Source: El País
14 June 2018
By Rodrigo Tacla Duran
Gag: the same as muzzle, a cloth or any object put in the mouth to impede someone from speaking or shouting. Using force and coercion to impede someone from speaking. The short and precise dictionary definition shows that the gag is the sister of brutality and the daughter of authoritarianism with intolerance. On June 2, the lawyer Renato Moraes published an article in the newspaper O Globo exposing the harsh reality of a Brazil where Justice has given a bad example of despising the law and the Constitution. The brilliant jurist wrote: “We have arrived at the precipice of authoritarianism. There are those who are shamelessly outlining, the line of thought that between the Constitution and an indistinct will of the people one should side with the people, as if the Constitution were not the sole refuge against authoritarianism”.
In his criticism against so-called judicial populism, Moraes remembers that public opinion is the favourite child of published and media opinion in real time through the mass media. The aggravating: in this time of large scale investigations and exposure of the country’s inner workings, published opinion comes ready packaged from sources such as the Federal Prosecutor’s Office, the police and even from judges. A large part of the media stopped investigating, from ensuring any cross-examination, becoming docile and poisoned channel of communication of those who decided to do justice despite any Constitutional and legal concerns, invoking the application of legal norms voted and passed by the United States Congress.
In this Brazil where first instance judges try to apply US law, where prosecutors rail at Supreme Court judges as if they were in a football stadium, and plea bargains are selective, I suddenly found myself in an unprecedented situation, where I am prohibited from testifying by legal order from judge Sergio Moro. I imagine a situation such as this may have occurred in the Vargas regime or during the military dictatorship, but in a democracy this is inexplicable. Besides being illegal, the prohibition is unjust as it violates the right of defendants to produce witness evidence they judge to be important in their defence. The only two times I was heard and could give my version of certain facts was on November 30th 2017 in the congressional inquiry into JBS and on June 5th 2018 at the Human Rights Commission in Congress. On neither occasion did the Prosecutor’s Office show any interest in the facts I spoke of.
I was heard as a witness by Justice representatives of Peru, Andorra, Switzerland, Argentina, Ecuador, Mexico and Spain. Amongst the direct and indirect consequences of these hearings, one ex-Minister of Ecuador was imprisoned, the President of Peru resigned and Uruguay extradited an ex-member of staff of the BPA Bank to Andorra. All this was widely circulated in the international media. As if nothing of this were pertinent, I continue to be prohibited from speaking to the Justice Department in Brazil. I have never been allowed to testify, despite being called to do so five times by the defence of ex-President Lula.
Recently, Judge Sergio Moro overruled a motion from the defence of Marcelo Odebrecht to hear testimony from the lawyers Monica Odebrecht, his sister, and Mauricio Roberto Carvalho Ferro, brother-in-law. The testimony from the Odebrecht lawyer Marta Pacheco, as a witness for Marcelo, was overruled to respect the prerogative of professional confidentiality. It is quite right that everyone has prerogatives and these should be respected, including professional confidentiality. In this regard there can be no room for differing weights and measures. When I worked for Odebrecht, I had dealings with these three professionals on matters which the judge recognises as deserving of protection. However, the Curitiba task force did not have the same care for such prerogatives when they were dealing with me. In fact it was quite the contrary, they criminalized my work as a lawyer and pressured me the whole time to obtain the same confidential information as judge Sergio Moro decided to protect.
More than two years ago I freely sought out the Lava Jato task force in Curitiba. I was with the prosecutors in person on three occasions. I did not at any time disclose any information of any client. In all the meetings, I was dealt with as someone who was judged and convicted and I was only not imprisoned. I have been a lawyer for more than 20 years. I looked at that situation and thought this can not be real. How can they convict me without due process, without evidence, without sentencing me? The prosecutors of the task force in Curitiba never wanted to listen to me, to know what I had to say or to give any opportunity to the defence. They always wielded the threat of preventive custody. It is humiliating to be accused of crimes one has not committed, to be offended and disqualified publicly.
In not giving me the chance of defence, judge Sergio Moro is completely ignoring the Constitution, the Organic Law of Magistracy, the Criminal Code, the Criminal Procedural Code, the Statute of Advocacy and the Statute of the Rights of Man of the Unite Nations. He even ignores the United States law, which He prizes so much, because there no-one is convicted without evidence and without the right to defence. Kant taught that legal action is unjust when it impedes the freedom of another and, in this specific case I am referring to the right to a full defence. Therefore no judge can adopt any conduct other than that provided for in the law, even if he disagrees with it. Injustice is a choice; and Justice is a duty. There are no shortcuts in the realm of the law. In order to convict someone, there must be an investigation, proof and defence. This makes for hard work and this takes time, but it is correct. In my case, no evidence has ever been produced against me, and an investigation in Spain has already been closed for lack of evidence.
There are grave facts not only concerning my right to defence, but also that of many others. The first of these is the disappearance of Inquiry 186/2016 from the São Paulo Federal Police. It has simply disappeared. Part of this inquiry was sent to the Commission of Inquiry into JBS at the time of my testimony. This inquiry is very important to my defence as it contains clarifications into the accusations laid against me. For two months my lawyers have tried to locate this inquiry. The Federal Police in São Paulo informed that they sent it to Curitiba. However, in Curitiba this inquiry does not exist because no-one knows where it is. The disappearance of the files belonging to the investigation is something very serious.
