130 140 hc indeferimento de provas 30 01 17 ev

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

HONORABLE JUSTICE CHAIRMAN OF THE REGIONAL FEDERAL APPELLATE COURT OF THE 4th REGION.

"An injustice to one is a threat made to all". (Montesquieu)

ROBERTO TEIXEIRA, Brazilian, married, attorney-at-law, registered with the Brazilian Bar Association, São Paulo chapter, under No 22.823, CRISTIANO ZANIN MARTINS, Brazilian, married, attorney-at-law, registered with the Brazilian Bar Association, São Paulo chapter, under No 172.730, both with offices at at Rua Padre João Manoel, 755, 19 th floor, Jardim Paulista, Zip Code 01411-001, São Paulo/SP, JOSÉ ROBERTO BATOCHIO, Brazilian, married, registered with the Brazilian Bar Association, São Paulo chapter, under No 20.685, with office at Avenida Paulista, 1471, 16th floor, São Paulo/SP and JUAREZ CIRINO DOS SANTOS, registered with the Brazilian Bar Association, Paraná chapter, under No 3.374, with office at Av. Cândido de Abreu, 651 – 1 st floor – Centro Cívico, Curitiba/PR, respectfully comes before Your Honor, as provided for in Article 5, LXVIII, and 105, I, “c”, both from the Federal Constitution, Articles 647, 648, item I, of the Code of Criminal Procedure and other applicable rules, to file this writ of HABEAS CORPUS

in favor of LUIZ INÁCIO LULA DA SILVA, Brazilian, married, holder of the Identity Card (RG) No 4.343.648, registered with the Individual São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

Taxpayer Register (CPF/MF) under No 070.680.938-68, with address at Av. Francisco Prestes Maia, 1501, bloco 01, apartment 122, Bairro Santa Terezinha, São Bernardo do Campo (SP) and MARISA LETICIA LULA DA SILVA, Brazilian, married, holder of the Identity Card (RG) No 6.481.443, registered with the Individual Taxpayer Register (CPF/MF) under No 218.950.438-40, with address at Av. Francisco Prestes Maia, 1501, bloco 01, apartment 122, Bairro Santa Terezinha, São Bernardo do Campo (SP), against the illegal acts performed by the as Defendant authority, the Judge of the 13th Federal Criminal Court of the Judicial District of Curitiba/PR, Sérgio Fernando Moro, included in the records of the Criminal Proceeding No. 5046512-94.2016.4.04.7000/PR, constituting criminal coercion inflicted onto the Arrestees, for the reasons explained below.

–I– APPLICABILITY

The constitutional guarantee listed in Article 5, LXVIII, of the Constitution, describes the habeas corpus as the legal instrument of concretization of its judicial protection against the practice of illegal acts.

The Constitution is clear when it indicates the applicability of this mandamus “whenever one suffers or feels threatened with suffering violence or restraint in one’s movement, by illegal acts or abuse of power.”

In this particular case, the factual scenario described in the records and which constitutes criminal coercion contains is fully provided for in Article 647 and in item I of Article 648 of the Brazilian Code of Criminal Procedure [abbreviated along this document as “CPP”, acronym in Portuguese], verbis: Article 647. Habeas corpus shall be granted whenever someone suffers or is about to suffer violence or criminal coercion to restrain their freedom to move, except in cases of disciplinary punishment.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

Article. 648. Coercion shall be deemed illegal: I – when good cause is shown;(our remarks)

Regarding the subject, the substantial doctrine of AURY LOPES JR AURY LOPES JR1, is pertinent, for whom “Coercion is illegal when it does not have legitimate legal grounds, when it lacks motive, not being provided for in the law (...) If there is no factual support - tatbestand - for the incidence of legal rule of criminal law or private law (civil commitment for enforcement of child support), there is no good cause. The factual support contained in the imputation or criminal action that justifies the act must be supported by reasonable evidence”.

“The scope of the writ is not confined only to cases of arrest, it can also be used as an instrument for collateral attack, allowing it to be an alternative route of attack to judicial acts, and even against an unappealable final judgment.” (our remarks)

In the present case, the Defendant authority arbitrarily denied the production of expert, documentary and testimonial evidence, timely requested by the Defense of the Arrestees (cf. Response to Prosecution, event 85 of those records).

The aforementioned decisum constitutes a serious criminal coercion, as the production of relevant and useful evidence by a Defendant in a criminal proceeding constitutes the most essential and undeniable right of defense, guaranteed to us by the Constitution: "The fundamental right to evidence in the proceeding comprises the possibility of either the prosecution or the defense indicating the sources of evidence and require their incorporation in the proceedings."2 (our remarks)

In this regard, the judicial precedents are unisonous, including those of Superior Courts, concerning the applicability of the habeas corpus in case of unlawful denial of production of evidence. This is verified in the example precedents below: 1 Aury Lopes Jr. Direito Processual Penal. 12th ed. 2015. pp. 1113/1114 and 1120.

2 Giacomolli, Nereu José. O devido Processo Penal. São Paulo: Atlas; 2014. p. 161.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

HEADNOTE: “HABEAS CORPUS” – DISMISSAL OF THE APPEAL – EXPERT EVIDENCE – REQUEST FOR DOCUMENT DENIED (MENTAL HEALTH REPORT) - ALLEGED DENIAL OF THE RIGHT TO BE HEARD – NONCOMPLIANCE WITH THE ADVERSARY PRINCIPLE – UNFAIR COERCION CHARACTERIZED – REQUEST GRANTED, IN PART, TO DECONSTRUCT THE CRIMINAL DECISION OF CONVICTION, IN ORDER TO DETERMINE THE REOPENING OF THE EVIDENTIARY STAGE. (STF [Federal Supreme Court], HC 81207, Rapporteur: Judge CELSO DE MELLO, Second Panel, judged on March 28, 2002, ELECTRONIC APPELLATE DECISION DJe-148 DIVULG 07-31-2013 PUBLIC 08-01-2013) -----------------------------------------------------------------------------------------------PROCEDURAL CRIMINAL. ORDINARY APPEAL ON WRIT OF MANDAMUS. INAPPLICABILITY. MATTER OF HABEAS CORPUS. DRUG TRAFFIC AND PROHIBITED OR RESTRICTED USE OF AMMUNITION. ABSENCE OF FOUNDATION OF THE DECISION THAT DID NOT GRANT A SUMMARY DISMISSAL OF THE APPELLANT. SUFFICIENT FOUNDATION. DENIAL OF EVIDENCE. DENIAL OF THE RIGHT TO BE HEARD. NON OCURRENCE. ORDINARY APPEAL DENIED. I – According to the terms of Article 5, item LXIX, of the Constitution, a writ of mandamus is only applicable to protect a liquidated and certain right not sustained by habeas corpus or habeas data.

