From the trial of confinement appeals in court, former president may be detained to serve a 12-year sentence and a month in prison
The defense of former President Luiz Inacio Lula da Silva filed, on Tuesday evening, the embargoes against the conviction of the Petista by the Federal Regional Court of the 4th Region ( TRF4 ) to 12 years and a month of imprisonment by the crimes of passive corruption and money laundering in the case of the Guarujá triplet. Lula’s lawyers had until 11:59 pm today to appeal. From the judgment of the embargoes, according to the decision of the 8th Class of the TRF4, the ex-president can be imprisoned to fulfill sentence. Lula tries, by means of preventive habeas corpus in the Superior Court of Justice ( STJ ) and the Federal Supreme Court ( STF ), to prevent this possibility.
In this process, the petitioner was convicted of receiving $ 2.2 million in OAS tuition, which includes donation and personalized retirement of Solaris Building Trial 164-A, on the Asturian beach of Guarujá. The money was written off from a “general tip box” that the contractor had with PT, managed by the businessman Léo Pinheiro, former president of OAS, and the former treasurer of the PT, João Vaccari Neto.
As the sentence imposed on the ex-president was the same in the votes of the judges João Pedro Gebran Neto , Leandro Paulsen and Victor dos Santos Laus , the only possibility of appeal of the PT to the court itself were the embargoes of declaration, used to question omissions, contradictions and obscure points in the sentence and usually takes up to a month to be judged. If the punishments had been different, or the sentence had been decided by 2 votes to 1, it would be possible to file for infringements, which usually take more time until a decision.
What Lula claims in the appeal
In 175 pages, the declaration embargoes filed by Lula’s lawyers indicate 38 omissions, 16 contradictions and five obscurities, that is, sections of difficult comprehension, in the ruling of the 8th Class of TRF4 in the Trial of the case of the Guarujá triplet. At the end of the document, defenders request that the motives for annulment be upheld or the acquittal of the former president be recognized.
“It is required that the present declaration attachments be known and provided for the purpose of remedying the omissions, contradictions and obscurities mentioned above and to correct the material errors raised, in the form of the law. Afterwards, by attributing to the clarifying infringing effects, the nullities mentioned above are recognized or, failing to do so, the acquittal of the Embargo [Lula] is acknowledged, under the terms hereof, “he argues.
Among the questions about the trial, the defense points out as obscure the thesis that Lula was commanding the corruption scheme in Petrobras through “mere appointment and maintenance of public agents” and that he would be guilty of not fighting the misdeeds in the state. “It seems incompatible to attribute to the Embarrassing position of command in the criminal scheme claiming that he possessed ‘science’ or by his ‘absence of action’ to make him cease, since they would be omissive conduct, while leadership presupposes manifestly commissive conduct. In other words, it does not rule by default, “the embargoes claim.
For the lawyers of the PT, there is also contradiction in the votes of the judges because the magistrates had considered that Lula would not be judged by the crime of criminal organization and later the condemned based on the affirmation that he commanded the petroleum, “which in practice , corresponds to saying that he was the leader of a criminal organization. “
The defense points out that Lula is investigated in the STF in an investigation that purports to establish a criminal organization and, therefore, the practice of the crime could not be considered in the decision of TRF4. “In short, it was the Embargoe wrongly condemned, for the ‘whole of the work’, in the complete misapplication of the Theory of the Domain of the Fact,” argues the defense.
Another obscurity pointed out by Lula’s lawyers is the lack of proof of the “unquestionable” illicit origin of the money used in the reserve and the reforms of the triplet in Guarujá, pointed out in the judgment. For the defenders, the judges did not make clear what evidence they used to reach the conclusion. The defense contends that the only element presented in the ruling on the existence of a general tip account between OAS and PT is the testimony of Léo Pinheiro, who is also guilty in the case and, in the assessment of the lawyers, did not prove his allegations.
Still according to the embargoes of Lula’s declaration, there is a contradiction in the fact that TRF4 has recognized that the former president never owned the right of the triplet, but have condemned him for the crime of passive corruption, which presupposes the receipt of an advantage improper. For the lawyers, the judges condemned the PT for the fact that the property was “reserved” to him.
Regarding the money laundering offense, the defense alleges that the Court’s 8th Panel judgment was omitted because it allegedly did not indicate precisely the conduct of the former president that would evidence the crime. The judges, according to the lawyers, only treated as a washing the hidden form through which the tip had been received, that is, a property, and condemned Lula without having practiced “any conduct that has contributed to the crime in discussion “.
Reaffirming the argument that the PT was not owner of the property, defenders affirm that it is “impossible to ‘wash’ what is not under the agent’s domain.”
By questioning how 12-year and one-month sentences were calculated, increasing the 9-year and 6-month prison sentence imposed by Sergio Moro in the lower court, lawyers counter the suitors’ argument that Lula’s role as president and ex-president undermine the political process and Brazilian democracy.
“Now, where is the proof of this commitment? Can the personal dissatisfaction of magistrates with the political scenario raise the penalty of a convicted person? Can he respond, bodily, to the discrediting of certain people in the political system? It is known that not, “criticizes the defense, which also points out that the increase of the sentence has not been detailed.
Read here the whole of the embargoes of Lula’s defense statement.
Next steps in TRF4
After receiving the statement attachments, Lava Jato’s Rapporteur on TRF4, Gebran Neto, will analyze the defense’s allegations, prepare his vote and take him to vote in the 8th Panel of the court. There is no deadline for the decision, and it is Gebran who sets the date of the trial. Judge Leandro Paulsen, on vacation since January 29, is being replaced by federal judge César Bochenek . Already Victor Laus will start his vacation on Wednesday 21 and will be replaced by also federal judge Nivaldo Brunoni.
Once the TRF4 ruling has been published with the decision on the confiscation pleadings, lawyers will have up to 12 days to file new appeals on the new decision (up to 10 days for subpoena, plus two days to appeal).