Moorish woman calls for Lewandowski’s decision to be annulled

Considering that there was usurpation of the jurisdiction of Minister Luiz Edson Fachin, rapporteur of actions and challenges in the STF in relation to the self-described “lava jato”, the former judge and former Minister of Justice and Public Security Sergio Moro joined the Supreme Court with a complaint alleging the suspension and revocation of the decision that delivered the messages obtained by the hacker Walter Delgatti to the defense of former president Lula.

The decision that Moro is trying to annul was taken by Minister Ricardo Lewandowski, rapporteur of complaint 43,007. Delgatti was arrested by the Federal Police in an investigation called an identity theft operation in 2019, when Moro was Minister of Justice in the Bolsonaro government. The dialogues seized by the PF were examined and, following Lewandowski’s decision, they went to Lula’s defense.

Moro’s procedural strategy, represented in the file by his wife, attorney Rosangela Wolff Moro, is to attempt to force the distribution of his petition to a minister who may have a different understanding than Lewandowski.

For this, a complaint is used, an action designed to preserve the jurisdiction of the Court and guarantee the authority of its decisions. It turns out that complaint 43,007 – in which it was decided to allow Lula’s defense access to the dialogues of the “leaked jet” – had already been distributed, for its prevention, to Minister Ricardo Lewandowski.

Lula’s defense filed complaint 43,007 because a decision of the 2nd Chamber of the Court – which had assured the defense of the former president access to the records of the Odebrecht clemency agreement with respect to the PT – was not being carried out by the XIII Federal Court of Curitiba (where the “lava jet” of Paraná is processed). This decision of the 2nd Panel took place in the context of another complaint (33,543), whose complaint, after the trial, fell precisely on Lewandowski, hence the prevention.

Now, Moro’s defense, in an attempt to dismantle this prevention, says that the rapporteur of complaint 43,007 must be Minister Fachin, rapporteur of other actions and appeals filed by Lula’s defense. For example, HC 126,292, dismissed by the STF in 2018 and which resulted in the arrest of the former president, as it considered, at the time, that the execution of the prison sentence could dispense with the unappealable transit.

Authenticity of the messages

In the work, once again, the thesis is defended that the messages apprehended by the Federal Police – and investigated by them – are not authentic.

Furthermore, it is also argued that, even if such dialogues were to be considered authentic, the evidence they constitute would be illicit, since they were initially obtained by hackers “for criminal violation” of the authorities’ cell phones. “The fact that the messages were legally apprehended by the Federal Police does not, of course, authorize them to be used against victims of criminal violations perpetrated by hackers,” says the extract from the document, apparently ignoring that the handling of illicit evidence to in favor of the accused and not against the owners of the pirated cell phones).

The play even tries to get around the problem, stating that the messages do not prove Lula’s innocence. But he forgets to say that this is not the case: if such messages show, for example, the partiality of the judge (which is articulated with the prosecution), the problem becomes procedural, nullifying the investigation, the complaint and the procedural instruction. .

Argument from authority

In the mission to demonstrate that the illegal evidence is not admissible, Moro’s petition cites a precedent from the STF. In such a decision, the Court considered unlawful evidence that would show that a defendant is a pedophile. But such evidence had been withheld from the defendant himself, “in a manner incompatible with the ethical-legal limits that restrict the actions of the State in the framework of criminal prosecution.” Totally different hypothesis, therefore.

Even so, the work continues: “It should be noted that here, unlike that case [da prova ilícita que condenaria o réu acusado de pedofilia], the victims of the theft of the alleged messages are not criminals, but State Attorneys and also the appellant, that is, agents of the law. a distinctive of authority.

Text updated at 11:15 pm on 2/3/21.