HONORABLE MR.JOÃO PEDRO GEBRAN NETO, FEDERAL APPELLATE JUDGE RAPPORTEUROF THE REGIONAL FEDERAL COURT OF THE FOURTH REGION – TRF4.
Concerning: Petition for a Writ of MandamusNo. 5039007-66.2017.4.04.0000
LUIZ INÁCIO LULA DA SILVA, already identified in the record of the aforementioned Action for a Writ of Mandamus, of which he is the Petitioner and which is pending before this Regional Court, through his lawyers, undersigned, based on Articles 282 and 283 of this Court’s Internal Regulations, along with other applicable laws, respectfully files this
INTERNAL INTERLOCUTORY APPEAL
against the single-judge decision rendered by thisRapporteur, who did notentertain saidAction for a Writ of Mandamus, based on the facts and legal grounds to be explained herein.
– I –
APPILICABILITY AND TIMELINESSOF THIS APPEAL
This Internal Interlocutory Appeal rises against the single-judge decision which did not entertain a petition for a writ of mandamus as provided in Articles 282 and 283 of this Court’s Internal Regulations:
Article 282. The party which is deemed appealed by decision of the Chief Judge, Judicial District, Panel, or Rapporteur, except in the cases which are prohibited by this Regulation, shall be able to request, within five days, that the decision be presented, so that the Full Court give their opinion, confirming it or overruling it.
(...)
Article 283. The internal interlocutory appeal shall be submitted to the person who rendered the decisionthat shall be able to reconsider or present it to the respective Full Court, in the first trial after the end of the term provided by Article 119, I, of these Regulations, and their opinion shall also be considered.(Emphasis added)
Therefore, since the purpose of this internal interlocutory appeal is to request that this decision rendered by a single judge, the Rapporteur of the Action for a Writ of Mandamus be overruled and sent to the collective body of competent jurisdiction –in this case, the 8th Panel of the Regional Federal Court of the 4th region – this internal interlocutory appeal is entirely appropriate and suitable.
This challenge is also timelyaccording to the provisions in the aforementioned Article 282, which sets out a five-day term for the internal interlocutory appeal to be filed, starting from the day of the decision notice. Therefore, the final day to file it was set to11.06.2017, term which has not ended yet. Thus, the appeal istimely.
– II –
SUMMARY OF THE CASE
Said Petition for a Writ of Mandamus was filed against theclearly illegal and harmful decision against a clear legal right of the Appellant, decision which was rendered on 07.14.2017 by the Federal Judge of the 13th Federal Criminal Court of Curitiba/PR. Such decision orderedall the Appellant’s assets to be frozen, with no good cause and in discordance with the due process of law.
The Appellant proved (event 01) through documentary evidence: (i) the Prosecution’s lack of standing to request the attachment, since the two hypothesis provided in Article 142 of the Code of Criminal Procedure are not the case; (ii) the confusion between award of damages and the proceed of the crime, with the undue enforcement of Article 91, Paragraphs 1 and 2, of the Criminal Code; (iii) that it is impossible to order sequestration of preexistent assets, purchased with money from lawfulsources which are not related at all to the crimes the Appellant was charged with; and (iv) the lack of any sign of dissipation of assets.
The request’s lack of timeliness was also clearly proved. The request for the provisional remedy was filed by the Federal Attorney’s Office in October 2016, and it was only evaluated after 9 months!
Actually, the request for the provisional remedy, accessory as it is, was evaluated and is being processed by a lower-court judge who had already exhausted his jurisdiction over the case when he rendered his decision in the criminal case to which the provisional remedy is bound.
After this constitutional remedy was filed, we requested: (i) as a preliminary matter, the suspension of the effects of the decision rendered by the defendant authority, until the final judgment on the merits of said mandamus, and, as a result, that the frozen assets and values be available again; and (ii) regarding the merits, that, as a result of the writ, the preliminary matter be granted, and the unlawfulness of the appealed decision be acknowledged for violating the Appellant’s clear legal right of having the due process of law respected and the decisions rendered by an authority of competent jurisdiction and in the right procedural moment, ordering, as a result, the lift of all the assurance measures imposed by the defendant authority, re-establishing his access to his properties and values.
On 07.20.2017, the defendant authority rendered another decision, this time ordering that the frozen amount be transferred, through Bacenjud, to a judicial account bound to the original record (case No. 5050758-36.2016.4.04.7000). The Appellantthen filed an amendment to the petition (event 02)for said mandamus, addition which proved once and for all the judge’s lack of competent jurisdictionover said measure, once the provisional attachment turns into levy, a typical provisional measure of the foreclosure stage, which only a civil court can order (Article 63 of the Code of Criminal Procedure).
It was emphasized therein that the measure is illegal for actually affecting the necessary means for the Appellant’slivelihood.
Your Honor denied the requested injunction (event 04) and, in the same moment, requested information to the defendant authority. Such information was provided in event 08 and the Prosecution’s opinion in event 12.
In view of these statements, the Defense filed a petition (event 15) reasserting the points in the complaint and refuting all the arguments raised by the Federal Attorney’s Office, as well as the defendant judge’s explanations.
Your Honor then ordered further information to be provided to the defendant authority concerning the processing of assurance measures in trial courts and indicating the possible harm this writ of mandamus can cause in case it is processed by a lower court.
The information was provided by the defendant authority (event 20). Then, it was seen by theAppellant who reaffirmed the previous arguments and defended the examination of the merits of said petition for a writ of mandamus by the Panel of competent jurisdiction. Afterward, the Federal Attorney’s Office issued an opinion (event 28) in favor of denying the petition for a writ of mandamus.
Then, Your Honor rendered a single-judge decision (event 30), deciding not to entertain the petition for a writ of mandamus supposedly according to Article 38, Paragraph 2, item II, of this Court’s Internal Regulations, for reasons based on findings of fact and conclusions of law to be, respectfully, challenged herein.
This is the summary of the case. We shall move on to what is timely.
– III –
REASONS TO REVERSE THE APPEALED DECISION
The decision of the Appellate Judge was based on the following grounds: (i) the challenged act was not unlawful, and it did not show a violation of the Appellant’s clear legal right; (ii)allegedly, it is not appropriate to file for a writ of mandamussince there are alternative appeals after the final decision is rendered by the lower-court judge; and (iii)if this Court were to evaluate the petition for a writ of mandamus, this wouldresult in exorbitance of jurisdiction.
The grounds Your Honor presented will be confronted in order to demonstrate the need to reverse the appealed decision, and, as a consequence, the need to entertain the petition for a Writ of Mandamus and grant it afterward.
– III.1 –
UNLAWFULNESSES AND ABUSES OF THE CHALLENGED ACT
The abuse and unlawfulness in the decision rendered by the trial court judge ordering the Appellant’s assets to be frozen is perfectly clear.
Initially, we must emphasize the huge time gap between the Prosecution’s request and the defendant authority’s decision allowing the Appellant’s assets to be unlawfully frozen. The Prosecution’s request was filed on 10.04.2016 (event 01, exhibit 05), and the defendant judge only evaluated it on 07.14.2017 (event 01, exhibit 03). This demonstrates the complete lack oftiming of the granted request, an essential element when it comes to provisional remedies.
This gap in time leads us to the conclusion that the judge “saved” the action for a provisional remedyto be evaluated at the time he deemed most convenient, granting it over nine (9) months later.
Besides this inexplicable time gap, the action for provisional remedy was analyzed after the decision on the respective criminal proceeding (5046512-94.2016.4.04.7000/PR) was rendered, act which exhausted the defendant authority’s competent jurisdiction over the proceeding. Also, there was no opportunity for the Defense to make a statement before the assurance measures were ordered, even with such amount of time between the request and when it was granted.
Your Honor declared,in the now appealed decision:
“The sequestration/attachment was justified and grounded, aiming at safeguarding assets and rights deemed as result or product of crime, as well as guarantee the compensation for the harm caused by the criminal activity.”
With all due respect, this is not what one understands when analyzing the procedure, according to what has been well pointed out by the Defense in their statements during the writ of mandamus process (events 01, 02, 15, and 24).
The very “double purpose” the defendant authority pointed out, and Your Honor reaffirmed, proves the unlawfulness in the decision.Will the same assets be frozen to comply with measures of different nature, which must be distinctively motivated?
The lower-court judge and the Federal Attorney’s Office – deliberately or not – confuse the result or product of the alleged crime with the amount of damages,trying to justify the unfair assurance measures filed against the Appellant.
It is important to emphasize now the lack of grounds to order the assurance measures, without any evidence of possibledissipation of assets by the Appellant, which were only based on the Federal Attorney’s Office prosecution’s inferences.
As a matter of fact, the Federal Attorney’s Office did not prove any actual risk of dissipation of the Appellant’s assets, something which is essential for the enforcement of real provisional remedies.
Moreover, the challenged actis clearly disproportional, affecting all of the Appellant’s personal and real properties, even those acquired long before the investigation – the unlawfulness and abuse on the part of the defendant authority are noticeable.
On the other hand, it is necessary to mention herein Article 5, Item LIII, of the Federal Constitution, according to which “nobody shall be prosecuted or sentenced by anyone other than the authority of competent jurisdiction”.
In this case, as demonstrated above, the lack of standing of the Federal Attorney’s Office to request the remedies granted by the defendant authority is clear.
The challenged act ordered the freezing of financial assets that were saved by financial institutions in the name of the Appellant.
