Honorable Appellate Judge Chief of the Regional Federal Appellate Court of the Fourth

HONORABLE APPELLATE JUDGE CHIEF OF THE REGIONAL FEDERAL APPELLATE COURT OF THE FOURTH REGION – TRF4.

Reference: Request for Information

LUIZ INÁCIO LULA DA SILVA, Brazilian, widower, holder of Identity Card No. 4.343.648, enrolled with Individual Taxpayers Register (CPF/MF) under the No. 070.680.938-68, resident e domiciled at Av. Francisco Prestes Maia, 1.501, bloco 01, apartment 122, Bairro Santa Terezinha, São Bernardo do Campo (SP), Appellee in the record of Criminal Appeal No. 5046512-94.2016.4.04.7000 (doc. 2), pending before this Regional Court of Justice, respectfully comes before Your Honor, through his attorneys hereby subscribed (doc. 1), request that a certified copy of the following procedural situations be provided, for judicial purposes.

1. The record related to Criminal Proceeding No. 5046512-94.2016.4.04.7000 were sent to this Court of Justice and were filed on 08.23.2017 (doc. 3). On this same day, at 5:45 pm, that is, around six hours later, there was already a court orderinserted in the record notifying the Defense parties to present the appellate brief (Article 600, Paragraph 4, of the Code of Criminal Procedure – doc. 4).

2. The defense’s appellate brief was filed on 09.12.2017, at 9:02 p.m. The next day, at 11:46 a.m., the Federal Attorney’s Office was allowed to see the record, producing a statement on 10.06.2017 at 11:20 am (17 business days later).

3. On this same day 10.06.2017, at 11:47 a.m., that is, 27 minutes later, the record was sent to the Rapporteur, Appellate Judge João Pedro Gebran Neto.

4. On12.01.2017, at 2:16 p.m., after its processing, the case was taken under the advisement of the Reviewer, Appellate Judge Leandro Paulsen (doc. 3),less than 2 months after the presentation of the Legal Opinion presented by the Federal Attorney’s Office to the appellate court (counting the national holidays, it took a total of 36 business days for the analysis of the appellate brief and the appellee’s brief).

5. Even though no document has been entered in the consultation system of the Regional Federal Appellate Court of the Fourth Region (e-Proc), the forwarding of the case to the Reviewer makes it possible to affirm that the Rapporteur has already concluded his opinion[1]. Actually, such fact was disclosed to the press himself a couple of days ago…

6. Well,in view of the extraordinary speed reflected on the processing of the present case, and taking into account the necessity of the constitutional principle regarding the equal protection of the law to prevail, as well as the respect to the chronological order of the cases and the like, the Movant comes to request, with grounds on Law No. 12,527/2011 (Freedom of Information Act), that be certified what was found about the following situations:

(1) How many appellate briefs were pending decisions at this Regional Federal Court on 08.23.2017, when Criminal Appeal No. 5046512-94.2016.4.04.7000?

(2) The numbering and detailing of the list of appeal, alongside the chronological order of their acceptance at the aforementioned Appellate Court.

(3) How many of such appeals involved defendants at liberty?

(4) How many of such appeals were pending before the 8th Panel of the aforementioned Appellate Court?

(5) How many of such appeals were judged up to the present date?

7. The right to information is ensured by Constitution, in accordance with Article 5, XXXIII, of the Federal Constitution, that prescribes “all persons have the right to receive, from the public agencies, information of private interest to such persons, or of collective or general interest, which shall be provided within the period established by law, subject to liability, except for the information whose secrecy is essential to the security of society and of the State.”

In addition, it is resulted from the publicity of acts principle, which rules over the Government’s activity, as provided by the Federal Constitution:

“Article 37.The governmental entities and entities owned by the Government in anyof the powers of the Union, the states, the Federal District and the Municipalities shallobey the principles of lawfulness, impersonality, morality, publicity, and efficiency,and also the following:

[...]

Paragraph 3. The law shall regulate the forms of participation of users in governmentalentities and in entities owned by the Government, especially as regards:

[...]

II - the access of users to administrative records and to information aboutGovernment initiatives, with due regard for article 5, items X and XXXIII;

Furthermore, also according to the Federal Constitution:

“Article 216.The Brazilian cultural heritage consists of the assets of a material

and immaterial nature, taken individually or as a whole, which bear reference to the identity, action and memory of the various groups that form the Brazilian society,therein included:

[...]

Paragraph 2. It is incumbent upon the Government, in accordance with the law,to manage the keeping of the governmental documents and to make them available for consultation to whomever may need to do so.”

8. In this regard – and regulating these constitutional rights –, Law No. 12,527/2011, known as “Freedom of Information Act”, whose main provisions are reproduced below:

Article 1. This Law provides for the proceedings that shall be observed by the Federal Government, the States, the Federal District and Municipalities, in order to guarantee the access to information as provided for in item XXXIII of Article 5, item II, Paragraph 3 of Article 37, and Article 216, Paragraph 2 of the Federal Constitution.

Sole Paragraph. The following are under the regime of this Law:

I – government agencies that compose the direct administration of the Executive and Legislative Branches, including the Accounting Courts; the Judiciary and the Federal Attorney’s Office;

Article 3 The procedures provided by this Law intend to guarantee the fundamental right of access information and shall be performed according the basic principle of public administration and the following guidelines:

I – regard publicity as a general rule and secrecy as the exception;

[...]

IV – promote the development of the transparency culture within the government;

V – development of the social control of public the government.

Article 4. Given the purposes of this Law, one shall consider:

I –information: processed and unprocessed data that can be used in the production and sharing of knowledge, within any media, support or format;

Article 5.It is the duty of the State to guarantee the access to information, which shall be disclosed by means of objective and quick proceedings, in a transparent and clear manner, and in an easily understandable language.

Article 6. Government agencies and entities shall guarantee, in compliance to applicable specific rules and proceeding:

I – the transparent management of information, assuring broad access to public information and maximum disclosure;

Article 8. Regardless of requests, the government agencies and entities shall promote the disclosure of the information they either produce or keep, be it of collective or general interest, in a place of easy access within their jurisdiction.

Article 10. Any person is entitled to submit, by any legitimate means, a request for access to information to the government agencies and entities mentioned in Article 1 of this Law, and such request shall include the applicant’s identification and further specification of the requested information.

9. Finally, according to the precedents of our Federal Supreme Court:

"[...]there is no possible room for mystery in the political models that regard democracy. The new Brazilian political statute - which rejects the power that conceals and does not tolerate the power that conceals itself - has established the disclosure of acts and state activities as a constitutionally assured value, disciplining it, with express proviso for situations of public interest, among fundamental rights and guarantees.The Federal Constitution, upon establishing the individual and collective rights and duties (Article 5), expressed basic principle, whose understanding is essential for the democratic order to be characterized as a regime of visible power, or, in BOBBIO’s expressive lesson, as “an ideal model of the public government in public”. (Injunction Relief 284, RapporteurJustice Marco Aurélio, Appellate Decision Rapporteur: Justice Celso de Mello, Full Bench, decided on 11/22/1992, published on Court Register 06/26/1992 – emphasis added).

10. In view of the foregoing, we request that the information be given, through an appropriate certified copy, something which is a constitutional guarantee, and, in case the request is denied, we request that the reason for such denial be explained, as well as, if this is the case, the degree of secrecy rating (if extremely secret, secret, or private) according to Article 24, Paragraph 1 of Law No. 12,527/2011, the National Council of Justice is informed.

Grant is requested.

From São Paulo (State of São Paulo) to Porto Alegre (State of Rio Grande do Sul), December 5th, 2017.

[1] Also: