HONORABLE CHIEF APPELLATE JUDGE OF THE REGIONAL FEDERAL COURT OF THE 4TH REGION

Transcription

1 HONORABLE CHIEF APPELLATE JUDGE OF THE REGIONAL FEDERAL COURT OF THE 4TH REGION CRISTIANO ZANIN MARTINS, Brazilian, married, attorney registered with the State of Brazilian Bar Association under number , VALESKA TEIXEIRA ZANIN MARTINS, Brazilian, married, attorney, registered with the State of Brazilian Bar Association under number and PEDRO HENRIQUE VIANA MARTINEZ, Brazilian, single, attorney, registered with the State of Brazilian Bar Association under number , business address 755, Rua Padre João Manoel, 19 th andar, Jardim Paulista, CEP , São Paulo/SP, respectfully come before you, with grounds on Article 5, LXVIII, and 108, I, d, of the Brazilian Constitution, Articles 647 and 648, item I, of the Code of Criminal Procedure and other effective rules, to file for a WRIT OF HABEAS CORPUS on behalf of LUIZ INÁCIO LULA DA SILVA, Brazilian, widower, Identity Card No , Individual Taxpayer Identification No , who resides at

2 1,501, Avenida Francisco Prestes Maia, apartment 122, Bloco 1 Centro in São Bernardo do Campo/SP, CEP , against an unlawful act of the Judge of the 13 th Federal Criminal Court of the Curitiba/PR Judicial District in the record of Motion for Impeachment of Document No In a decision rendered on regarding the aforementioned case, said Judicial Authority denied, for the second time, a request to examine a witness, request that was made in motions filed on and , thus violating the right to a fair opportunity to be heard and an adversary hearing, something which implies a serious and clear illegal duress on the Arrestee, all based on the following findings of fact and conclusions of law. I RELEVANCE OF THE CHOSEN MEANS The writ of habeas corpus, in spite of being provided by the Code of Criminal Procedure, is a broader constitutional writ of mandamus whose purpose is to protect, jurisdictionally and concretely, the individual s fundamental rights and guarantees, as Article 5, item LXVIII, of the Federal Constitution provides: LXVIII - habeas corpus shall be granted whenever a person suffers or is in danger of suffering violence or restraint on their individual liberty, on account of illegal actions or abuse of power; Thus, this writ is based on the utmost important protection provided by the democratic legal system on individual liberties, enshrined by the Constitution as an appropriate, available, and effective means to avoid any threat of violence or repression (immediate or mediate) on individual liberties due to unlawfulness or abuse of power. As part of the rule, the Code of Criminal Procedure clarifies the hypotheses concerning its pertinence and sets out the factual situations that shape what

3 is deemed to be illegal duress, something which can cause the filing of a petition for a writ of habeas corpus: Article 647. The writ of habeas corpus shall be granted whenever someone suffers or is about to suffer violence or illegal duress on their individual liberties, except in cases of disciplinary punishment. Article 648. It shall be considered illegal duress: I when there is no cause; (...) VI when the procedure is clearly null and void. In the present case, this heroic remedy is justified due to the clear unlawfulness perpetrated by the 13 th Federal Court of Curitiba Judge who denied the request filed by the Arrestee s Defense to produce evidence that was necessary and in their interest, that is, the testimony of a witness who is closely related to the subject matter of the motion for impeachment of document procedure, Mr. Rodrigo Tacla Duran. Although the actions described herein do not concern direct and immediate violation of the right to liberty, the understanding that the writ of habeas corpus is a means of controlling the lawfulness in the criminal prosecution is long based on our courts precedents, since illegal acts can compromise the Arrestee s individual liberties, something which is enough to grant the habeas corpus in order to have the defense s prerogatives respected and, indirectly, obviate prejudice that, due to their restriction, may unduly affect the Arrestee s liberties. 1 In this regard, here follows the opinion of ADA PELLEGRINI GRINOVER, ANTONIO MAGALHÃES GOMES FILHO, and ANTONIO SCARANCE FERNANDES 2 : 1 Federal Supreme Court. HC /PR. First Panel Justice Rapporteur Sepúlveda Pertence decided on. 08/10/ Grinover, A. P, Gomes Filho, A. M., Fernandes, A. M. (2009). Recursos no Processo Penal [Appeals in the Criminal Procedure]. 6th Ed. : Revista dos Tribunais, p. 272.

