In his pursuit of lawyer Rodrigo Tacla Duran, the then judge of Operation Lava Jato, Sérgio Moro, now a senator (UB-PR), even gave up prosecuting one of the alleged crimes of money laundering that the Federal Public Ministry ( MPF) from Curitiba filed once morest the defendant, so that the trial would take place in Spain.
Duran, who was accused of being an operator of the construction company Odebrecht, publicly denounced having received a request for bribes from lawyer Carlos Zucolotto, a friend and best man at the wedding of former judge Sergio Moro, when he began to be sued by the Republic of Curitiba in the midst of of Operation Lava Jato. From then on, Moro’s persecution began.
Moro’s decision, although it may even be justified with the search for greater objectivity in the action, cannot fail to be seen as an attempt to harm Duran. As the defendant has dual nationality (Brazilian/Spanish), Moro’s extradition request was not granted, since Brazil does not extradite its citizens either. Transferring part of the process to Spain, Moro certainly imagined that the accused lawyer would have his freedom restricted in that country. What did not happen.
By giving up his jurisprudence, failing to judge a part of the complaint made by the MPF of the so-called Republic of Curitiba, Moro ended up surprising jurists. Heard by the Blog, three experienced lawyers considered it an unusual and unusual act. They claim that nothing like this has ever happened. For one of these experienced criminalists, Moro did something more than give up his jurisprudence. In fact, he relinquished Brazilian sovereignty in a lawsuit.
Moro dropped the case following receiving a complaint
What was surprising was what happened to Moro, who even brought cases that were unrelated to his jurisdiction to Curitiba. This is what happened with Operation Lava Jato actions – including those once morest former President Luiz Inácio Lula da Silva – which, much later, were redistributed by the Federal Supreme Court (STF) to courts in other cities.
By revoking the preventive detention that Moro had decreed once morest Duran in 2017, Judge Eduardo Appio, new holder of the 13th Federal Court of Curitiba, also revoked the order of his predecessor, sending the case once morest Duran to Spain.
In Official Letter No. 700013722925, sent to the General Coordinator of International Legal Cooperation in Criminal Matters of the Department of Asset Recovery and International Legal Cooperation (DRCI) of the Ministry of Justice and Public Security, Appio explained:
“I address Your Lordship to communicate the revocation of the decision rendered in event 41 of the present proceeding, through which it was determined the partial transfer to the authorities of the Kingdom of Spain of the processing of the accusation made in these records once morest Rodrigo Tacla Duran, in the part which involves the operations related to AM offshore Vivosant Corp S/A.
Therefore, and considering a previous request by this Court (made through official letter No. 70004744622), I ask Your Excellency The necessary measures so that the present information, accompanied by the attached decision, is transmitted with the utmost urgency, in order to avoid the crime of abuse of authority, to the learned Spanish authorities”.
In this ongoing action at the 13th Federal Court of Curitiba – Penal Action No. 5019961-43.2017.4.04.7000/PR – Lava Jato prosecutors denounced alleged money laundering crimes committed by Duran. It was alleged that they were funds passed on by contractors Odebrecht and UTC, resulting from contracts signed with Petrobras. Values that, according to the complaint, were intended for public agents (kickback).
The indictment pointed out that the funds from UTC circulated in banks in Brazil, but those originating from Odebrecht contracts traveled to banks abroad, notably in Panama, Singapore and Spain.
The complaint was accepted by Moro on May 29, 2017. Duran was already on Spanish soil. His extradition was requested and denied by the government there. The court attempted to summon the accused but was unable to locate his address. This led the Federal Public Prosecutor’s Office to request that “the part of the charge relating to payments involving Odebrecht be transferred to Spanish jurisdiction”.
In the decision, Moro cited that Duran was accused of laundering around USD 12 million, “between 09/14/2010 and 10/28/2010, which were transferred to offshore accounts, one of them Vivosant Corporation SA, held at Banco Pictet & Cilt, agency from Singapore, controlled by Rodrigo Tacla Duran. Because Vivosant is headquartered in Spain, they decided to divide the Criminal Action into two, leaving the part linked to the sum that came out of Odebrecht to be appreciated in the Spanish judiciary.
Moro claimed that when he decided to relinquish his jurisdiction in this case – repeat, which he had never done before – he was supported by art. 22 of the Treaty of Cooperation and Mutual Legal Assistance in Criminal Matters between the Federative Republic of Brazil and the Kingdom of Spain.
“The Court cannot renounce its own jurisdiction”
When faced with the decision, Judge Appio warned that “once the complaint has been received and the criminal procedural relationship has been regularized and stabilized before the Brazilian justice system (13th Federal Court of the Judiciary Subsection of Curitiba) it cannot be admitted, as a amendment (principle of officiality) the waiver (even if partial) of a constitutional attribution deferred to the Brazilian Federal Public Prosecutor’s Office”.
He further expounded, without citing his predecessor at any time:
“The local court cannot waive its jurisdiction in transnational economic crimes either. The Brazilian Federal Justice has full conditions to judge and prosecute these transnational crimes”.
He also pointed out the inconsistency of the MPF in seeking support for its request in art. 21 of the United Nations Convention once morest Organized Crime, as it mentions that one of its objectives is to “centralize jurisdictions”. Appio concludes: “Well, the exact opposite was done (division of the process)”.
Finally, he recalled that the defendant was not even heard regarding the decision, which offends the due process of law since, as he said, “the constitutional guarantees of the accused ensure that he is heard before such a serious and impacting judicial decision regarding the partial waiver of Brazilian jurisdiction”.
When taking the two decisions – the revocation of the preventive detention (Judge revokes the arrest of Tacla Duran and points out abuses by Lava Jato) and the suspension of the transfer of part of the process – the new judge of the 13th Federal Court of Curitiba, in a veiled criticism of his predecessor, never mentioned in the decisions, stressed the need to respect the Constitution and the Democratic State of Law, recently threatened by Bolsonarists.
“The time has come for the Rebirth of the guarantees of the carefully cultivated constitutional principles (because they are fragile in the face of the State’s police force) and the recent historical events of January 8 in Brasilia renew their practical importance”.
The request for revocation of preventive detention was presented by Duran’s defense well before Minister Ricardo Lewandowski suspended the Criminal Action in which he is a defendant. The suspension was due to the Second Panel of the STF annulling the evidence that the Lava Jato Task Force of the Republic of Curitiba had collected in the Drousys System, used by the contractor Odebrecht.
Regardless of the suspension of the process, the decision of Appio, a recognized guarantor judge, as can be seen from his justification, would be the same – to revoke the arrest warrant. This becomes clear when, in his dispatch, he recalled that:
“Pretrial detention is an exceptional measure in the Brazilian legal system.
The presumption is INNOCENCE and not the other way around.
Inverting the presumption of innocence means, in practice, eroding the most common legal principles of a civilizing nature, imposing on ordinary citizens a duty of permanent self-vigilance that can, at best, lead to serious psychological problems for those affected by State action and, at worst, in the acceptance of a matrix State police-esque/totalitarian.
In this sense, I verify that the MPF, in its task force, would not have ensured the chain of custody of the evidence, as revealed in Vazajato’s dialogues – which had its authenticity attested by the Federal Supreme Court. As revealed, there was an underground communication network, worthy of a spy movie, through which evidence and targets to be hit were selected, as well as who would be the judges of criminal cases according to the preferences of the prosecution (which is a party to the process).
The citizen Tacla Duran, like any other person, deserves and has the constitutional right to receive from the Brazilian State a serene, apolitical and republican jurisdiction, in which the two fundamental pillars are the certainty of the content of the accusation (so that he can defend himself), as well as full exemption of State agents (judges, prosecutors, police and other actors)”.
(Posted on the author’s blog)
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