Brazilian Ex-Leader’s Kafkaesque Imprisonment: Defense Lawyer Speaks Out

On July 8th, 2018, Brazil’s 4th Regional Federal Court Chief Judge Rogerio Favreto ordered ex-President Luiz Inacio Lula da Silva’s immediate release from prison. From a vacation resort where he was enjoying his holidays, Judge Sergio Moro, a lower court judge and hero to the Brazilian far right who has been working closely with the US Department of Justice for several years, immediately ordered the Federal Police to disobey the release order. It was just one more chapter in a Kafkaesque process which has resulted in the imprisonment of the center-left former president on frivolous charges with no material evidence during an election year in which he is the undisputed front-runner for the presidency, despite being held in solitary confinement and barred from giving interviews for the past three months.

During a press conference at the Geneva Press Club on July 3, British barrister and Queen’s Counsel Geoffrey Robertson and Lula’s defense lawyer Valeska Texeira Martins revealed that, although the Brazilian government recently requested the UN Human Rights Committee to halt its investigation into ex-President Lula’s arrest, it was rejected and the investigation is moving forwards.

The UNHRC is looking at whether Lula was denied his right to a fair trail with an impartial judge. Issues that contributed to the Committee’s decision to investigate the case include the fact that Judge Sergio Moro admitted to breaking the law by illegally wiretapping Lula’s defense lawyers but was allowed to continue presiding over his own investigation. The Committee is also investigating whether Lula’s political right to campaign is being denied, as other candidates are publicly criticizing him and he is not being allowed to respond.

Meanwhile, the Anglo press has continually published misinformation about Lula’s case, why he is in jail, and the fact that he is officially registered by the PT Party as its pre-candidate for the presidency.

Lula’s defense lawyer, Valeska Martins contends that Lula is victim of a political persecution masked in legal processes which she calls Lawfare. In the following interview, she explains why.

What is Lawfare?

The law can destroy reputations, it can destroy assets, it can destroy freedom and it can end people’s lives. So when it is misused it is extremely violent. Lawfare is the abuse and misuse of the law in a violent manner to conduct political persecution. We are able to identify all of the dimensions, tactics, and strategies typically used in Lawfare in the persecution of Lula. The prosecutors did not produce one single piece of evidence or one single logical accusation against him, even on that day when they invited all the mainstream media outlets to a hotel and made that sensationalist PowerPoint presentation with the clear intention of achieving a political goal. The fact is that making someone a defendant or putting him under criminal investigation is already a form of punishment. Basically it is a battle, a legal war with the goal of dehumanizing and defaming a political enemy. So, when people say we are politicizing the defense, this is a lie because, in reality, this is a technical diagnosis. When we understand that, technically speaking, there is no material evidence, that the accusations are illogical, that the legal arguments are misrepresented, we come to the unequivocal conclusion that we are dealing with a process of Lawfare.

Do you think that the foreign journalists understood the judgment against Lula?

It is easy to get lost in the details and just repeat what the prosecutors say, ignoring the defense, or to get stuck in a ‘he said she said,’ because the language is very technical. This causes a huge barrier for people who are trying to understand how this political persecution is taking place.

The biggest problem with Lawfare is the following: a political fight is transferred into the legal realm so the only people who understand what is happening are lawyers and judges. Due to the technical nature of legal jargon, reporters have problems making any kind of critical analysis. It is literally lost in the translation.

When Lula was arrested on April 7th, most English language newspapers that covered the story falsely insinuated that his arrest was connected to a bribery scheme involving Petrobras. Although prosecutors mentioned this to the press in 2016, this charge was not including in Lula’s judgement, which condemns him for committing “undetermined acts”. What do you think that the Anglo newspapers are doing wrong in the way they are writing about Lula’s case and in the way they are speaking to and quoting you and the other defense attorneys?

It is completely unequal. We have been holding national and international press conferences for two years now, since the beginning of the case. We have carefully explained and shown all of the material evidence and all of the testimonies and explained, in minute detail, everything that enables us to show former President Lula’s innocence beyond the shadow of a doubt. The fact is that the foreign press ignored us and constantly repeated an accusation that was made long ago, in September 2016. After that accusation was made there was a trial. During the trial prosecutors were unable to prove that Lula committed one single act of corruption. This is why the sentence convicts him for ‘undetermined acts’. This alone is something that you would think would draw the attention of the international press, because no other country in the world convicts people for ‘undetermined acts’. They are unable to explain what the act of corruption was. In relation to Petrobras, we have continually repeated the fact that Judge Sergio Moro himself admitted, in his decision regarding the motion for clarification, that he never said or accused former President Lula of receiving any illicit funds from Petrobras. This statement should annul the Thirteenth Court’s jurisdiction over the case and the entire case should be dismissed. When you have a trial in a court that has no jurisdiction over it, the case is dismissed. Another reason why there is no “Petrobras connection” to Lula’s arrest is that there are no acts of corruption – he wasn’t convicted for corruption, he was convicted for undetermined acts. In relation to the apartment, they were unable to prove ownership and they even speak of an “attribution” – a concept which does not exist in legal terms. There is no such thing as the “attribution” of an apartment in Brazilian law. So I wish that the press would start acting more critically and conduct critical analysis of the facts surrounding the case. After all, the facts overturn any and all accusations of money laundering and corruption against former President Lula, which in turn transforms this entire proceeding into an unfair trial. Consequently, they shouldn’t have the authority to put him in jail or bar him from running in the elections.

Are they showing any more fairness, in your opinion, in the way they are writing about the new accusations against Lula?

It is the same modus operandi and this is a common Lawfare tactic: the prosecution presents so many allegations and convoluted charges against a political rival that it becomes difficult for journalists to address or even understand them. The new charges are related to the building where the Lula Institute operates and Lula’s frequent use of a country house and they are using the same methodology from the previous case.

There is a huge legal irregularity in all of the Lava Jato cases involving Odebrecht Engineering Company: the Company’s MyWebDay accounting software system and the way Sergio Moro’s task force is using it. At first the prosecutors said they didn’t have the system, then they said they had it, then they said they didn’t have it. Finally, they said they were “recreating” what was in the system and were making it publicly available. This is when we discovered that they had created the entire system themselves and that it was not the original system used by Odebrecht. They created it with different security parameters, opened it in places where it shouldn’t have been opened without taking security measures and new archives may have been inserted into or deleted from it. The Lava Jatotask force are using this system as the basis for all of their accusations, not only in Brazil but across Latin America and Africa. The system has obviously been corrupted but journalists, including foreign ones, are not asking any questions about it. They are also using Excel spread sheets in the trials. Where do they come from? Are they reliable? How can they use these Excel spreadsheets in countries like Brazil, Ecuador and Peru to convict people for crimes without explaining to anyone where they come from? The defense teams from all of the different cases have been explaining this all along in regular press conferences, so it seems like there hasn’t been much desire on the part of journalists to establish any kind of certainty related to these cases. Instead, they seem to just repeat everything the prosecutors say at face value.

Odebrecht Engineering company was one of the largest employers in Brazil when the Lava Jato investigation froze its operations in 2015, causing around 500,000 immediate layoffs in the construction industry. This had a negative effect on the Brazilian economy. Why do you think that Odebrecht was not treated as too big to fail, like Goldman Sachs and Volkswagen were when executives in those companies were embroiled in mega-corruption scandals? Why was the approach in Brazil different from the US and Germany?

It is hard to explain the reasons behind this different approach but, without a doubt, the company should have been kept in full operational mode and the jobs should have been preserved. If the executives did anything illicit, they should be punished. This is what every civilized country around the world would do with a company that is as strategic for its economy as Odebrecht was for Brazil. After all, it was not only important in the engineering and defense industries, but it held a 50% share in the petrochemical giant Braskem which will now also be dismantled and alienated. In other words, they are dismantling a company that was an internationally competitive, national symbol. Regardless of who committed any illicit acts, the company itself should not have been punished in this manner, without a doubt. We can see that there are ulterior motives behind the way these corruption accusations are being used to dismantle certain companies that are strategic for Brazil. I think we will have to talk more about this in the future when this story is really unveiled. Brazilians should demand an explanation from the Government for why they are dismantling these companies. Even if the judiciary is to blame and has created this situation, the Government should be treating these companies as too big to fail, as the US does. Today we have some answers but we continue to have a lot more questions about the Lava Jato investigation and what its real goals were.

What are some of these questions?

For example, regarding the informal cooperation between the US Department of Justice and Brazilian public prosecutors, what evidence was exchanged? What was its role in building the case and convicting President Lula, which American prosecutors spoke about in 2017 at the Atlantic Council? I think we need to understand this. Brazil needs to understand more about this informal cooperation which has been happening since the beginning of Operation Lava Jato.