The defendant authority made use of the attachment known asattachment of subsidiary personal assets.In which leviable personal properties are retained – in this case, financial assets – aiming at compensating the damage, intending to avoid that the assets be dissipated, after verifying that the defendant does not own real properties of enough value[1].
Such kind of attachment is provided for in Article 137 of the Code of Criminal Procedure:
Article 137.If the liable party does not own real property or the real property they own is not worth sufficient amount of money, leviable properties shall be attached, according to the terms of the legal mortgage of the property.
Article 144 of the same law provides:
Article 144.The interested party or, in cases provided in Article 142, the Federal Attorney’s Office, shall request with the civil court, against the civilly liable party, the measures provided in Articles 134, 136, and 137. (Emphasis added)
Therefore, the law provides that such measures shall be filed with the civil court and that the Federal Attorney’s Office shall only request them in accordance with Article 142 of the Code of Criminal Procedure.
It is proper to emphasize what is in said provision:
Article 142. The Federal Attorney’s Office shall be responsible for promoting said provisions set out in Articles 134 and 137, should it be in the interest of the Tax Authority, or if the victim is poor and requests it. (Emphasis added)
However, according to the prosecution’s narrative, which was accepted by the defendant authority, the victim of the crimes investigated in Criminal Proceeding No. 5046512-94.2016.4.04.7000/PR is allegedly Petrobras, a company, that is actually an Assistant to the Prosecution. Therefore, it is the only one with standing to request said attachment in order to guarantee the part of the judgment which – objectionably – established the “minimum damages” of R$ 16 million, as long as, evidently, the legal prerequisites were there, something which does not occur in this case[2].
Note that, this is not the case to apply the hypothesis in Article 142 of the Code of Criminal Procedure argued by the Federal Attorney’s Office, since the alleged victim is a government controlled company – a legal entity governed by private law – and, therefore, does not comply with the concept of Tax Authority:
“Evidently, the government controlled companies and the state-owned companies do not fall into the category of Tax Authority. Although being part of the Government, they are not legal entities governed by public law, they are legal entities governed by private law, which are subject to the private law regulations. Thus, when we mention Tax Authorities, government controlled companies and state-owned companies are not included in this definition, because they respond to the regulations concerning legal entities governed by private law.”[3]
In view of what is in the law, how is it possible not to see the explicit violation of the Appellant’s clear legal rightwhen a measure requested by a party without standing is granted? Therefore, from the outset, the defendant authority should have denied the request.
Moreover, if the Prosecution’s obvious lack of standing to request the measure were not enough, a more thorough analysis shows that the defendant authority clearly incurred in contradiction by ordering it.
This is because the defendant Judge, in his decision regarding the motion for clarification filed by the Defense, admitted[4] — something which has always been stated by the Defense – that:
“This Court has never stated, either in the judgment or elsewhere, that the amounts obtained by Construtora OAS in the contracts with Petrobras were used to make undue payments to the former President.
As a matter of fact, during this procedure, this Court, by denying unnecessary expert examinations the Defense requested in order to track the source of the funds, had already made it clear that there was no correlation (items 198-199).
Neither corruption nor money laundering, which derives from corruption, require or required that the amounts paid or concealed came specifically from Petrobras contracts.”
That is to say, the lower-court judge made it clear, exactly like the Defense has been stating, we respectfully repeat, that the Appellant did not receive any amount of money stemming from contracts signed by Petrobras.
That is incompatible with the grounds used by the same judge to freeze the Appellant’s assets, since the grounds upon which the measures were granted concern the need to compensate the oil company (Petrobras).
Well, if the Appellant did not receive advantage in the form of any amount of money coming from contracts signed by Petrobras and OAS – something which cannot be discussed and the very defendant judge admitted – how can his assets be frozen for future compensation?
But that is not all.
After the filing of said action for a writ of mandamus, in view of the illegal freezing of assets, the defendant authority rendered another decision (event 02, exhibit 02), going against the national legal regulations once again.
He ordered the transfer of the frozen amounts, through Bacenjud, to a judicial account bound to the record (case no. 5050758-36.2016.4.04.7000).
Article 144, mentioned above, already provides that the requests concerning the kind of attachment in Article 137, both of the Code of Criminal Procedure, should be carried out before the civil court. The defendant authority did not just ignore such rule; he also expanded the violation by carrying on with the new decision against the Appellant.
Thus, the attachment of subsidiary personal assetswas turned into levy, once the asset liability was restricted to the constricted amounts and removed the transferred amounts from the Appellant. According to Article 839 of the Code of Civil Procedure:
Article 839. The levy shall take place upon the attachment and the deposit of assets (...).
In its turn, the levy is the first enforceable expropriation action over the asset of a debtor, that is, the typical provisional remedy in the foreclosure stage. Thus, it is evident that such transaction consists in “on-line levy” of the Appellant’s financial assets, found in his bank accounts, through Bacenjud, thus making use of a means used to guarantee amounts that are being foreclosed: