for the academia to study, for the presumption of guilt created by the irregular partnership of parts of the mainstream media and parts of the Judiciary system in Brazil is unprecedented and led to irreparable harm to the Brazilian Rule of Law and in the end Democracy itself. A true attempt of reputation assassination.
- Since 2016, we have undertaken to scientifically study the overwhelming and violent phenomenon surrounding Lula´s Case, which has led us to work closely with an international team of world renowned experts in various disciplines surrounding “Lawfare” which is the misuse and abuse of the law for illegitimate purposes of causing harm to a chosen enemy. In Lula´s case it is politically motivated.
- Therefore, notwithstanding the legal measures the legal Defense will undertake as a result of the improper attack to our reputation, we challenge the Prosecutors to hold an international conference at which we could present to the world these new audios and documents (illegal surveillance of defense attorneys) and, consequently, demonstrate that Moro and the Prosecutors have committed unprecedented illegal actions against President Lula, his family, and us, his lawyers, and committed gross violations of human rights against the former President.
Please do not hesitate to contact us should you need any additional information on the content hereof,
Valeska T. Z. Martins Cristiano Zanin Martins