4 The Code of Criminal Procedure of 1941 (Article 647) refers to the imminence of violence or duress as a prerequisite for granting the habeas corpus as a preventive measure, but such limitation does not exist in our system since the Constitution of 1946, reason why the interlocutory relief is applicable even in cases in which the detention is only possible in a long-term such characteristics has allowed the habeas corpus to be, among ourselves, an extremely effective measure for controlling the lawfulness in all the stages of the criminal prosecution. ALBERTO ZACHARIAS TORON follows the same line of thought: It is indisputable that the Supreme Court had an almost ancestral concern about the lawfulness of the due process of law, which was subject to being corrected by the speedy means of the writ, actually having the advantage of avoiding its order. Indeed, with the possibility of correcting a nullity more quickly, the system becomes more functional. If we deny the use of the writ for such purpose, the correction of an occasional misconduct or abuse only through the ordinary appellate means can result in the nonexecution of the sentence, given, as a rule, the impossibility of redoing the procedure due to the course of time. 3 It is important to emphasize that the precedents of the Federal Supreme Court converge in a way that the writ of habeas corpus is not only applicable in order to avoid illegalities, duress or direct threat to the individual s liberties, but also to remove irreparable vices which, in a null procedure, affect the individual liberties. This is what we can see in Justice CARLOS VELLOSO S opinion on a paradigmatic decision on the use of such writ: It is not only the duress or direct threat to individual liberties that authorizes the filing of a petition for a writ of habeas corpus. The indirect threat or duress on individual liberties also justifies the filing for the constitutional guarantee provided for in Article 5, LXVIII, of the Federal Constitution. 4 Therefore, in view of the proven relevance and applicability of the present writ, as well as the defensive prejudice resulting from not producing this 3 Toron, A. Z. Habeas Corpus controle do devido processo legal: questões controvertidas e de processamento do writ [Habeas Corpus control of the due process of law: controversial and procedural issues regarding the writ] (2017). First Edition. : Revista dos Tribunais, p Federal Supreme Court - HC Justice Rapporteur Carlos Velloso. Second Panel. Decided on

5 fundamental parol evidence, which is vital to resolve said Motion for Impeachment of Document, the writ is necessary in order to stop the illegal constraint inflicted. II SUMMARY OF THE FACTS On (Doc. 01) 5, only two (02) business days before his interrogation, co-defendant and informant Marcelo Odebrecht, claiming to be reaffirming his commitment with the Court and the effectiveness of his plea bargain agreement, inserted documents in the record which he allegedly became aware of while preparing for his interrogation scheduled for 09/04/2017. On the same day ( ), the Federal Attorney s Office inserted documents in the record (Doc. 02) 6 some of them were the same Marcelo Odebrech did which were also taken from the alleged copy of the Drousys system, as well as of the Analysis Report of the Research and Analysis Counsel of the Office of the Attorney General of Paraná. In view of these new documents in the record and the reasonable suspicion concerning the material s trustworthiness, the Arrestee s Defense filed a Motion for Impeachment of Document 7 (Doc. 03) requesting that the documents inserted in the record of Criminal Proceeding No /PR be investigated. It should be noted that, after consecutive denials of the Defense s requests for access to the full copies of the alleged operating systems of Odebrecht Group such as the Drousys system, from which the documents that led to the Motion for Impeachment of Document were taken the Defendant Authority ordered, on his 5 Criminal Proceeding No /PR, event Criminal Proceeding No /PR, event Motion for Impeachment of Document No /PR, event 01.

6 own initiative, the expert examination on said systems, in a decision rendered in the record of the aforementioned Criminal Proceeding. The lower-court Judge mentioned (Doc. 04) 8 the need to await the expert report on the systems, to be carried out within the scope of the Criminal Proceeding, and ordered that the parties be notified to present new evidence relevant to the Motion for Impeachment of Document. Following the motion s procedure, the Arrestee requested the original copies of such documents as well as handwriting examination and documentoscopy on each questioned document (Doc. 05) 9. The parties were notified to present their statements on the possession of the original copies of the questioned documents, and all of them denied Odebrecht S/A, Marcelo Odebrecht, and the Federal Attorney s Office. At the time, the Federal Attorney s Office requested (Doc. 06) 10 that an official letter to be sent to the Revenue Office requesting information about Mateus Cláudio Gravina Baldassari. Access to his Income Tax Returns concerning 2012 and the following years was requested. They also requested news regarding the accession of Mateus Baldassari, as well as of corporations linked to him, to the Special Tax and Currency Exchange Regularization Regime. The Arrestee s Defense objected when faced with the Prosecution s inconvenient and impertinent request (Doc. 07) 11.However, the Defendant Authority granted their request under the flimsy claim that such 8 Motion for Impeachment of a Document No /PR, event Motion for Impeachment of a Document No.nº /PR, event Motion for Impeachment of a Document No /PR, event Motion for Impeachment of a Document No /PR, event 30.

7 circumstantial elements may help the judge assess the authenticity of the questioned documents (Doc. 08) 12. Said decision was challenged through an appeal against dilatory or abusive acts of the judge (Doc. 09) 13 filed by the Arrestee s Defense. By granting the production of evidence that is not related to the subject matter of the motion but to the issues in the original Criminal Proceeding, after the end of the evidentiary stage, the Defendant Authority disorderly inversed the procedures, benefiting the prosecution to the detriment of the defenses. In the same decision, the Defendant Authority notified the Arrestee s Defense ordering them to clarify if they would insist on the expert analysis on the questioned documents, indicating its object, the questions to be observed, and the examiner. The Defense gave a statement on after receiving such notice (Doc. 10) 14, in which they requested the testimonies of two witnesses before the expert examination on the documents, Mr. Paulo Sérgio da Rocha Soares and Mr. Rodrigo Tacla Duran. The Defendant Authority decided (Doc. 11) 15 in favor of hearing the testimony of Mr. Paulo Sérgio da Rocha Soares, which was carried out via video conference on In the opposite direction, the Defendant Authority decided to deny the request to examine Mr. Rodrigo Tacla Duran, according to the following grounds: 12 Motion for Impeachment of a Document No /PR, event Appeal against Dilatory or Abusive acts of the Judge No /PR, event Motion for Impeachment of a Document No /PR, event Motion for Impeachment of a Document No /PR, event 49.

8 As for the request to hear Rodrigo Tacla Duran, it has already been denied, according to a decision rendered on 08/29/2017 (event 994) regarding criminal proceeding no It is not appropriate to hear a witness who lives abroad in the final stage of the procedure, be it in case of substituting a witness who resides in Brazil, as it is the intention in the criminal proceeding, or in the stage of supplementary measures or motion for impeachment of document, since that hearing a witness abroad is always an expensive and lengthy procedure. In order to hear a witness who lives abroad, the law demands that the applicant proves that the witness s testimony is absolutely vital (Article 222-A of the Code of Criminal Procedure). Although there is circumstantial evidence that Rodrigo Tacla Duran provided services to Odebrecht s Structures Transactions Department, there is no evidence that proves he was specifically involved in the transactions that are the subject matter of this criminal proceeding, to be more specific, that he was involved in the alleged on-the-side payment of part of the price of the property at 178, Rua Haberbeck Brandão, /SP, registration no registered with the 14 th Register of Deeds of on behalf of former President Luiz Inácio Lula da Silva. If such evidence exists, the Defense failed to prove it, by not saying anything about it. As if that were not enough, Rodrigo Tacla Duran is charged with laundering about eighteen million dollars, this Court ordered his preventive detention, and he fled even before the detention was ordered, being hidden overseas. He is being prosecuted in criminal proceeding and extradition proceeding The words of a person who is involved in serious crimes, without any evidence to corroborate with the case are not trustworthy, as this Court and other Courts have decided over and over, even if they are momentarily trusted by negligent news reports and called by the Defense. The clear objective of Rodrigo Tacla Duran s public statements is, as he admitted, to remove this judge who ordered his preventive detention in the procedure in which he is liable, therefore he is not, in this context, trustworthy, so his testimony would not contribute at all for the investigation of the facts concerning this criminal proceeding, especially, as mentioned before, he did not even partake in the facts that are the subject matter of said criminal proceeding. As if that were not enough, the Defense, despite intending to hear the witness, did not even indicate, as it is their burden, his address abroad, making the

9 measure impossible. It is not appropriate for the Defense to transfer their burden to the Court. As for the suggestion of carrying out the testimony via video conference, this Court has no problem with that, but it is the responsibility of Luiz Inácio Lula da Silva s Defense to indicate how would that go and to provide for it, since this Court, obviously, has no contact with the fugitive. Therefore, the testimony of Rodrigo Tacla Duran in this case must be denied, since there is no evidence at all that he has any connection with the actions that are the subject matter of this criminal proceeding. (Emphasis added) Disagreeing with the decision, the Defense filed a motion for rehearing (Doc. 12) 16, adding the fact that said witness had given a relevant testimony at the JBS Joint Parliamentary Committee of Investigation (CPMI) on , directly addressing the documents which are the subject matter of the Motion for Impeachment of Document. They also requested that the full testimony entered the case s record. Even faced with such facts, the Defendant Authority decided to uphold his decision (Doc. 13) 17, claiming that there is no evidence that proves he was specifically involved in the transactions that are the subject matter of this criminal proceeding, to be more specific, that he was involved in the alleged on-the-side payment of part of the price of the property at 178, Rua Haberbeck Brandão, /SP, registration no registered with the 14 th Register of Deeds of on behalf of former President Luiz Inácio Lula da Silva.. The Defendant Authority seems to mistake the subject matters of the Criminal Proceeding and the Motion for Impeachment of Document, which specifically addresses the issue of the trustworthiness and integrity of the documentary evidence brought by informant Marcelo Odebrecht and by the Federal Attorney s Office. As to be shown herein, the witness, in his testimony given to the CPMI, talked 16 Motion for Impeachment of a Document No /PR, event Motion for Impeachment of a Document No /PR, event 61.