II - The appropriate means to challenge the decision that received the information, that did not grant the summary dismissal of the appellant and denied the production of evidence by the defense is the habeas corpus. And, since patent illegality was not observed in the criticized act, it is impractical to grant writ of review. (Precedents).

III - It is known that the procedural reform carried out in 2008 allowed the court to grant summary dismissal of the Defendant whenever it is verified: i) the manifest existence of defense of lawfulness; ii) the manifest existence of exculpatory defense of the actor, except for criminal incapacity; iii) the fact narrated does not constitute a crime or iv) the actor’s punishability is terminated.

Also, as recommended by the notable legal scholarship, after the defense’s allegations, one may review the presence of the conditions of the case and procedural requirements.

IV - Thus, the new regulation of the matter lead to the conclusion that, as the hypotheses of summary dismissal are not verified, we must proceed with the case, without any further considerations, defining a date for the hearing to be held, under the penalty of constituting anticipation of the judicial relief, without the production of evidence submitted to adversary testing and the right to a fair hearing.

V - The Court of first instance presented the reasons for the refutation of each evidence required in the defense to the criminal complaint, claiming, according to the text, the need for issuing an official letter to the Police requesting it to answer some questions, as such could be done at trial, as well as the mobile phones seized could have already be submitted to expert investigation, while

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

there is no mention to the telephone interception in the records, what dismisses the allegation of denial of the right to be heard.

Ordinary Appeal denied.

(STJ, RMS 47.774/SP, Justice Rapporteur FELIX FISCHER, FIFTH PANEL, judged on April 26, 2016, DJe 05/04/2016) -----------------------------------------------------------------------------------------------"CONSTITUTIONAL. PROCEDURAL CRIMINAL. HABEAS CORPUS. EXPERT EVIDENCE. RELEVANCE TO INVESTIGATION OF REAL TRUTH. OMISSION. DENIAL OF THE RIGHT TO BE HEARD. NULLITY OF THE CASE. - The Brazilian Constitution, on the provisions for democratic rights, highlighted the adversary principle and the right to a fair hearing.

- The case must be declared null in the event of clear omission to carry out expert evidence in documents, as such evidence is essential for the defense in the investigation of the real truth.

- Habeas Corpus granted." (STJ, HC No 16.805/RJ, Justice Rapporteur Vicente Leal, Sixth Panel, DJU of 06.17.2002) -----------------------------------------------------------------------------------------------“CONSTITUTIONAL. PROCEDURAL CRIMINAL. HABEAS CORPUS. PRODUCTION OF EVIDENCE. DENIAL OF EVIDENCE. PRINCIPLE OF FAIR HEARING. VIOLATION – In the scope of criminal proceedings, the evidence required at the stage of written claims (Code of Criminal Procedure, Article 395), provided that they are admitted in law and relevant to the materiality and authorship of the criminal act, cannot be rejected by the Judge, under penalty of disrespect of the right to a fair hearing and adversary principle. – A decision is considered as criminal coercion, subject to reparation through habeas corpus when it denies the testimony of witness chosen by the defense by the mere fact that the witness lives abroad. – Habeas corpus granted.” (STJ, 6th panel, HC No 9.253-PB, Justice Rapporteur VICENTE LEAL, J. 10.07.1999, DJ 03.05.2001, p. 237)

Likewise, this Regional Appellate Court of the 4th Region has this same understanding: CRIMINAL PROCEDURE. HABEAS CORPUS. PRESENTATION OF WITNESSES. PREROGATIVE OF THE PARTIES. WITNESSES DOMICILED ABROAD. DENIAL OF THE HEARING. DENIAL OF THE RIGHT TO BE HEARD. The legal scholarship and judicial precedents are unisonous in regards to the right of the witness evidence being one of the main characteristics of fair hearing, guaranteed by the constitution, and which cannot be denied (usually on the grounds that the witnesses presented live abroad) under penalty of absolute nullity of the case. It is not for the Judge to evaluate whether the witnesses presented by the Defendant are important or not for solving the case. (HC - 2005.04.01.048112-4/RS, Federal Appellate Judge PAULO AFONSO BRUM VAZ, DJU 12.07.2005).

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

----------------------------------------------------------------------------------------------HABEAS CORPUS. EXPERT EVIDENCE. DILIGENCE REQUIRED PURSUANT TO ARTICLE 499 OF THE CODE OF CRIMINAL PROCEDURE. LIMITATION ON THE DEFENSE’S HYPOTHESIS. DENIAL OF THE RIGHT TO BE HEARD. WRIT GRANTED. l. The denial of the diligence required may apply in limitation on the defense’s hypothesis to be presented in the final arguments, occasioning a possible nullity of the case due to the denial of the right to be heard. 2. In the event of a dubious event regarding the dispensability of the expert evidence required by the defense, the abovementioned diligence must apply, in compliance with the principles of the right to a fair hearing and the search for the real truth. 3. Writ granted. (TRF4, HC 2000.04.01.124258-9, FIRST PANEL, Rapporteur ELLEN GRACIE NORTHFLEET, DJ 12/13/2000)

Therefore, as the applicability of this writ is patent, the writ must be granted so as to cease the criminal coercion suffered by the Arrestees, for the reasons of fact and the right that will be further described.

– II – SUMMARY OF THE FACTS This habeas corpus refutes the decisions rendered by the Defendant authority in the records of the Criminal Proceeding No 504651294.2016.4.04.7000/PR, which is pending before the 13th Criminal Federal Court of Curitiba/PR (Doc. 013, 024 and 035).

On September 14, 2016, the Paraná Federal Attorney’s Office filed an Information against the Arrestees and other people, to charge them, without the minimal evidentiary support, with the crime of receiving bribes and money laundering to the First Arrestee and money to the Second Arrestee. (Doc. 04).

3 Decision rendered on October 28, 2016.

4 Decision rendered on November 17, 2016.

5 Decision rendered on November 25, 2016.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

After being summoned, the Arrestees filed a Defense to the Prosecution (Doc. 05), on the occasion in which they required the production of documentary, witness and expert evidence.

Despite its indispensability, the Defendant denied the production of evidence, refuting the claim of the Defense6 through decisions that do not present, with all due respect, neither appropriate nor suitable grounds. As it will be demonstrated in details, by rendering this decision the Defendant determined manifest denial to the exercise of the right of defense by the Arrestees.

II.1 – Expert evidence The Arrestees’ Defense requested, on the occasion when the Defense to Prosecution was taken to court (October 10, 2016), the production of the following expert evidences: "The production of multidisciplinary expert evidence must be determined in order to identify (i) if there was the misappropriation of resources of Petrobras in favor of its officials regarding the three contracts indicated in the Information; (ii) who the beneficiaries of the embezzled money are; and (iii) if there was any kind of pass-through of these supposedly misappropriated resources in favor of Lula and Marisa Letícia"; "The production of economic-financial expert evidence must be determined in order to verify: (i) if OAS made direct use of the allegedly illegal resources originating from the three contracts signed with Petrobras indicated in the Information for the construction and any betterments carried out in the real estate development Solaris Building or, also, the payment to the company Granero for the storage of the presidential collection; (ii) any damage caused to the FEDERAL GOVERNMENT in face of any confirmed misappropriation regarding these three contracts indicated in the Information"; "The production of expert evidence in the Solaris Building must be determined in order to verify: (i) the date on which the development was concluded; (ii) the 6 The defense provided explanation in the records of the criminal proceeding on the pertinence and relevance of each evidence denied by the Defendant authority, within the legal limits of broad defense and without being subject to anticipation of the procedural strategy, in accordance with the motions for clarification on November 9, 2016, and responses of November 14, 2016 and November 17, 2016.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

status of the units, including in regard with the registration in the Register of Deeds; (iii) any alterations carried out in unit 164-A after the conclusion of Solaris Building; (iv) the price of unit 164-A and of any alterations carried out on the site; (v) any possession of unit 164-A by Lula and Marisa Letícia";

The fact is that, on October 28, 2016, the Defendant, in a decision for moving forward to the criminal proceeding — not granting the summary dismissal of any defendant — denied the defense requirements describes above, by simply affirming that such evidences were "inappropriate".

The decision is transcribed below: "In the first expert examination, the Defense wanted the experts to report if there was any misappropriation of resources of Petrobras in relation to the three contracts of Petrobras with the OAS Group and if part of them was designated to the former President.

In the second expert examination, the Defense wants the experts to verify if it is possible to establish a financial track between the amounts received from the OAS Group and the resources used for the construction of Solaris Building or for payments of betterments made in the apartment or payments for storage.

For both expert examinations requested, no affirmation is made in the Information, at first, that the money received by the OAS Group in the contracts with Petrobras was specifically designated to the former President. Money is fungible and it is not stated in the Information that there is a financial trail between the treasury of Petrobras and that of the former President, but that the benefits received by the former President were part of a bribe arrangement between the OAS Group and officials of Petrobras, and which also benefited the former President. Therefore, besides being inappropriate, the expert examination would be ineffective, as the prosecution is not based on any specific tracking.

The evidence has a documentary and oral nature, not an expert one. The request for determining the losses incurred by Petrobras in the contracts with the OAS Group is not part of the prosecution. The loss possibly resulted from the practice of cartel and big rigging, i.e., charges that were not filed against the former President. The third expert examination is unnecessary or inappropriate in defining the date the building was concluded or verifying the real estate registration of the building and, mainly, defining a "possible possession of unit 164¬A by the Defendants".

These facts require evidence of a documental and oral nature, not of an expert one. Finally, I deny the three expert examinations requested for being inappropriate or unsatisfactory for the intended purposes or even unrelated or irrelevant". (our remarks) São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

The aforementioned decision was questioned through motions for clarification (Doc. 06), on the occasion which the omission of the decisum was demonstrated in relation to the contents of the Information.

The motions for clarification, however, were rejected by the Defendant authority, in a decision concluding the inexistence of omission to be remedied.

The defense also presented an answer on November 14, 2016 and November 18, 2016, explaining – peremptorily – the pertinence and relevance of the requested evidences, without implying undue anticipation of the procedural strategy (Doc. 07 and 08).

Regarding the production of expert evidence, PACELLI says: "The expert evidence – before any other consideration – is a technical evidence, as it aims at confirming the existence of facts whose certainty, according to the law, would only be possible if certain things are known."7

It can be noticed that the evidence requested by the Defense is regarding the facts narrated in the initial pleading and attributed to the Arrestees, so that, depending on the result, it would confirm the inexistence of the charges.

In fact, with regard to the first expert evidence, the Defense of the Arrestees aims at investigating whether the resources of Petrobras were misappropriated or not, in relation to the three contracts signed between Petrobras and the OAS Group (indicated in the Information) and, mainly, if any embezzled amount was designated to the First Arrestee.

7 PACELLI, EUGÊNIO. CURSO DE PROCESSO PENAL. SÃO PAULO: ATLAS; 2014. P. 426.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

The denial of the production of such evidence was based on the grounds that “no affirmation is made in the Information, at first, that the money received by the OAS Group in the contracts with Petrobras was specifically designated to the former President”. The denial was also based on the transcript of the section from a decision previously given— on the occasion when this Information was received: “The Federal Attorney’s Office estimates that the total amount paid as bribes by the OAS Group resulting from the contracts with Petrobras, particularly in the Consortium CONEST/RNEST in construction works at the Northeast Refinery Abreu e Lima - RNEST and in the Consortium CONPAR in construction works at the Refinery Presidente Getúlio Vargas – REPAR, amounts to 87,624,971.26 BRL. From this amount, 3,738,000.00 BRL allegedly went to the former President.” (our remarks).

Now, the truth is, admitting that “at first” there was no affirmation that the money received could have led to the summary dismissal of the Arrestees! Or, yet, if it was understood otherwise, the conduction of the requested expert examinations is justifiable.

Notice that, if there is no financial track of the crimes alleged in the Information so far, the expert examination – for this reason – will be able to explain more clearly whether the crimes charged were practiced or not.

Specifically in regards to verifying “if it is possible to establish a financial track between the amounts received from the OAS Group and the resources used for the construction of Solaris Building or for payments of betterments made in the apartment or payments for storage”, the Defendant Judge of First Court stated: "For both expert examinations requested, no affirmation is made in the Information, at first, that the money received by the OAS Group in the contracts with Petrobras was specifically designated to the former President. Money is fungible and it is not stated in the Information that there is a financial trail between the treasury of Petrobras and that of the former President, but that the benefits received by the former President were part of a bribe São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

arrangement between the OAS Group and officials of Petrobras, and which also benefited the former President. Therefore, besides being inappropriate, the expert examination would be ineffective, as the prosecution is not based on any specific tracking." (p. 17-18 – our remarks)

Well, if one considers the — irrational— hypothesis that there is not, "at first", a financial track of the alleged crimes, it is being stated that these could be confirmed by unfair material advantages received by the First Arrestee...

Now, one could only consider the origin of the charge against the Arrestees if there was unequivocal evidence that they consciously received illegal amounts from Petrobras.

And it is precisely the result of the expert examination requested that may demonstrate that such event has never occurred — and, also, that the Arrestees never benefited from any amount of illegal source resulting from the three contracts indicated in the Information filed.

It is evident that the Arrestees cannot be charged with receiving, directly or indirectly, illegal amounts resulting from the three contracts signed by Petrobras and be prohibited of producing expert evidence which will demonstrate this has never occurred!

Unacceptable!

But that is not all.

The Defendant authority also denied another production of expert evidence with the aim of verifying “the date the building was concluded or verifying the real estate registration of the building and, mainly, defining a "possible possession of unit 164-A by the Defendants”.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

The denial presented the following reasons: "The third expert examination is unnecessary or inappropriate in defining the date the building was concluded or verifying the real estate registration of the building and, mainly, defining a ‘possible possession of unit 164-A by the Defendants'. These facts require evidence of a documental and oral nature, not of an expert one”. (p. 18 – our remarks)

Notice, however, that such expert evidence is also indispensable for investigating the truth of facts, as it relates with the core of the prosecution — i.e. the alleged ownership of the apartment 164-A of Solaris Building in Guarujá, erroneously attributed to the Arrestees.

It is appropriate to mention that the indiscriminate and recurrent denial of the claims of defense are diametrically opposed to the favorable treatment given to the prosecuting body.

An example of this discrimination related to the evidence took place in the hearing held on November 30, 2016: the Federal Attorney’s Office asked questions of a technical/expert nature to the witness that were promptly refuted by the Defense, seeing that there should be the production of expert evidence, presuming that concrete data unknown by the witness. Regarding these questions, the Defendant authority granted the question asked on the illogical grounds that the "witness is a technician and will answer as such."8 (Doc. 09).

8 Below is part of the transcription of the hearing: Federal Attorney’s Office:- Regarding these other renovations that were already carried out. With the experience you have, was the renovation carried out in the three-story apartment 164 in Guarujá a construction work related to the delivery of the apartment or was it a work of customization?

Defense:- Your Honor, I would like to speak.

Federal Judge:- In the microphone, ma’am.

Defense:- The Federal Attorney’s Office has asked questions about the apartment several times, and obtained all the questions related to the construction work and is now asking the witness’s opinion. I would like you to reject this question specifically, Your Honor.

Federal Attorney’s Office:- Your Honor, this question is not concerning opinion, it is a question of evaluation based on the experience of someone who works in the sector.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

On what grounds would the unequal treatment of the parties be justified? The Federal Attorney’s Office was granted even the production of technical evidence through testimony! It is sui-generis evidence!

Thus, in view of the foregoing, we call for the attention of the illegality of the decision restraining the right to a fair hearing, which is determinant for the nullity of the case, with all consequences provided by law.

II.2 – Documentary evidence. a) Documents related to Petrobras

On the submission of the Response to Prosecution, the following was requested by Petrobras to be attached to the records: (i) copy of all minutes of general meetings and special meetings of the Board of Directors and its Fiscal Committee, including any attachments within the period from Jan. 01, 2003 to Jan. 16, 2016; (ii) copy of all minutes of over in the same period and, also, of opinions and responses issued by the body within this period.

Defense:- Your Honor, I protest, defense of... Your Honor, I protest...

Federal Judge:- Yes, I am listening.

Defense:- By the defense of Paulo Okamoto, I repeat, the lawyer’s argument and the answer to this question are extremely subjective, unrelated to the facts. It is a subjective question. I request it is rejected.

Federal Judge:- I accept the question as it is a question about the witness’s professional experience and technical evaluation.

Defense:- Your Honor, by the defense of Luiz Inácio Lula da Silva and Marisa Letícia Lula da Silva, technical matters must be addressed in the production of expert evidence, and not... The witness has to testify about the facts, not make technical evaluations. Therefore, on this ground, I will also object to the question, as my colleague did.

Federal Judge:- All right. I accept it as I already said. Could you ask the question agains?

Federal Attorney’s Office:- Mr. Armando, I will repeat the question. So, with the experience you have, considering these other construction works you performed, was the renovation you carried out in the three-story apartment 164-A, in Guarujá, a construction work to deliver the apartment or was it a work of customization?

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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In the decision of November 28, the Defendant authority also happened to deny this evidence on the following grounds:

“The claim for attachment, within the period from 2003 to 2016, of all minutes of meetings of the Board of Directors, Fiscal Committee, and the dozens of Bidding Committees of Petrobras. Evidences have a cost and the subject-matter of the Information is specific, related to the three contracts. The documentation of Petrobras is, thus, that relevant to the three contracts and not all the minutes of meetings of collective boards of Petrobras over 13 years. (...) Hence, I deny the attachment of all the minutes of meetings of collective boards of Petrobras over 13 years, as well as all the minutes of the company’s bidding committees over thirteen years. If, among these documents, there are some specific ones that are relevant, the Defense may select them and explain their relevance for a possible new decision of the Court.” (our remarks)

In a response of November 14, 2016 (cf Doc. 07) to the aforementioned ruling, the Defense of the Arrestees explained the importance of said evidences for the evidentiary stage. Nonetheless, the Defendant authority denied again on November 17, 2016, ignoring all the argument brought, saying that the Defense “did not explain the relevance of all this material, on account of the limited subject-matter of the Information, and the cost to produce a great quantity of documents without a specific purpose”.

It is not necessary to make a further detailed analysis of the papers to notice that they describe “Lula conducted the formation of a criminal scheme of misappropriation of public resources with the intention of growing rich by illegal means”, aiming at the “criminal permanence in the power” and the obtention of “illegal benefits”. In addition, according to the papers, the “distribution of high rank positions in the Federal Government, including PETROBRAS, was, at least in many cases, an instrument for bribes collection to enrich public officials, criminal permanence in power, and to buy off the support of political parties in order to ensure their adhesion to the LULA government”.

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Additionally, according to the complaint, this mechanism allegedly served to “buy off” the support of 11 parties of the “allied base”, 73% of Federal Representatives and a significant part of the Parliament.

Therefore, the Defense of the Arrestees need to have access to all the minutes of meetings mentioned in the Response to Prosecution, as it is not possible to know beforehand the dates on which such contracts were discussed by the top management of Petrobras — before, during or after the bidding process and award of contract —, whether directly or indirectly.

The denial of the right to be heard is confirmed and repeated. b) Documents related to the Presidency of the Republic

In the defense to the criminal complaint, it was requested that an order was issued to the Presidency of the Republic to send to the records of criminal action in question regarding 84 business missions performed by the First Arrestee occupying the position of President of the Republic between 2003 and 2010, including the destinations and participants On November 17, the Defendant authority denied the evidence requested to the Presidency of the Republic, and stating that the Defense "adds nothing to the pertinence and relevance of the evidence", not taking account of the explanation on November 14 regarding the pertinence of the evidence. Motions for clarifications were filed against this omission, but they were rejected by the Defendant authority.

It is worth mentioning that said evidence, as already explained in the original records is necessary for the production of evidence for the case, as the complaint states — in a frivolous manner, I must say — that the First Arrestee’s both presidential terms of office constituted a form of criminal permanence in power.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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Therefore, the evidentiary method requested by the Defense will disprove the unreasonable allegation that the First Arrestee based his government policies on unlawful interests and because of that allegedly received undue amounts.

Therefore, the above-mentioned production of documentary evidence is completely relevant and necessary, in the light of the principle of equality of arms and fair hearing. c) Documents related to the National Congress

It was also requested at the end of the Response to Prosecution that the National Congress is informed of the status of all bills submitted by the Presidency of the Republic between 2003 and 2010, including, among other things, amendments submitted and any quorum to approve them.

The Judge of the First Court ordered the Defense to clarify the pertinence of evidence, what was done in a response issued on November 14 (cf Doc. 07). Such clarification, however, was not considered by the Judge, who stated that it "adds nothing to the pertinence and relevance of the evidence", and denied the claim.

Again, denying access to the requested evidence constitutes unfounded denial of the right to be heard. The Federal Attorney’s Office criminalizes government acts connected with to the exercise of the Presidency of the Republic. On several occasions, the prosecution uses the terms “criminal permanence in power”, “corrupted governability” and “governability installed on criminal foundation”. The Information also makes reference to the bills that were approved by the National Congress and seeks to draw erroneous conclusions, what confirms the importance of the requested evidence, which has a close connection with the allegations.

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The accusatory hypothesis goes further: it affirms that during the terms of office of the First Arrestee, there was vote-buying of over 70% of the members of the National Congress, attributing – indirectly – the commission of crimes by great part of the political officials of the Legislative Branch The production of the evidence mentioned here is extremely necessary as to prove - documentally - how the procedure of analysis and approval of the bills initiated by the government of the First Arrestee occurred, confirming that such projects were carried out within the legal and regimental limits . Another evidence that can clearly refute the accusation and that was improperly denied!

d) Evidences relevant to the Federal Accounting Court and the Office of the

Federal Controller General In the defense against groundless accusation, we requested that an order was also issue to the Federal Accounting Court (TCU) to send a copy of all the procedures related to the accounts and audits of Petrobras within the period from January 1st, 2003 to January 16, 2016, along with any opinions of auditors and decisions given in these procedures, as well as an order issued to the Office of the Federal Controller General to send a copy of all the procedures related to the accounts and audits of Petrobras within the period from January 1st, 2003 to January 16, 2016, along with any opinions of auditors and decisions given in these procedures.

However, in the ruling for proceeding with the case, the Defendant authority ordered the Defense to explain the pertinence of the claim, what was done and, in spite of the explanation, the evidence was denied when the ruling of November 17, on the unreasonable grounds that the Defense adds nothing regarding the pertinence, as well as the accusation only relates to three specific contracts.

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The evidence, however, is fundamental. Because, as the Federal Accounting Court is the main external control body of Petrobras, it is evident that the technical attitude of the body in regard to the company’s acts is an important source of evidence analysis for the conclusion of the case in question.

The Federal Attorney’s Office also accuses the Frist Arrestee of allegedly commanding and intervening in the whole criminal organization, where illegal amounts were charged in contracts signed with Petrobras.

