Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, BRAZIL; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.22-07833(E)
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 2841/2016*, **, ***
Communication submitted by:
Luiz Inácio Lula da Silva (represented by counsel,
Valeska Teixeira Zanin Martins, Cristiano Zanin
Martins and Geoffrey Robertson)
Alleged victim:
The author
State party:
Brazil
Date of communication:
28 July 2016
Document references:
Decision taken pursuant to rule 92 (2)–(5) of the
Committee’s rules of procedure, transmitted to the
State party on 25 October 2016 (not issued in
document form)
Date of adoption of Views:
17 March 2022
Subject matter:
Fair trial; imprisonment without a final judgment;
and prohibition of standing for election
Procedural issues:
Exhaustion of domestic remedies; compliance
with interim measures
Substantive issues:
Arbitrary arrest and detention; competent,
independent and impartial tribunal; presumption
of innocence; privacy; unlawful attacks on honour
or reputation; voting and elections
Articles of the Covenant:
9 (1), 14 (1)–(2), 17 and 25
Articles of the Optional Protocol:
1 and 5 (2) (b)
1.1
The author of the communication is Luis Inácio Lula da Silva, a national of Brazil
born on 27 October 1945. He was President of Brazil from 2003 to 2010. He claims that the
State party has violated his rights under articles 9 (1), 14 (1) and (2), 17 and 25 of the
* Adopted by the Committee at its 134th session (28 February–25 March 2022).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan,
Mahjoub El Haiba, Furuya Shuichi, Carlos Gómez Martínez, Marcia V.J. Kran, Duncan Laki
Muhumuza, Photini Pazartzis, Vasilka Sancin, José Manuel Santos Pais, Soh Changrok, Kobauyah
Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu and Gentian Zyberi.
*** An individual opinion by Committee member Duncan Laki Muhumuza (concurring) and a joint
opinion by Committee members José Manuel Santos Pais and Kobauyah Tchamdja Kpatcha
(dissenting) are annexed to the latter part of the present Views (CCPR/C/134/D/2841/2016 (Final
proceedings), annexes I–II).
United Nations
CCPR/C/134/D/2841/2016 (Initial proceedings)
International Covenant on
Civil and Political Rights
Distr.: General
24 May 2022
Original: English
CCPR/C/134/D/2841/2016 (Initial proceedings)
2
Covenant. The Optional Protocol entered into force for the State party on 25 December 2009.
The author is represented by counsel.
1.2
On 25 October 2016, in accordance with rule 92 (5)1 of the Committee’s rules of
procedure, the Special Rapporteur on new communications and interim measures, acting on
behalf of the Committee, requested that the State party submit observations relating only to
the question of admissibility.
1.3
On 22 May 2018, the Committee rejected the author’s request for interim measures
on the basis that the information provided by the author did not enable the Committee to
conclude at that time that the facts before it would put the author at risk of irreparable harm
or that they could prevent or frustrate the effectiveness of the Committee’s Views. The
Committee recalled, however, that it was incompatible with the obligations under the
Optional Protocol for a State party to take any action that would prevent or frustrate the
consideration by the Committee of a communication alleging a violation of the Covenant or
to render the expression of its Views nugatory and futile. The Committee also decided to
overturn its decision of 24 October 2016 and examine jointly the admissibility and the merits
of the communication.
1.4
On 17 August 2018, the Committee, taking note of the author’s submission of 27 July
2018, concluded that the facts before it indicated the existence of a possible irreparable harm
to the author’s rights under article 25 of the Covenant. Pursuant to rule 92 of its rules of
procedure, the Committee requested that the State party take all measures necessary to ensure
that the author enjoyed and exercised his political rights while in prison, as a candidate in the
presidential election in 2018, including appropriate access to the media and members of his
political party, and that the State party not prevent the author from standing for election, until
the pending applications for review of his conviction had been completed in fair judicial
proceedings and the conviction had become final. On 10 September 2018, the Committee
reiterated its request to the State party of 17 August 2018, recalling the State party’s
obligations under the Optional Protocol.
Facts as submitted by the author2
Context
2.1
In March 2014, a criminal investigation (later known as “Operation Car Wash”) was
opened within the federal jurisdiction of the state of Paraná, Brazil. Judge of the Thirteenth
Federal Criminal Court of Curitiba, Sérgio Moro, was the acting judge in the investigation.
Operation Car Wash uncovered evidence of corruption among the State-owned national oil
and petrol company, Petrobras, five major construction companies and various parties across
the political spectrum, namely, for providing secret campaign funds. The author denies
having known or approved of such crimes or having received any money or favours for
actions or decisions that he took during his presidency or at any other time.
2.2
The author was also investigated in the context of, among others, two cases related to
Operation Car Wash, both under the jurisdiction of Thirteenth Federal Criminal Court of
Curitiba, a case relating to construction companies that had allegedly helped the author buy
a holiday apartment and a case relating to the alleged furnishing of his property in Atibaia,
São Paulo.
Legal proceedings against the author
2.3
On 19 February 2016, Judge Moro approved a request by the Office of the Federal
Prosecutor to tap the author’s telephones, as well as those of members of the author’s family
and his lawyer. On 26 February 2016, Judge Moro specifically authorized a tap on the central
extension of the law firm of the author’s lawyer, affecting 25 lawyers and 300 clients.
1 Then rule 97.
2 The following section has been compiled from the author’s submissions and requests received by the
Committee on 28 July 2016, 17 November 2016, 25 May 2017, 5 October 2017, 29 January 2018, 16
March 2018, 6 April 2018, 27 July 2018, 4 September 2018 and 25 October 2018.
CCPR/C/134/D/2841/2016 (Initial proceedings)
3
2.4
On 2 March 2016, Judge Moro issued a bench warrant summoning the author for
questioning. At 6 a.m. on 4 March 2016, the police gained entry to the author’s house and
demanded that he accompany them to the official compound at Congonhas Airport, where he
was held for six hours. The author notes that the news that the judge had issued a bench
warrant for questioning was leaked to the media by the “prosecution apparatus (i.e. the judge,
the federal prosecutor and the federal police)”. Consequently, photographs were taken of the
author portraying him as if he were under arrest. The airport became the scene of
demonstrations and counter-demonstrations.
2.5
On 16 March 2016 at 11.12 a.m., Judge Moro sent an urgent order to the Office of the
Federal Prosecutor that the tapping of the author’s telephone should cease with immediate
effect. The author explains that the tap continued illegally, however, and was in place when
he held a telephone call with then President of Brazil, Dilma Rousseff, at 1.32 p.m. and
discussed with her matters related to his appointment as Chief of Staff. The author adds that,
although illegally intercepted, Judge Moro released to the media information on the content
of the call that afternoon, along with that of other calls between the author, his wife, his
lawyers and other members of his family. On 17 March 2016, Judge Moro issued a decision
confirming the legality of both the telephone tap and the disclosure of the content of the call
between the author and the President.
2.6
On 22 March 2016, Teori Albino Zavascki, Justice of the Supreme Federal Court, in
the context of a complaint submitted by the President, granted a preliminary injunction
suspending the effects of Judge Moro’s decision authorizing the disclosure of the
conversations between the President and the author. On 13 June 2016, Justice Zavascki
overturned Judge Moro’s decision of 17 March affirming, inter alia, that the latter had no
jurisdiction to lift the confidentiality of the conversation with the President, and declared its
content null for the purposes of the investigations. On 11 July 2016, the author filed a motion
for bias (exceção de suspeição), requesting that Judge Moro recuse himself, which was
rejected by the former judge himself on 22 July.3
2.7
On 4 March 2016, the Association of Federal Judges of Brazil, of which Judge Moro
is a member, issued a statement indicating that he, as well as the prosecutors and the police,
had “acted within strict legal and constitutional limits” and would “continue to act in
compliance with the law and the Constitution”. On the same day, the National Association
of Federal Prosecutors issued a press release noting that the bench warrant against the author
was fully lawful. On 29 July 2016, the Association of Federal Judges issued a press release
condemning the author’s petition to the Committee, saying that it had “unfounded laments”,
and, on 13 December 2016, the President of the Association appeared in the media praising
Judge Moro as “an example to Brazil”. On 15 December 2016, the National Association of
Federal Prosecutors issued a press release attacking the author for suing Deltan Dallagnol,
the lead prosecutor of Operation Car Wash, for defamation.
2.8
On 14 September 2016, the prosecutors of the investigations related to Operation Car
Wash had appeared on television for 90 minutes setting out their case for the author’s guilt
“beyond reasonable doubt”. 4 After the event, the author sued Prosecutor Dallagnol for
defamation.
3 The author filed a total of four such motions, all of which were rejected by Judge Moro himself.
4 The author provides a transcript of the television broadcast, which includes such phrases as: “These
pieces of evidence demonstrate that Lula was the big general commanding the practice of crimes with
powers to determine how it worked and, if he wanted, to order its interruption.”; “Now, who did have
power to distribute, and effectively has distributed, positions for fund-raising purposes? Lula. Only
Lula’s decision-making power enabled the strategy of corrupted governability. Lula was at the top of
the power pyramid, appointing high-level positions in the federal public administration. In addition,
during the period in which the criminal scheme was structured to the detriment of Petrobras, Lula
provided the high positions in the federal public administration.”; “Without Lula’s decision-making
power, this scheme would be impossible.”; “It is inconceivable that a party leader such as Lula did
not take part in [the corruption scheme] and, more than that, that he was not in charge of these
schemes that reveal a permanent and unique way of obtaining public resources in the name of the
Workers’ Party”; “Once more, this makes Lula the common and necessary link of the criminal
scheme.”
CCPR/C/134/D/2841/2016 (Initial proceedings)
4
2.9
On 22 September 2016, the Special Court of the Federal Regional Court of the Fourth
Region rejected a disciplinary procedure motion, against Judge Moro, filed by other
defendants in the Operation Car Wash investigations. According to the Court, given that
Operation Car Wash was an “unprecedented case”, it brought “unprecedented problems” and
demanded “unprecedented decisions”; it was “not possible to condemn [Judge Moro] for
adopting preventive measures against the obstruction of justice”.5
2.10
On 9 March 2017, the Federal Regional Court dismissed a criminal complaint brought
by the author and his family against Judge Moro on the basis that the question of
administrative sanctions against the judge had already been decided on 22 September 2016.
The author’s appeals before the Superior Court of Justice and the Supreme Federal Court
were rejected.
2.11
On 12 July 2017, Judge Moro convicted the author for corruption and money-
laundering and sentenced him to nine years’ imprisonment. By November 2017, the author’s
motions for bias against Judge Moro, which had been rejected on appeal by the Federal
Regional Court, had also been rejected by the Superior Court of Justice. 6 The Supreme
Federal Court rejected appeals on two of the motions in December 2017.7 On 24 January
2018, the Federal Regional Court confirmed the author’s conviction on appeal and increased
the prison sentence to 12 years and one month’s imprisonment. The author appealed that
decision on the merits. On 2 February 2018, the author filed a writ of habeas corpus before
the Supreme Federal Court arguing that, according to the Constitution, a convicted person
should not serve a prison sentence until the judgment was final.
2.12
On 5 April 2018, the Supreme Federal Court rejected the author’s writ of habeas
corpus and indicated that there was no bar to his imprisonment, despite the fact that his appeal
was still pending.8 Within a few hours of the announcement of the decision, Judge Moro
issued an arrest warrant requiring the author to be taken into custody to serve his sentence.
On 7 April 2018, the author was taken to the prison in Pinhais, Curitiba.
2.13
On 23 April 2018, the author filed a special appeal with the Superior Court of Justice
and an extraordinary appeal to the Supreme Federal Court, both of them challenging his
detention order. According to the author, although the Federal Regional Court could have
granted leave to appeal in a matter of days, it did so only on 22 June 2018, and only granted
leave to appeal to the Superior Court of Justice. The author requested an urgent hearing in
that Court, but his request was not examined until after the judiciary recess had begun on 26
June 2018.
2.14
On 6 July 2018, the author’s writ of habeas corpus came to an appellate judge of the
Federal Regional Court assigned to hear all such cases in the court’s recess period, Rogério
Favreto. At 9.05 a.m. on 8 July 2018, Judge Favreto granted the author’s writ of habeas
corpus and ordered his provisional release. In his decision, Judge Favreto noted the following:
(a) the author’s presidential candidacy was a new fact relevant to the question of whether he
should be incarcerated before his appeal was decided by a court; (b) the 6 to 5 Supreme
Federal Court decision allowed for the author’s incarceration but did not mandate it; and (c)
Judge Moro had given no reasoning for the decision to incarcerate the author. The release
order was not implemented by the relevant authorities, and the author brought that fact
immediately to Judge Favreto’s attention. Enquiries soon revealed that Judge Moro, who was
on vacation, had given an order by telephone that the author should not be released. At 12.44
p.m., Judge Favreto reissued his release order and directed that it be immediately
5 Federal Regional Court of the Fourth Region, case No. 0003021-32.2016.4.04.8000/RS, decision of
22 September 2016.
6 The Federal Regional Court denied the first three motions on 26 October 2016 and the fourth one on 8
March 2017. The Superior Court of Justice rejected the appeals against the rejection of the motions
for bias on 22 September 2017, 2 October 2017, 19 October 2017 and 6 November 2017.
6 The Federal Regional Court denied the first three motions on 26 October 2016 and the fourth one on 8
March 2017. The Superior Court of Justice rejected the appeals against the rejection of the motions
for bias on 22 September 2017, 2 October 2017, 19 October 2017 and 6 November 2017.