10 specifically about the subject matter of said motion, therefore, his testimony is highly relevant to resolve the case. Thus, the Defendant Authority s denial to hear a witness that is directly linked to the investigated facts is unjustified and illegal, and it disrespects the principles of a fair opportunity to be heard and of equality of arms between the parties. The writ must be granted, bringing this procedural violence against the Arrestee s rights to an end. III THE RELEVANCE OF MR. RODRIGO TACLA DURAN S TESTIMONY In his first decision (ref. to Doc. 11) 18 denying the request to hear Mr. Rodrigo Tacla Duran s testimony, the Defendant Authority attacked the creditworthiness of the witness, as well as the creditworthiness of the news report mentioned. He also claimed to think that the witness s goal is to remove this judge, therefore he is not creditworthy. It is relevant to reproduce this excerpt of the decision: The clear objective of Rodrigo Tacla Duran s public statements is, as he admitted, to remove this judge who ordered his preventive detention in the procedure in which he is liable, therefore he is not, in this context, trustworthy, so his testimony would not contribute at all for the investigation of the facts concerning this criminal proceeding, especially, as mentioned before, he did not even partake in the facts that are the subject matter of said criminal proceeding. However, the creditworthiness of a witness can only be assessed after hearing their testimony. To disqualify a witness a priori is not acceptable, especially for the given reasons. The fact that a person is accused of being involved in crimes cannot be used to prevent them from testifying as a witness of the facts to which they might be directly connected. The Defendant Authority himself has frequently 18 Motion for Impeachment of a Document No /PR, event 49.

11 claimed that crimes don t happen in heaven and that, sometimes, only some people who participated in the (correlated or connected) facts can make the truth about them clear. If that were not the case, the testimonies in plea bargain agreements and the testimonies of immunity seekers, which usually lack any evidence, should be dismissed, something which does not occur (to the contrary) in the cases pending or now final before the 13 th Federal Criminal Court of Curitiba. Moreover, the constitutional presumption of innocence principle, although being always a reason to fight for when it comes to Operation Car Wash, is still effective in our legal system Article 5, item LVII, of the Federal Constitution. Regarding the examination of witnesses, the Code of Criminal Procedure provides, in Article 202, that anyone can be a witness. FERNANDO DA COSTA TOURINHO FILHO: In this respect, it is relevant to bring to light the lesson given by The general principle adopted by the Criminal Procedure is that anyone can be a witness. Therefore, any person, regardless of age, gender, or nationality, can be a witness. Physical imperfections do not matter, and neither do the contingent states of unconsciousness. The person s social status and economic condition are not taken into account, and neither is the person s reputation or fame (...) (in Código de Processo Penal Comentado [Commented Code of Criminal Procedure], volume 1, 15th. Edition, Saraiva, p. 678 emphasis added). Code should also be noted: The rules in Articles 214, 207, and 208 of the aforementioned Article 214. Before the testimony begins, the parties may move for the impeachment of the witness or disqualification due to circumstances or defects that make them suspicious of bias or unworthy of credit. The judge shall

12 consign the motion for impeachment or disqualification and the witness s reply, but shall only remove the witness or not grant them the commitment in the cases Articles 207 and 208 provide for Article 207. The persons, who due to their function, ministry, office or profession must maintain secrecy, cannot testify, except in cases in which, upon being authorized by the interested parties, they wish to do so Article 208. The commitment of Article 203 shall not be granted to persons who are sick, intellectually disabled, or less than 14 years of age, and neither to the persons mentioned in Article 206. That is to say, the law exhaustingly lists the reasons for which a person can be exempt or not allowed to testify, none of them concern the case at issue, so much so that the judge did not even mention them when he denied the request. It is an exclusive list. Besides, with what evidence can the Defendant Authority claim that the news report he mentioned to the Defense was carelessly written? We should recall that the Judge placed great value on news pieces when he rendered his judgment of conviction in Criminal Case No /PR items 376, 377 and 412, for instance. Not anymore? Why? At the JBS Joint Parliamentary Committee of Investigation, at the Brazilian Congress, Mr. Rodrigo Tacla Duran gave an important testimony 19. Upon being questioned by the Representatives, in several moments he mentioned facts that directly influence the understanding regarding the circumstances that frame the subject matter of the present motion. It is timely to reproduce some excerpts of said testimony which prove how indispensable his testimony is: Representative Wadih Damous: Only to be clear, Mr. Duran, these documents which were included in the record of the procedure and 19 Available at: < >. 16 th JBS CPMI assembly on Accessed on