It should be remembered, in that connection, that all the procedures involving Petrobras go through a careful analysis and the meticulous control of external and internal bodies. The strictly technical and unbiased analysis of these bodies of the procedures Petrobras – which, as described in the Information, were illegal and commanded by the former President – would certainly deny the accusatory hypothesis and confirm that there is no logical or factual grounds that the First Arrestees had any level of interference seeing that a strict control was performed by the competent bodies, such as the Federal Accounting Court (TCU) and the Office of the Federal Controller General (CGU). e) Documents related to Planner Trustee

In the defense to the criminal complaint, it was also requested that an order was issued to the company PLANNER TRUSTEE to (i) inform its contractual relationship with the company OAS in regard to Solaris Building, including, but not limited to, the resources provided for the construction of the building, the guarantees involved and, also, the status of the operation; as well as to (ii) attach copies of the corresponding documents to the records;

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The restriction of the defense persists. The judge, firstly, ordered the Defense to explain the pertinence of the evidence requested. After all due explanations were given, the Defendant authority once again did not consider the argument of the Defense and denied the evidence stating that it "adds nothing to the pertinence and relevance of the evidence."

This evidence, however, is extremely relevant so as to clarify the facts reported in the Information. This evidence was requested, especially, to clarify the source of the resources used – fully or in part – for the construction of Solaris Building.

In other words, it is intended to demonstrate that the source of the resources related to that real estate development did not come from a "general bribery cash", as it is stated in the Information – besides the fact that the Arrestees were never aware of such source.

The production of documental evidence denied as presented in this section clearly represents a case of denial of the right to be heard.

II.3 – Witness evidence Concerning the witnesses presented by the Defense, the Judge of the First Court, based on the terms of Article 222-A, ordered the Defense to demonstrate the indispensability of hearing those witness living abroad.

Thus, considering the 03 witnesses in this circumstance, the Defense demonstrated, on a well-founded manner, the relevance, pertinence and importance of the witnesses mentioned above in petition from November 14th (cf.

Doc. 07), as the clarifications of such witnesses have an incalculable value for the procedural strategy of the Arrestees.

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In spite of such explanation, the Defendant authority declared the Defense’s opportunity to clarify the indispensability of hearing those witnesses living abroad as precluded, by totally ignoring the Defense’s argument, as transcribed below: "Regarding Ambassador Paulo Cesar de Oliveira Campos, with home address in France, the Defense has not mentioned anything. Thus, I declare the Defense’s opportunity to demonstrate the indispensability as precluded, in accordance with Article 222A of the Code of Criminal Procedure." (p. 07)

Such event led to motions for clarification (cf. Doc 04) which were denied by the Judge of First Court.

In other words, the testimony of Ambassador Paulo Cesar de Oliveira Campos was denied on the erroneous grounds that the Arrestees’ Defense did not demonstrate the indispensability of the hearing.

However, said indispensability has been demonstrated by the Arrestees’ Defense.

The testimony of Ambassador Paulo Cesar de Oliveira Campos is really necessary to properly investigate the facts reported and especially the ones attributed to the First Arrestee, seeing that he occupied important positions during his government and he will be able to provide valuable clarifications so as to refute the allegations contained in the Information — especially those regarding the lawful, righteous and ethical character in relation to the actions of the First Petitioner regarding matters related to Petrobras and other government bodies.

Therefore, in face of the denial to the production of evidence explained here in this section, the Judge of the First Court evidently denied the Arrestees the right to be heard, imposing criminal coercion on them, as they were unable to exercise their rights according to the fair hearing and the adversary principles.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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– III – CRIMINAL COERCION – DENIAL OF THE RIGHT TO BE HEARD As explained above, when the Defendant authority rendered the decisions contested here, the Arrestees were unable to produce all the evidences that they considered to be pertinent — so that they could refute the hypothesis formulated by the prosecution.

In face of our constitutional guarantee system, it cannot be legitimized that a defendant is refused the right of defense – the touchstone of the system in guaranteeing the balance between all the performers on the stage of criminal procedure.

Granting an alleged right of defense, without allowing the party to produce evidence, implies a defense precluded of any possibility of influencing the Judge’s conclusion. Suppressing the right to broad defense is a cruel political atrocity; allowing such right, while denying it to be broad, technical, free and effective, is tyranny!

As instructed by Ada Pellegrini Grinover, Antonio Scarance Fernandes and Antonio Magalhães Gomes Filho9[6]: "The adversary guarantee is not intended for the defense in only the negative sense – meaning opposition or resistance – but especially, the defense with its positive sense as influence, i.e., with the right to influence actively in the development and the result of the case. This is the view that puts case, defense and adversary as rights around which all the activities necessary to protect one's interests throughout the entire process are developed, presenting itself in a 9Ada Pellegrini Grinover, Antonio Scarance Fernandes, Antonio Magalhães Gomes Filho. As Nulidades no Processo Penal. 6th ed. RT. p. 119 [ São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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series of advantage positions that are entitled to either the plaintiff or the defendant."

It is important to emphasize that the right to evidence results directly from the constitutional principle of broad defense and case. Because, the production of evidence is intimately related to the search for the real truth of the case: Article 5, Federal Constitution: LV – In legal or administrative proceedings, the litigants and defendants are guaranteed with the adversary proceeding and broad defense, through the means and resources typical to it; LVI - in the proceeding, evidences obtained by illegal means are not allowable;

Also, the Code of Criminal Procedure establishes that the production of evidence is indispensable for the Judge to form his findings, which cannot be based solely on informative elements: Article 155. The judge will form his findings by the free evaluation of the evidence produced in the adversary proceeding, and cannot base his decision exclusively on informative elements collected during the investigation, except for provisional, not repeated and anticipated evidences.

If suppressing the right of the Defendant to produce evidences in a criminal proceeding that will prove his innocence is not considered to be criminal coercion and clear prejudice, we do not know what could be considered as such!

The proceeding clearly lacks the parity of arms. The production of evidence was conveniently granted to the prosecution, while the defense of the Arrestees had much of the evidence requests denied, for the reason that they "add nothing to the pertinence and relevance of the evidence."

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In this sense it is convenient to evoke that the Federal Attorney’s Office: (i)

Filed the information against the Arrestees and at the same time holding a press conference with two purposes: eliminating their chance of entering the case as presumably innocent and with equality of arms, according to what is provided by the Federal Constitution, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, among other statutes, and, in this manner, disguising the technical-evidential fragility of the initial pleading. The defendant authority was

(ii)

entirely favorable, accepting the information; Subscribed, in the complaint, unreasonable imputations – treating as criminal even government acts – ranging from year 2002, regarding facts which they had no related evidence, much less jurisdiction over, once most part of the facts described in the information are under investigation of our highest Court10.

