Legal experts argue for Moro's disqualification and the annulment of the trial against Lula.

By Flavio Ilha, from Extra class - The jurist Lenio Streck, one of the organizers of the recently launched Book of Suspicions (Prerogatives, 296 pages), does not mince words in defending his thesis – this in a field marked by a diplomacy that is not always genuine: former judge and former minister Sérgio Moro was not impartial in the trial of the triplex case of former president Luiz Inácio Lula da Silva and, therefore, the process should be annulled in its entirety.

 Known for his eloquent rhetoric, which became famous during the impeachment process of former President Dilma Rousseff in 2016, Streck argues in the book that Moro's bias was "spitting image" – a play on words with the expression "carved in Carrara marble" – when the then-judge of Lava Jato released the wiretapped conversations between Lula and Dilma in March 2016. The dialogue precipitated the impeachment process. impeachment Dilma's decision, which would be formalized five months later.

“The release of the conversations brought down the president. After that, Moro's bias became so evident that he should have been disqualified then and there. But the Supreme Court failed,” says the jurist, commenting on the launch of the book, which is available for purchase. download FreeSince Friday, July 31st, when access to the book was granted, more than 150 copies have already been downloaded. This indicates that the matter is far from over.

That's because a case is being processed in the Supreme Federal Court. habeas corpus (HC) which requests the legal recognition of the bias of former judge Sérgio Moro in the triplex case, which, according to article 564 of the Penal Code, would lead to the annulment of the process that sentenced Lula to 12 years and one month of imprisonment. Ministers Edson Fachin, rapporteur of the lava Jato In the Supreme Court after the death of Teori Zavascki in 2017, Cármen Lúcia and others have already voted against it. However, a request for review by Justice Gilmar Mendes has stalled the analysis.

40 columnists debate facts and arguments.

The book, organized by lawyer Marco Aurélio de Carvalho, one of the founders of the Brazilian Association of Jurists for Democracy (ABJDThis publication brings together a team of 40 columnists – including the two of them – to discuss, with a wealth of facts and arguments, the delicate topic that intersects law and politics. The result is a compendium on the fragility of the legal guarantees that should protect any Brazilian citizen against the fury of political or moral interests.

“Moro always had backing in the higher courts, which is why he did as he pleased. He always used, and I told him this in a debate in São Paulo in 2015, the target effect: he first shoots the arrow and then paints the target around it. That way, he never misses. You can put that the authorship of the target effect is mine,” the jurist joked.

But, according to Streck, questioning Moro's impartiality is a difficult task: “For a judge to be considered biased in Brazil, he has to be a sworn enemy of the defendant. It's not enough to be an enemy, he has to be a super-enemy. It's bizarre. In Europe it's not like that. There, Moro's decisions would be easily overturned,” he says.

Even so, the book argues for the annulment of the process, regardless of the political repercussions it may have. “When it comes to guarantees, the law cannot be analyzed in a consequentialist way. Of course, the entire process should be declared null and void. What about the repercussions of that? And what about the repercussions of 100 deaths (in the coronavirus pandemic)? Is it big? Small? Is annulling a process something that will cause marches in the streets? Well, if so, then we are not getting used to democracy,” he concludes.

Behind the scenes of Lava Jato.

Interrogation of former President Lula led by former judge Sergio Moro.

Photo: Reproduction/Video

In Brazil, however, even a series of reports like the one by The Intercept BrazilThe evidence presented last year, which revealed the inner workings of Operation Lava Jato in chats from various groups within the Federal Public Prosecutor's Office, is not sufficient to demonstrate the bias of a magistrate – according to the investigations, Moro acted as both judge and prosecutor, guiding prosecutors, demanding results, and even anticipating decisions. Why is the evidence of bias not sufficient to prove Moro's impartiality?

“In this polarized country, people celebrate a handball goal and then complain that they lost the match precisely because of a handball goal. We failed back then. In the legal field, we have formed a multitude of reactionaries who hate guarantees. There are vaccine deniers, virus deniers, and unfortunately, there are also deniers of the law. Where did we go wrong? We have to look for patient zero of this legal pandemic,” Streck replies.

The Prerogativas group brings together professors, lawyers, judges, prosecutors, public defenders, union members, NGO members, and journalists. In total, there are 256 members. According to Streck, the group's motto is: Is there authoritarianism? We are against it. "The group has achieved institutional recognition by acting on several fronts. In the direct actions of unconstitutionality (ADCs) regarding the presumption of innocence, for example, all the protagonists are from Prerrogativas," he informs. The patron is the lawyer Sigmaringa Seixas (1944/2018), a member of the 1988 Constituent Assembly and consultant for Amnesty International in Brazil.

The book also states that a portion of the population, including the legal community, knows what Moro did. And he didn't become a hero precisely because he disregarded due process, which imprisons a petty thief and delays justice. ad eternum A white-collar worker?

“Operation Lava Jato has become a brand. People are right to support the operation because, historically, only the poor went to jail in Brazil. In the social imagination, Lava Jato is a balm. I know that. The problem is that all of this has been very costly. The economic cost to the country was not worth it. Petrobras alone shows that. Other countries have fought corruption without breaking up companies,” the lawyer replies.

Procedural guarantees and democracy

But the jurist points out another negative factor: the symbolic cost of Lava Jato. “In Brazil, there’s little belief in guarantees. It’s because the idea that habeas corpus is only for criminals has spread, with the help of the mainstream media, when the first thing they should teach in any law school is: law is about upholding guarantees. Here, if you speak in favor of the Constitution, you’re a communist,” Streck says ironically.

“Moro took advantage of this yearning. There were enormous failures on the left, which bet too much on politics and too little on the legal factor. That was wrong. In this 'empty' space, a moralistic imaginary took advantage, creating a slogan that ended up 'catching on': the ends justify the means. Or corruption is bad. Now, nobody is in favor of corruption, except the corrupt. But Moro and his group appropriated the idea of ​​fighting corruption, and this became a performative phenomenon,” he laments.

And he concludes: "Without procedural guarantees, there is no democracy."