13 investigations, taken from this Drousys system, you claim that all these documents are false? Or only some of them are false? Just to make it clear. These documents were used as evidence to ground plea bargain agreements; they were used as evidence to convict people. Please, enlighten us. Rodrigo Tacla Duran: If all the documents are false, I don t know, because I m talking about those I had access to, which are the ones in the complaint against Michel Temer, because they mentioned my name and, for instance, were also filed by Odebrecht in investigation 4435, and which involve Representative Pedro Paulo and the former Mayor of Rio de Janeiro, Eduardo Paes. These statements are false and have already been examined. In the case of the complaint against Michel Temer, these statements prove that the system was tampered with. Since the system was tampered before, during, and after it was blocked, in my opinion, they are doctored. All the evidence that comes from this system is invalid. [...] Rodrigo Tacla Duran: Just so you understand, the bank system was also tampered with, so that one cannot pinpoint the source and destination of the funds, because the money laundering they did was carried out on several levels, but in Meinl Bank Antigua through internal transactions. These internal transactions were erased from the system in order to in a way that the recipient could not be identified. In fact, it is very unlikely that we can prove, through the Meinl Bank s system, which is the right that came from Odebrecht, that that was meant for a certain beneficiary.

14 [...] Representative Paulo Pimenta: [...]Could you please explain this connection between the bank and Odebrecht so we understand? Why do you say Odebrecht s bank, when you talk about the Meinl Bank? How did this transaction work? This relationship between Odebrecht and Meinl Bank? Rodrigo Tacla Duran: Well, the bank was bought, in the name of the six. Actually, it was bought in name of the four, but there were six partners. The ones who appeared as shareholders were Luiz França, Olivio Rodrigues, Marco Bilinski, and Vinicius Borin. Besides these four, there were Luis Eduardo da Rocha Soares and Fernando Migliaccio who, in spite of not showing up in the bank s documents, were also partners. The bank worked exclusively for Odebrecht. What wasn t Odebrecht, was linked to Odebrecht, but 99% of the transactions were the company s itself, because they bought it to that end. Dep. Paulo Pimenta: Meinl Bank is a bank in Antigua through which Odebrecht made a great deal of their transactions, right? Rodrigo Tacla Duran: Yes. I became aware of this information I m telling you precisely due to my work as a lawyer, defending, when I got this information from the six. Dep. Paulo Pimenta: I d just like to understand one thing. Who owned this bank? Sr. Rodrigo Tacla Duran: Odebrecht.

15 Representative Paulo Pimenta: Odebrecht itself owned this bank? Rodrigo Tacla Duran: Yes... part of it... the other part belonged to Austria bank. Representative Paulo Pimenta: Sorry? Rodrigo Tacla Duran: 50% belonged to Meinl Bank Austria. Representative Paulo Pimenta: Yes. But, it belonged to Odebrecht or it was assigned to Odebrecht executives? Rodrigo Tacla Duran: Six executives who worked there were middle men, who were there under Odebrecht s orders. Meinl Bank Austria didn t use the bank. Representative Paulo Pimenta: So, six Odebrecht executives took part in the acquisition of a bank in Antigua, by the part of this six was it theirs or was it Odebrecht s who owned the bank? That s what I want to understand. Rodrigo Tacla Duran: They bought it for Odebrecht to use. The bank. Now They also had their own businesses in there. Representative Paulo Pimenta: The bank statement filed by Odebrecht in your plea bargain statement, and used by the Federal Attorney s Office in the Meinl Bank complaints are statements of a bank whose owner is Odebrecht itself? Is that what you re saying?

16 Rodrigo Tacla Duran: Yes. I didn t make a plea bargain agreement, sir, the bank statements that were analyzed by an expert I presented to the committee are the statements... Representative Paulo Pimenta: What I m saying is: a great deal of the complaints is being made based on the Meinl Bank statements. Odebrecht s plea bargains... So, Odebrecht presented statements from a bank they own? Rodrigo Tacla Duran: Yes. Representative Paulo Pimenta: The same statements you claim to be altered, tampered with? The bank statements are false. Is this what you re saying? Rodrigo Tacla Duran: Exactly. More than owning the bank, Odebrecht owns the bank s computer system too. They controlled it. Representative Paulo Pimenta: So, can you prove that? Do you have the expert report on that? Rodrigo Tacla Duran: It has already been proved. Luis Eduardo s brother, Paulo Sergio da Rocha Soares, was responsible for the IT. He already declared to the Federal Police in writing. Actually, in the expert analysis I did and sent to the committee, there is the letter signed by him, in which he says that the equipment was seized in Switzerland and were kept in the same data center he helped the Federal Police identify which HD were the bank s and which were Odebrecht s; they were kept together, controlled by the same network administrator, Paulo Sérgio.

17 In view of such assertions, which directly address the questioned documents within the scope of this incidental procedure, how is it possible to claim that Mr. Rodrigo Tacla Duran s testimony in the record of said Motion for Impeachment of Document is not relevant to resolve the dispute? Besides, Mr. Rodrigo Tacla Duran confirmed to the Arrestee s Defense, in the presence of a Notary Public, to have relevant information with respect to the documents that are the subject matter of the Motion for Impeachment of a Document: Attorney Cristiano Zanin Martins: Actually, I was saying that we tried three times to hear you as a witness in a criminal proceeding in which former President Lula is a defendant. And our main objective, for which we called you to testify, was to provide explanation, to contribute for the examination of the facts, especially concerning the documents that were filed during the plea bargain agreement procedures of former Odebrecht executives and also the leniency agreement signed by the company. We filed a motion for impeachment of document in which the documents from Meinl Bank Antigua, among others, are the subject matter. So I d like to know if you are able to provide us with some explanations so the facts can be examined because we are going to insist on your testimony. In our opinion, it is necessary to examine the facts. So, I d like you, if possible, to tell us if you feel that you can testify as a witness especially in order to clarify the facts related to these documents. Mr. Rodrigo Tacla Duran: Just recapitulating a little because of the bad connection, you mean if I can assist when it comes to the documents concerning the Meinl Bank and the Drousys system?

18 Attorney Cristiano Zanin Martins: Yes. Exactly. These are the documents that are the subject matter of a motion for impeachment of document. Mr. Rodrigo Tacla Duran: If these documents pertain to the Drousys system, which was Odebrecht s intranet, and to Meinl Bank, the bank s system, per se, Meinl Bank, yes I can. Depending on the documents, of course. And the information related to that. [...] Attorney Cristiano Zanin Martins: Mr. Duran, as I said at the beginning, it s the first time we re talking and I could observe in your testimony at the JBS CPMI that there has been a situation of your family members being persecuted, it was even necessary that some of them moved abroad. I would like to know from you, in spite of this situation, if you would be willing to testify as a witness in criminal proceedings, as a witness that we, as former President Lula s defense, could call. Would you be willing to do that? Do you think you could contribute to the truthfulness of the facts? Mr. Rodrigo Tacla Duran: It broke up for a moment; if I am willing to testify at the court as a witness in former President Lula s case? Attorney Cristiano Zanin Martins: Actually, I m going to repeat it. I could notice in your testimony at the JBS CPMI that you even narrated that some of your family members were persecuted, there was even the need to move abroad, I mean, in spite of all this situation, would you be

19 willing to be heard as a witness in the criminal proceeding pending before the 13 th Federal Criminal Court of Curitiba? Mr. Rodrigo Tacla Duran: Yes, through video conference or a letter of request. Here in Spain, no problem at all. I was called as a witness regarding matters in Ecuador that I had no knowledge about, and I complied with it, explained that I didn t know anything, that I couldn t help, but in relation to your questions, I believe it s pertinent. As it can be seen, the statement of the Defendant Authority when he decided to uphold the denial (ref. doc. 13) 20 regarding the inexistence of any minimum evidence element that grounds his specific involvement in the operations which are the subject matter of the present criminal proceeding is baseless. Initially, as the dispute regarding the punitive claim present in the criminal proceeding (a broader dispute, which contains this motion) is not discussed in this incidental proceeding, but only the trustworthiness of the documents inserted in the record by the prosecution body and by the informant Marcelo Odebrecht (a more restricted dispute regarding the authenticity of the physical and virtual documents inserted in the case s record). Among these documents, there are payment orders carried out by Meinl Bank Antigua. The witness called has declared according to what is transcribed above that the documents issued by the aforementioned bank are not authentic, pointing out the manipulation of the systems of the bank and of the Structured Operations Sector on behalf of the Odebrecht Group s and its executives interests. It must be highlighted that several Odebrecht executives signed plea bargain agreements with the Federal Attorney s Office and are treated in a different manner by the prosecution body and by the Defendant Authority. The very company 20 Motion for Impeachment of Document No /PR, event 61.

20 also signed a leniency agreement. The documents pointed out by Mr. Tacla Duran as having been forged were used by the Odebrecht Group and its executives in their negotiations. There is, however, strong evidence that the documents presented in the scope of the original criminal proceeding are forged. It is exactly by reason of conducting such assessment that the Motion for Impeachment of Document exists. How is it possible for the Defendant Authority to anticipate the witness s testimony in the case s record in order to determine that he could not contribute in any way to the motion s resolution? It is relevant to emphasize, that Mr. Rodrigo Tacla Duran clarified that he has been heard as a witness in proceedings that are pending before several countries. Why does only the judge of the 13 th Federal Court of Curitiba place obstacles to his testimony? Lastly, it is important to emphasize that Mr. Rodrigo Tacla Duran affirmed that the Defendant Authority is aware of his address since a Letter of Request was issued by the very defendant authority, at the request of the Federal Attorney s Office in order to hear his testimony in Madrid, Spain: Mr. Rodrigo Tacla Duran: First of all, with all the due respect to the judge, as a lawyer, I would never put that aside, I answered to an extradition process, from beginning to end, I would attend all the hearings, complied with more than seven letters of request from different countries, and I could always be reached. My address in Spain is my family s address for over 20 years; it s on my ID that is present in my extradition process and that the 13 th Federal Criminal Court of Curitiba certainly has a copy of, as well as the Federal Attorney s Office. It comes

21 to the absurd point that on December 4, here in Madrid, the federal prosecutors from Paraná forwarded a letter of request to Spain in order to hear me, through which the Brazilian prosecutors Mr. Robson Pozzobon, Mr. Orlando Martello, I don t remember the third one on it, made the commitment to come to Madrid to hear my testimony, on December 4. I went to the Audiencia Nacional to comply with such letter of request from Brazil last week, December 4. However, the prosecutors did not come. Attorney Cristiano Zanin Martins: Thus, in other words, they not only know your home address in Madrid, but also called for a hearing with you. Sr. Rodrigo Tacla Duran: Of course they do, because they sent a letter of request. I complied with it and they didn t show up. It stands out that there is no interest in hearing this witness in the scope of Operation Car Wash, not because the clarifications and information that may be provided by Mr. Rodrigo Tacla Duran would be irrelevant, but for other reasons In fact, when the request to hear lawyer Tacla Durán was filed by the Federal Attorney s Office, the defendant authority granted it and issued the letter of request to Madrid. After becoming aware of the contents regarding the witness s testimony, the Car Wash Task Force decided not to attend his testimony and the defendant authority denied the requests the Defense filed in order to hear him. How can one justify that?

22 The illegal action taken against the Arrestee is an express denial of a fair hearing and directly influences in the result of the incidental proceeding, therefore in the result of the criminal proceeding. This is not the role of an impartial judge conducting a case, in accordance with the national legal system. There is no discretion related to the acceptance or not of the production of evidence by the judge. The judge s actions must be strictly in compliance with the law. IV THE LACK OF EQUALITY BEFORE THE LAWS REGARDING THE DEFENSE AND THE PROSECUTION The situation becomes even more serious when we consider the decisions rendered by the Defendant Authority in relation to the requests for production of evidence filed by the prosecution body. For instance, there is the Motion for Impeachment of Document No , which has the same nature. In the Motion for Impeachment of Document No , according to what was already mentioned above, the Federal Attorney s Office requested the sending of an official letter to the Federal Revenue Office in order to obtain tax data related to Mateus Baldassari and companies connected to him (ref. Doc. 07), not having been proved that the request had any relation to the case s subject matter. The judge granted (ref. Doc. 08) the request for the production of evidence with the following grounds: The Federal Attorney s Office requested in event 19, with clarification in event 29, the court order for the disclosure of tax records, since 2012, with respect to Mateus Cláudio Gravina Baldassari, Individual Taxpayer ID Number , to his companies, and to companies Jaumont Services Limited and Beluga Holdings.

23 The order to disclose the tax records from 2009 to 2011 related to Mateus Cláudio Gravina Baldassari was already granted, according to the decision of event 7 in proceeding and resulted in event 34 of that same proceeding. In event 34, annex 21 and annex 22, there is a reference concerning his alleged ownership of Jaumont Services Limited s shares, a foreign company. The information is relevant because of the suspicion that the Jaumont might be somehow related to company Beluga Holdings Holdings Ltd. and to the suspicion of the payment under the table of part of the value related to the purchase of the building located at Rua Haberbeck Brandão, especially in accordance with pages of Background 7/2017 present in event 999, annex 2, of criminal proceeding There is, therefore, good cause for the intended disclosure, besides; it is necessary to confirm or not the connection of Mateus Cláudio Gravina Baldassari to the supposed payment under the table. Therefore, it is the case for partially granting the request filed by the Federal Attorney s Office and order the disclosure of the tax records related to Mateus Cláudio Gravina Baldassari, Individual Taxpayer ID Number , and companies Jaumont Services Limited and Beluga Holdings Ltd., in the improbable expectation, regarding the later, that they have a Corporate Taxpayer Identification Number. In contrast to what Luiz Inácio Lula da Silva s Defense claimed (event 30), it is not a procedure extraneous to the motion for impeachment of a document, once such circumstances may assist the court in the assessment regarding the authenticity of the challenged documents. In other words, the Defendant Authority deems the information requested by the Federal Attorney s Office as circumstances and even so authorizes the production of evidence, affirming that it would assist the court in the assessment regarding the authenticity of the challenged documents. The witness called by the Arrestee s Defense directly evoked the case s subject matter. Even so, it would not be of any assistance for the judgment, according to the Judge. Why not?