In my case, this is not the first time that such things have happened. Last year, I asked the Notary Office of the 1st Jurisdiction of Municipal Fiscal Executions of Curitiba for an object and standing certificate showing that the lawyer Carlos Zucolotto was acting as defence lawyer on legal suits involving my family. The Notary Office took about six months to issue the certificate and when they did so, it was done without the name of Carlos Zucolotto. After all this delay, the Notary Office informed that the power-of-attorney authorising the Zucolotto law firm had been taken from the case records without any written authorization from the judge and without any communication to the parties involved. A lawyer from my office received the information from the counter, or in other words, unofficially, that the power-of-attorney had been taken on the orders of Zucolotto himself. He alleged, according to the information, not having authorized the inclusion of this document in the case records. However, I have in my possession his authorization sent by e-mail. These very grave facts were omitted by the inspecting judge, who once aware of this, should have taken the steps to clarify this fact, because this is documentary evidence necessary for any motion of impediment or suspicion of judge Sergio Moro.
For four years we have been living with two judges, two Moros. The first has become a hero both in Brazil and abroad for his work in Operation Lava Jato and his intransigent posture in relation to corruption. He is celebrated in the salons of the United States and in the Principality of Monaco. The other is severely criticized by judges and lawyers unable to swallow the violation of rights, as in the case of phone-tapping the offices of the lawyer of ex-President Lula and of various search and seizure orders of law firms, including my own. He is also criticized by defenders of human rights both in Brazil and abroad for the practice of hindering the right to a defence and the politicization of criminal procedures in Brazil. This is the dark side of Sergio Moro.
The judge was irritated by me because He was obliged to inform the Federal Revenue Service Who the collaborators were in my office, and amongst those professionals providing services was the name of the lawyer Carlos Zucolotto, my correspondent in Curitiba. This professional relationship with Zucolotto has been going on long before any investigation into myself. I did not have the least idea that He was a friend and witness at the wedding of Moro. I was obliged to give this information to the Federal Revenue Service during the course of an audit of my office. This audit took two years and was twice extended. In the end, to inform the Federal Revenue Service concluded that I had not committed any tax or accounting irregularities, much less any crime.
Later on, in 2016, Zucolotto asked me for US$ 5 million in Exchange for his intermediation during negotiation of an agreement with the task force in Curitiba, whose contents were equivalent to a sentence for crimes I had not committed. Strangely, this uncomfortable truth was never investigated. However, recently charges of the sale of protection by other Curitiba lawyers have arisen, making the investigation essential in order to clarify any occurrence of influence trafficking, administrative advocacy or extortion.
Today, those who question the modus operandi of the task force in Curitiba in the production of serial plea bargains are considered an enemy of Lava Jato. I ask: are the lawyers who defend our rights, the rule of law and the legal guarantees enemies of Lava Jato and accomplices to corruption? Do we have to be accomplices to the brutality, to the overriding of laws and the diminishing of rights practiced by public servants? All this is very much like that which the writer Hannah Arendt defined as the banality of evil in writing about the judgement of Adolf Eichmann in 1961.
Operation Lava Jato has become a centre of political power, able to destroy reputations, companies and institutions. In reality, it is a kind of parallel power which for four years has influenced the conduction of politics and the economy of the country without any such mandate and jurisdiction to do so. They have pressured Congress, the Executive and the Federal Supreme Court, trodden on the constitutional rights of lawyers and criminalized the defence lawyers as if they were the only ones to have legitimacy and the monopoly over ethics and morals.
When I was called to testify for ex-President Lula, I became a target of attacks from some prosecutors of the task force in Curitiba and was publicly condemned. At that time, I understood that I would never be accepted as a witness, neither for ex-President Lula nor for President Michel Temer, where my name was cited in the Prosecution Service charges. I shall not serve as witness to anyone, because that is what Judge Sergio Moro and prosecutors of the task force wish. The Abuse of Authority Law was called the Gagging Law, but they do not have the least scruples when gagging witnesses able to threaten their arguments and strategies of accusation.
Despite never having been convicted and with my extradition being unanimously denied by Spanish Justice, Judge Sergio Moro offended me live on national television, on the programme Roda Viva. Without the least ceremony, He broke with the decorum required by article 36, sub-section 3 of the Organic Law of Magistracy, and prejudged me and convicted me. If he has not heard me, never given me the opportunity of a defence, nor even judged me, as he has no authority, nor the impartiality to do so, and he can not and must not, in regard to the law, make any judgement of value, pre-judge, defame and slander. He is the judge, not the prosecution.
Justice is a good of democratic societies and must be exercised with authority, never with authoritarianism. When a judge issues an opinion against someone who is a defendant in their court, this is prejudging and violates one of the most elementary principles of human rights, the right to an impartial technical judgement, without emotional ties of any kind. Sergio Moro prohibited me from testifying, but he can not stop me from speaking.
Rodrigo Tacla Duran is a lawyer.
Consultor Juridico magazine