Nonetheless, the defense’s request to produce documentary evidence, regarding the year 2003, was considered irrelevant and impertinent;

(iii)

Called witnesses that did not have any kind of relation with the imputed facts, allowing their examination on circumstances that have not been object of the offenses attributed to the Arrestees (Doc. 10)11;

10 Inq. 3989 (Reporting Judge: Justice Teori Zavascki) 11 Doc 07 – Transcriptions of the hearings conducted on 11.21.2016, 11.23.2016, 11.24.2016, 11.25.2016 and 11.28.2016, in which can be clearly verified the production of testimonial evidence on unrelated facts with the imputation made against the Arrestees.

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(iv)

Still about the prosecution witnesses, the defendant authority has agreed to hear the former Representative Pedro Corrêa – convicted in Criminal Action 470 (“Mensalão”) by the Judge of “Operation Car Wash” – whose plea bargain agreement has been rejected by the Federal Supreme Court, exactly because it recognized that the informer “made a series of accusations against several politicians and entrepreneurs , but have not presented evidences, nor even minimum circumstantial evidence of the veracity of the accusations”12.

(v)

In a hearing conducted on 11.30.2016, the Federal’s Attorney Office questioned the witness about a strictly technical aspect that could only be proved by expert evidence. The Arrestees’ defense immediately objected to the question claiming that such clarification could only be provided by expert evidence. Does the testimony of a witness now serve as expert evidence? However, the defense’s objection was denied by the defendant authority, under the allegation that “the witness was a technician and would answer like one”. That is, it is allowed to the Federal Attorney’s Office the production of expert evidence through a witness’s “opinion”, nevertheless, the defense’s claims are considered irrelevant and impertinent13;

(vi)

Until the present moment, there was no production of financial expert evidence in “Operation Car Wash”, which is at least strange, once the major part of the imputed crimes would demand such sort of evidence for a conviction, according to procedural Law. The imputations are based on contracts – signed after the

12 Available at < http://oglobo.globo.com/brasil/ministro-do-stf-devolve-acordo-de-delacao-de-pedrocorrea-20364775 > Accessed on 12.09.2016.

13 Cf. Doc. 09 São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

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strict control of several Petrobras’s14 internal and external bodies – however, without the indispensable presence of expert evidence that would support them. How could someone be accused – and convicted – for having received unfair advantages this way? (vii)

The information filed against the Arrestees treats exactly of the alleged undue values received through a property and a storage agreement. How could the unlawful acts – or the Arrestee’s innocence – be proved without the expert evidence proving the routing of the allegedly spurious values or the presence of the subjective criminal element? Furthermore: the expert evidence could effectively prove that the Arrestees are not the owners or has ever used the property which is the object of the information.

The unequal attitude towards the parties of the proceeding

constitutes a repulsive authoritarianism, partiality, and frontally offends the fundamental rights of the Arrestees, despite of them be ensured by the Federal Constitution.

We cannot forget to mention the fact that in a summary copy of the writ there is not the revolving of the factual-evidential framework of the detailed (re)appreciation of the evidence. Nevertheless, the restrictions to the right to produce evidence are latent and noticeable in a manner they can be identified without further difficulty, endorsing the denial of the right to be heard here proposed.

NEREU GIACOMOLLI has discussed, with great knowledge, about the fundamental right to produce evidence, which is known to be unlimited: “The fundamental right to produce evidence in the proceeding covers the possibility of both prosecution and defense pointing the sources of evidence and requiring their incorporation into the proceeding (people to be heard in 14 Among the mentioned bodies are the Federal Accounting Court and the Office of the Federal Controller General.

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Court, documents to be examined, e.g), the requirement of legal methodologies in the production of evidence (witness examination order, who is supposed to start the examination first, how to proceed with the examination, participation in a crime reenactment, e.g.), as well as the requirement of appreciation of evidence elements, and of all factual and circumstantial data by the Judge.

However, the right to produce evidence is limited by the admissible evidence, valid, that has been produced through the due process (telephone interceptions with no legal authorization, e.g.). Therefore, both parties have the right to influence on the Judge’s findings. The guarantee of effectiveness of such right depends, also, on the affirmation of the equality of opportunities and on the repelling of any obstacle to factual presentations intended by the parties, at all moments of the proceeding.”15 (Our remarks)

In this sense, EUGÊNIO PACELLI discussed about the necessity of producing specific evidence, as a manner of requiring a higher degree of certainty regarding the Judge’s findings: “Although there is a general agreement on the non-existence of a hierarchy of evidences, it can be reasoned that, in face of the several difficulties ever present in the reconstruction of the truth, within any field of knowledge, our legislation is concerned with an evidence specificity for the proving of certain facts. And we do not see any inconvenient in requiring a higher degree of certainty for the establishment of the Judge’s findings. In the context of a criminal proceeding in accordance with the full guarantee system, in certain cases, such requirement might even become a necessity.” (Our remarks)

On the analysis of the relevance of the evidence, the doctrine of GUSTAVO HENRIQUE BADARÓ:16 " Turning to the analysis of the general rule of admissibility of the relevant evidence, it must finally be emphasized that in probative systems where the parties have a genuine right to evidence, admissibility criteria must be designed on the basis of a system of inclusion : The rule is that the evidence required by the parties must be admitted. There will be exclusion only in cases of manifest irrelevance or impertinence of the evidentiary medium required by the parties. To reverse the signs of these premises would be to work with an exclusionary regime: as a rule, the evidence is not admitted unless the party demonstrates that it is relevant and pertinent. In a system like this, the right to prove would be no more than a false promise. "

15 Giacomolli Nereu, José. (2014). O devido Processo Penal. (p.161). São Paulo: Atlas.

16 BADARÓ, Gustavo Henrique, Processo Penal, 3ª edição, Ed. RT, 2015, p. 401.

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In order to corroborate the above, we enter the consolidated praetorian understanding, recognizing the denial of the right to be heard due to the denial of the production of evidence, as can be seen below: “CRIMINAL AND PROCEDURAL. PRESS LAW. PREVIOUS DEFENSE. WITNESSES. TESTIMONY. DENIAL. DENIAL OF THE RIGHT TO BE HEARD. FIALDINI, GUILLON ADVOGADOS Rua Teodoro Sampaio, 1020 – 15th floor – Zip Code 05406-050 São Paulo-SP – Brazil – Tel. 55 11 3069-4200 – Fax 55 11 3068-9032 Page 35 of 65 The search for real truth is a principle that governs criminal procedural law. The production of evidence, because it constitutes a constitutional guarantee, can be determined even by the judge, ex officio, when he deems it necessary (articles 155 and 209 of the CPP). The Judge shall freely assess the evidence. However, the rejection of a request for the testimony of the witnesses, recorded in the preliminary defense, mainly due to a premature confidence of its uselessness, constitutes a denial of the right to be heard. Appeal granted, to determine the testimony of the witness called by the defense.” (STJ, 6ª T., RHC n.º 12.757-BA, Rel. Min. PAULO MEDINA, J. 21.08.2003, DJ 15.09.2003, p. 401) (our remarks) -----------------------------------------------------------------------------------------------“CONSTITUTIONAL. CRIMINAL PROCEDURE. HABEAS CORPUS. PRODUCTION OF EVIDENCE. REJECTION OF EVIDENCE. FAIR HEARING PRINCIPLE. VIOLATION. - In the course of criminal proceedings, the evidence required at the stage of written arguments (CPP, art. 395), provided they are admitted in law and pertinent to the materiality and authorship of the criminal act, cannot be rejected by the Judge, under penalty of disrespect to the principles of fair hearing and adversary proceeding. Constitutes criminal coercion, liable to reparation by means of habeas corpus decision that denies the testimony of witness called by the defense due to the mere circumstance of residing abroad. - Habeas-corpus granted.” (STJ, 6ª T., HC n.º 9.253-PB, Rel. Min. VICENTE LEAL, J. 07.10.1999, DJ 05.03.2001, p.

237) (our remarks)

In the light of such a fundamental right, therefore, the technical defense, when it filed its Response to the Prosecution in order to demonstrate the procedural truth, requested, based on Article 396-A of the Code of Criminal Procedure, the production of evidence that it understood to be indispensable for the correct judicial conviction.

In light of all the above, the criminal coercion borne by the Arrestees is clear.

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From any point of view, it is imperative that the Habeas Corpus is granted, in order to annul the act and to grant the requested evidence, as the only way to cease the criminal coercion of the Arrestees, on an ongoing basis.

– IV – NECESSARY GRANT OF WRIT OF INJUNCTION In this case, the grant of an injunction is necessary.

In fact, as demonstrated above, the Arrestees were barred from proving their allegations; their rights to defense were manifestly prejudiced. From the position of the Defendant authority, they are bound to bear an unjust and illegitimate trial - the purpose of which has long been outlined, regardless of the evidence that is brought to the record.

Si et in quantum, therefore, the processing of the deed must be halted, until the final decision of this writ.

It is settled that, for the granting of injunctions, two basic elements must be present: the fumus boni juris and the periculum in mora (danger of delay).

The first one is the "smoke of good law", that is to say the existence of affirmed right.

In this respect, FREDERICO MARQUES observes that: “(...)There must be fumus boni juris so that the criminal action contains conditions of viability. Otherwise, the complaint will be defective, due to lack of legitimate interest and, consequently, good cause. It is imperative,

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

therefore, the judge's control over the complaint's feasibility condition, otherwise the status libertatis of the accused may be attacked”. 17

The second concerns an irreparable damage to Arrestee's right. It is also evident, given the imminent possibility that the Arrestees will be tried and convicted, without any chance of producing evidence of their allegations, which constitutes unprecedented criminal coercion. The preliminary decision - which is a matter of urgency - aims at mitigating and preventing the continuation of the criminal coercion.

The continuity of the process in such circumstances daily renews the criminal coercion suffered by the Arrestees, with the performance of the Judge lacking impartiality, whose role should be to guarantee the fundamental rights of the accused. Thus, both the periculum in mora (danger of delay) and the fumus boni juris, for the grant of the injunction are present.

It is necessary and expected, therefore, the injunction to suspend the processing of Criminal Action No. 5046512-94.2016.4.04.7000 / PR, until the final judgment of the merits of this suit for a writ of mandamus, declaring the nullity of the decisions rendered by the Defendant authority, which rejected the production of the evidence requested, thus guaranteeing access to all evidentiary elements unduly denied to the defense.

17 JOSÉ FREDERICO MARQUES. Elementos de Direito Processual Penal. Rio de Janeiro, Forense, vol.2, pg.167.

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905

JOSÉ ROBERTO BATOCHIO ADVOGADOS ASSOCIADOS

–V– REQUESTS Wherefore, we ask this Court to order: (a)

The granting of the injunction ordering the suspension of the

processing of Criminal Action No. 5046512-94.2016.4.04.7000/PR until the final judgment on the merits of this suit for a writ of mandamus. (b) The notification of the Defendant authority to give the usual statements, within the legal time period; (c) In the end, the granting of the writ of habeas corpus for the annulment of all decisions that dismissed the claims of production of evidence by the Arrestees, annulling, alike, the lawsuit, from the receipt of the complaint.

Grant is requested, São Paulo, January 30th, 2017.

ROBERTO TEIXEIRA

CRISTIANO ZANIN MARTINS

OAB/SP 22.823

OAB/SP 172.730

JOSÉ ROBERTO BATOCHIO

JUAREZ CIRINO DOS SANTOS

OAB/SP 20.685

OAB/PR 3.374

São Paulo R. Pe. João Manuel 755 19º andar Jd Paulista | 01411-001 Tel.: 55 11 3060-3310 Fax: 55 11 3061-2323

Rio de Janeiro R. Primeiro de Março 23 Conj. 1606 Centro| 20010-904 Tel.: 55 21 3852-8280 www.teixeiramartins.com.br

Brasília SAS Quadra 1 Bloco M Lote 1 Ed. Libertas Conj. 1009 Asa Sul | 70070-935 Tel./Fax: 55 61 3326-9905