24 Regarding the Motion for Impeachment of Document No , the Federal Attorney s Office requested the production of parol evidence through the testimony of Mr. Glaucos da Costamarques and Mr. João Muniz Leite (Doc. 14) 21. The Arrestee s Defense filed a motion for the denial of the request (Doc. 15) 22, in view of the invalidity of the evidence to be produced. The Defendant Authority, then, decided to grant (Doc. 16) 23 the testimonies of the witnesses requested by the prosecution body, according to the following grounds: As this Court has previously affirmed, there are doubts regarding a supposed misrepresentation on a document, concerning the adequacy of the expert analysis for the solution of the dispute. In any event, it is the case to grant the request for the supplementary interrogation of Glaucos da Costamarques for him to clarify the circumstances in which he signed the receipts, and also the interrogation of accountant João Muniz Leite. In spite of the arguments put forward by Luiz Inácio Lula da Silva s Defense, there is no legal provision that forbids the production of parol evidence in the scope of the motion for impeachment of a document. On the contrary, the very article 145 of the Code of Criminal Procedure, which regulates the incidental proceeding, expressly prescribes that the judge shall take the measures he/she deems necessary. Even though the expert analysis is the most common procedure in this kind of incidental proceeding, there are no restrictions regarding the production of other types of evidence, if the Judge deems them pertinent and necessary for the clarification of the matter. Strictly speaking, the expert analysis is not even the most appropriate one in case of misrepresentation on a document. In this manner, the Defense s claim has no grounds. 21 Motion for Impeachment of Document No , event Motion for Impeachment of Document No , event Motion for Impeachment of Document No , event 38.

25 With respect to the request for the acknowledgment of the preclusion concerning the type of expert analysis to be conducted, the request made by the Federal Attorney s Office for the deferment of the issue for after the production of parol evidence is reasonable, as it is necessary to clarify, through those who produced the documents, the circumstances of their production. Well, it is clear once again the different treatment given by the Defendant Authority to the requests filed by the Defense and the ones filed by the Prosecution. The witness indicated by the Arrestee presented a lot of circumstantial evidence that the documents presented by the informant Marcelo Odebrecht and by the prosecution body might have been forged, concerning the exact subject matter of the incidental proceeding. How is it possible that the Judge deems as irrelevant and unnecessary the witness s testimony for the clarification of the issue, otherwise by reason of subjective elements that do not correspond to the impartiality required of a judge? of treatment: NEREU JOSÉ GIACOMOLLI 24 wrote the following about the equality The demand of equality before the criminal procedural legislation, that is, the prohibition of a different treatment given to situations that are not different can be implied from Article 251 of the Code of Criminal (the judge shall be charged with the task of providing regularity to the proceeding). This regularity is provided through the use of legitimate criteria, with the purpose of preventing arbitrary acts. The requirement of equality of treatment as an element of the due process of law is grounded by the formal framework of the legislative provisions, but it also has a substantial content, verified within the procedural dynamics, as well as in decisions contents and effects [...]. It is in the reality of practice that the compliance with the due process of law can be verified. As it can be seen, the Defendant Authority gives a different treatment to the Defense and the Prosecution, favoring the latter and denying the first an effective opportunity to be heard. 24 Giacomolli, N. J. O devido processo penal: abordagem conforme a Constituição Federal e o Pacto de São José da Costa Rica [The due process of law: an approach according to the Federal Constitution and the Pact of San José 3 rd Edition reviewed e extended : Atlas, p. 449.

26 V REQUESTS Wherefore and in view of the record s contents, it is requested that this writ of habeas corpus be granted in order to Mr. Rodrigo Tacla Duran s testimony as a witness be heard in the scope of the Motion for Impeachment of Document No , through the service of notice to be conducted through a letter of request to Spain, to his home address, which is known by the Court of the 13 th Federal Criminal Court of Curitiba (Calle Acanto, 41, Las Rozas, Madri, Espanha), in compliance with the provisions of Article 222-A of the Code of Criminal Procedure, under the penalty of confirming the denial of a fair hearing, which is ensured by the Constitution and that affects the Arrestee s right to liberty. It is also requested that the digital media to be filed with a notary public IS inserted in the case s record, containing Mr. Rodrigo Tacla Duran s declarations, given to the Arrestee s Defense, pursuant to the terms of the notary public minutes. (Doc. 17). In case the incidental proceeding has already been decided at the moment this writ is considered, it is requested the nullity of the entirety of what has been processed, and the order for the conduction of Mr. Rodrigo Tacla Durán s testimony before a new decision is rendered. Lastly, it is requested that all the notifications and information related to the proceeding be on behalf of attorney Cristiano Zanin Martins, OAB/SP [Brazilian Bar Association/State of ] No , under the penalty of absolute nullity of the act.

27 Grant is respectfully requested, From (State of ) to Porto Alegre (State of Rio Grande do Sul), December 5, CRISTIANO ZANIN MARTINS OAB/SP VALESKA TEIXEIRA Z. MARTINS OAB/SP PEDRO H. VIANA MARTINEZ OAB/SP