Another question is why the Lava Jato investigation is allowed to operate unlawfully. It is an operation that is, exceptionally, not required to comply with general regulations. Lava Jato has extensively violated peoples’ human rights and the task force engages in illegal behavior without any fear of reprisal or suspension. For example, a total of 227 bench warrants were issued. These are 227 testimonies that were illegally and unconstitutionally taken by force. So what is happening to these 227 people? These were 227 acts of violence. The police and the prosecutors pulled these people out of their houses at 6 AM to give depositions that they were not legally obliged to make.

In a recent article Tacla Duran, who is a former lawyer from Odebrecht, accuses the Lava Jato task force of excluding or destroying evidence beneficial to the defense. In the United States this is a violation of the Brady Rules. US Department of Justice officials have been caught before violating Brady Rules in the United States. Do you think that, if this really happened, the idea to destroy evidence beneficial to the defense came from the Americans in the DOJ? 

Regarding what happened in the United States, I’m not familiar with those cases. I think that Tacla Duran can and should be heard as a witness in the case against former President Lula. He talks about the destruction of evidence and explains how the MyWebDay system information is not trustworthy and how it should not be used as evidence in any legal proceeding related to Odebrecht. What we see in our case are obstacles to requesting evidence. We requested a forensic expert report in order to follow the money in Lula’s case. It would serve as evidence for the defense because it would show no connection between Petrobras and any asset or monetary value in any of his bank accounts. So we requested this forensic report and it was denied. When we found out about the bonds that had been issued and the fiduciary assignment agreement, which would definitely explain the ownership of the apartment, we specifically requested these documents to be included in the case files. They would prove the president’s innocence once and for all. This was also denied. So we have serious problems obtaining key evidence. We don’t have a Discovery system here in Brazil like you have in the United States, so obtaining exculpatory evidence is practically impossible if you don’t have an impartial prosecution. The judge has the power to deny access depending on what you request. Another challenge for us has been to to find out exactly what we have to request. We discovered a large amount of evidence on our own through due diligence in the Notary Public offices, but it was all completely ignored by the court. The evidence was not addressed in the judgment of conviction. It was simply ignored. We definitely see that exculpatory pieces of evidence have been hidden in our case, something which is a violation of the Brady Principle in the United States. This is exactly what we see in the case regarding the beach apartment, where the Federal Police and Federal Prosecutors conducting the investigation do not bring the exculpatory evidence into the files, seriously harming the defense. Concerning Odebrecht, we were not allowed to access the evidence through full and unrestricted access to Odebrecht’s systems. Even in the hearings, we aren’t allowed to ask questions to the witnesses according to the logical objectives of the defense. Some of our questions were denied for no reason, with no justification, which violates the principle of the equality of arms. This lack of equal treatment between the defense and the prosecution and the lack of rules, including procedural ones, seriously compromises the work of the defense, not only Lula’s but of any defendants’ in Brazil.

A recent news story came out saying that the Car Wash prosecution team wiretapped your office phones. Is this a crime in Brazil?

It is a crime in Brazil and anywhere in the world. This is what happened: in 2016 they bugged our central telephone line, which relays the conversations of 25 lawyers, our office staff and our clients. When the phone company found this out they sent Judge Moro a notice and he ignored it. Then the telephone company sent Judge Moro a second notice and, once again, he ignored it. When this went public back in 2016, Sergio Moro was admonished by the Supreme Court for illegally tapping and leaking confidential phone conversations between lawyers and clients. Moro said it had been a mistake and that he would destroy the audio files if the procedures returned to his jurisdiction. Two years later, when the case returned to his jurisdiction, we were surprised by the fact that he deliberately gave access to all the audio files for all of the defendants’ lawyers, including our phone calls. I believe that audio files of 411 of our conversations were made available. We fought for them to be destroyed because they contained confidential information about our lawyers, other employees and our clients. To our surprise, when we sent a lawyer over to listen to the files and verify what was in them, he found a chart that a Federal Agent had used, based on our phone conversations, to map out every potential move that would be made by the defense. For example, “Cristiano Martins spoke with the lawyer Nilo Batista and they decided that if X happens they will file a petition for habeas corpus. If Y happens they will file a petition for a writ of mandamus.” They mapped out Lula’s defense so that they could anticipate all of its moves. There is no precedent like this in the world. There is no other precedent like this in any civilized country. There is a case in Spain where a judge wire tapped a lawyer and he was suspended for 11 years. The idea that they were allowed to monitor the defense through its central phone line and anticipate its strategy by mapping out its moves – this is something that really needs to be explained and somebody needs to held accountable for it. The Lava Jato task force has to explain how this type of monitoring, which enables them to anticipate every move of the defense, can be acceptable in a democracy. No State that operates according to the rule of law allows this type of behavior. You do not abide by the rule of law when this type of defense rights violation is allowed to happen. We complained about this to the United Nations and the Brazilian Bar Association (OAB) and we are waiting for reparation. There are many examples of the Lava Jato team breaking the law. Some of them really stand out but they are all equally violent and crass.

