Lula’s lawyers explain why the conviction of the ex-President should be annulled

Zanin and Lula

Lawyer Cristiano Zanin Martins with ex-President Lula

The lawyers Cristiano Zanin Martins and Valeska Teixeira Martins wrote an article published this Monday by the newspaper Folha de S. Paulo:

Brazil’s Supreme Federal Court (STF) will be evaluating the habeas corpus petition we filed on behalf of ex-President Luiz Inácio Lula da Silva (PT) on the 5th of November 2018 this Tuesday (June 25). If the rule of law is to prevail, Lula will have his liberty restored to him and the proceedings must go back to the beginning, presided over by a natural, independent and impartial judge, which for the ex-President has never been the case up until now.

The Federal Constitution and the legislation do not allow the conducting of proceedings and their conclusion by a judge who has, or apparently has an interest in the outcome.

Any mere doubt over the impartiality of the exemption of the judge is sufficient grounds for their recusal. Besides seeking to protect the fundamental rights of citizens, this aims to protect he image and reliability of the Justice system itself that is an essential element to democracy.

There is no argument as to the fact that in 2016, Judge Moro illegally authorized the intercepting of the main telephone line to our offices for 23 days, and together with prosecutors and police, monitored the conversations we had about the legal strategy for the defence of ex-President Lula. At that time, we discussed a Supreme Court appeal (Originary Civil Action 2.833) that the Federal Prosecutor for Paraná had no legal attribution to take any initiative in the so-called “triplex case”. It should be highlighted that our work was scandalously monitored when Judge Moro and the prosecutors were disputing the Lula case with other jurisdictions.

The most senior Supreme Court Justice, Celso de Mello, recognized the suspected partiality of Moro in 2013 in judging an appeal involving the monitoring of other lawyers authorized by the ex-judge, noting at the time in a losing vote that this fault must be recognized “in anomalous situations where the judge takes on the role of the real investigator” (habeas corpus 95.518).

This is  exactly what has been verified in the proceedings that resulted in the conviction of ex-President Lula, because besides the monitoring of the defence team, there were numerous other similarly uncontested deeds that show judge Moro not to be impartial.

In this vein we can cite: (a) the rulings made even before the criminal indictment (such as the forced deposition with no legal base), which clearly showed the predisposition of the current Minister of Justice to convict Lula; (b) the task force led by Judge Moro to impede fulfilment of the release order issued by a federal appeal judge of the TRF-4 4th Federal Regional Court in July 2018; (c) the official lifting of judicial secrecy of material on the eve last Presidential elections and also (d) the move of judge Moro to the post of Minister of Justice in a government where the impediment of the Lula candidacy in the election was decisive, on the basis of the conviction passed down by the ex-judge – even going against the UN rulings.

Judge Moro argues endlessly that his sentencing has been reviewed by other judges. But besides the fault of partiality contaminating the proceedings, regardless of the evidence of such prejudice, given the gravity in this case, the damage is obvious. In the crusade against Lula, his defence was treated as a mere formality; relevant evidence was excluded and the deeds of the judge in the case created the expectation of conviction in the public mind that was hard to overturn even with the proof of innocence we presented.

The recent reports by the site “The Intercept” have revealed new and shocking elements that prove the history of judicial persecution against Lula (“lawfare”) and will be very important in the future analysis of the process of erosion of democracy in the country.

Regardless of this episode, the facts for grounds of the habeas corpus petition are more than sufficient to nullify the proceedings against Lula and for his immediate release.