Why wasn’t Judge Moro pulled off the case if he admitted he broke the law?

In March 2016 the story broke and the audio recordings [between President Dilma Rousseff and Lula] were released. At that time, 19 lawyers filed a complaint against Judge Moro in the 4^th Federal Regional Court (TRF-4) and there was that famous, 13-1 judgment, in which they ruled that Judge Sergio Moro, due to the exceptionalism of the Lava Jato case, did not have to follow the general rules. Therefore, the court authorized the Lava Jatotask force to operate outside of the law, as a trial of exception. The Lava Jato operation was authorized by the TRF-4 to operate above the law. Raul Zaffaroni, the famous Argentinian legal scholar and Inter-American Human Rights Court Judge, describes this decision by the TRF-4 as an international legal scandal. There is no other precedent in the world in which a court has allowed a prosecutor/judge to act illegally or above the law. And the ruling was made by thirteen judges to one.

What do you think will happen to Lula now? Some people say that he could be released soon. Do you think they will keep him in jail until after the elections?

He should not even be in jail. The TRF-4 used a precedent to automatically arrest Lula after the second appeal. The precedent they cited, however, is from a Supreme Court ruling which does not mandate automatic imprisonment. It speaks of the “possibility of imprisonment” after the second appeal is denied, only if it is justified. In that case we filed a habeas corpus against this order with the Superior Justice Court and, afterwards, the Federal Supreme Court. We had 10 justices discussing the general concept of the possibility of arresting someone after the second appeal but nobody was talking about the actual habeas corpus. [Supreme Court Minister] Rosa Weber was the only justice who addressed the actual habeas corpus. So there was a distortion in the judgment and we have appealed to have it reanalyzed. Regardless, the arrest warrant was issued before we had exhausted all legal remedies before the Appellate Court (TRF4). We understand that Lula’s imprisonment was absolutely arbitrary. Furthermore, his arrest is having nefarious consequences for the Nation. A report came out in the press the other day stating that, in São Paulo alone, 14,000 people have now been arrested because of the ruling on ex-President Lula which enabled imprisonment after the second appeal is denied. Last week we filed two precautionary measures so that a stay motion could be imposed on the special appeals that we filed with the Superior Justice Court and the Federal Supreme Court. The special appeals aim to reanalyze the constitutional violations that occurred during the prosecution. We are asking the Supreme Justice Court to consider the measure due to the clear violations of federal laws, and the Federal Supreme Court to consider the measure as result of the clear and gross violations of Lula´s constitutional guarantees. We are hopeful because this procedure was full of irregularities from start to finish and the proof of innocence is extremely blatant. All of the evidence points to ex-President Lula’s innocence. Regarding his right to run for office, our Constitution speaks of barring political rights only after all of the appeals processes have been denied and there is a final ruling. There is another law, called ficha limpa which could be used to justify denying his rights. I will not go into whether it is constitutional or not but in any event all international treaties which speak of barring people from running for office always speak of removal of political rights only if preceded by an fair, independent and impartial trial. It is clear that ex-President Lula did not have a fair, impartial and independent trial. This is why we filed a complaint to the UN Human Rights Committee, which functions as a World Court for many nations [like Brazil, which signed the Optional Protocol] and this is why it has agreed to analyze the case and rule on whether Lula can run for office. So now we have a situation in Brazil in which if they deny Lula’s political rights through this unfair process and he is not allowed to participate in the elections, a World Court may rule that the electoral front-runner was illegally removed. It is a very worrying situation for the legitimacy of democracy in Brazil. His imprisonment is already violating his right to campaign. All of the other candidates are traveling around Brazil, doing interviews. Some of them are making false accusations against Lula and he is not being given the right to defend himself.

If he were guilty of anything, he would also deserve a fair trial, but President Lula is the victim of injustice because there is not one piece of material evidence against him. But when everyone says there is no proof its wrong. We on the defense don’t say that there is no proof because we proved that he is innocent. The existing material evidence proves his innocence. So we have a lot of hope and we will continue fighting until justice is made so that his freedom is decreed and so that he can run for office, which is his right.