7 By June 2018, the review of the other two motions had been rejected by the Supreme Federal Court.
8 In the minority opinion on the ruling, it was noted that the Constitution established that a defendant
could only be incarcerated after a judgment had become final.
CCPR/C/134/D/2841/2016 (Initial proceedings)
5
implemented. At 2.13 p.m., João Pedro Gebran Neto, one of the three judges who had denied
the author’s appeal, ordered that Judge Favreto’s decision be vacated. At 4.12 p.m., Judge
Favreto ruled that Judge Gebran Neto had no jurisdiction, given that Judge Favreto was the
authorized recess judge. At 5.53 p.m., the Office of the Federal Attorney appealed to Carlos
Eduardo Thompson Flores, Chief Justice of the Federal Regional Court, who, at 7.30 p.m.,
ruled that Judge Gebran Neto was the competent authority, overruling the decision to release
the author.
2.15
On 23 August 2018, the author submitted a request to the Superior Electoral Court
asking that it ensure that public media companies give the author, who was leading in voting
intention polls, equal treatment in their coverage of electoral campaigns, in line with the
applicable electoral law. On 24 August 2018, however, the Court denied the request. The
author filed an appeal before the same court on 27 August 2018, and the Court denied it the
next day.
2.16
On 1 September 2018, in disregard of the Committee’s request for interim measures,
the Superior Electoral Court rejected the author’s candidacy for the presidency, prevented
him from campaigning through radio, television and the Internet and ordered the party to
appoint a substitute candidate within 10 days. The result of that order was that the author
could not even be mentioned in voting intention polls from then on.9 On 11 September 2018,
the Workers’ Party was compelled to withdraw the author’s candidacy and put forward a
replacement candidate.
2.17
On 28 September 2018, a Supreme Federal Court Justice, Enrique Ricardo
Lewandowski, authorized an interview with the author in prison by a newspaper columnist,
after a complaint had been filed by the newspaper arguing censorship of the press. On the
same day, Luis Fux, then acting Chief Justice of the Supreme Federal Court, admitting a
motion filed by a political party, suspended Justice Lewandowski’s decision, prohibited the
interview and ordered that, if already conducted, its release must be censored. On 1 October
2018, Justice Lewandowski issued another decision to authorize the interview, on the basis
that the political party that had filed the motion did not have the procedural legitimacy and
that his decision was not an injunction subject to possible suspension, but a decision on the
merits. On the same day, José Antonio Dias Toffoli, a Chief Justice of the same Court,
suspended Justice Lewandowski’s second decision, indicating that the decision rendered by
Chief Justice Fux should be complied with until the subsequent deliberation of the Supreme
Federal Court en banc.
Complaint
Bench warrant of 2 March 2016
3.1
The author states that article 260 of the Code of Criminal Procedure of Brazil sets out
a precondition for issuing a bench warrant, namely, that if the defendant refuses to give
testimony in the interrogation, the competent authority may order that the defendant be
compelled to attend the investigating authority. He alleges that, as confirmed by case law,
that compulsory procedure, which deprives the suspect of his liberty, can only be ordered by
a judge if the defendant has explicitly refused to give testimony. He adds that the judge must
first subpoena the potential defendant, and only if he fails or refuses to attend, can a bench
warrant be issued.
3.2
In the present case, however, Judge Moro issued the bench warrant on 2 March 2016,
for execution on 4 March, without ever having subpoenaed the author, claiming that a bench
warrant was necessary to secure the author’s safety. Nevertheless, the author alleges that the
legal precondition for the issuance of the warrant was never fulfilled and that therefore the
question of public order could not arise. Although the period during which he was
compulsorily detained was only six hours, the event and the demonstration that it provoked
had enormous symbolic effect, inter alia, because it conveyed the message that he was hiding
from justice. The author explains that that amounted to a violation of article 9 (1) of the
9 The author filed two supersedeas motions before the Supreme Federal Court, to request that the
extraordinary appeal have suspensive effect, but both were rejected.
CCPR/C/134/D/2841/2016 (Initial proceedings)
6
Covenant, because compulsory transportation for questioning also constituted a deprivation
of liberty. The author adds that the Committee has held that an eight-hour detention was
disproportionate and therefore arbitrary.10
Disclosure of various telephone intercepts
3.3
The author explains that Judge Moro’s release to the media of various transcripts and
audio recordings of telephone intercepts was carried out in contravention of articles 8 and 10
of Law No. 9,296/96, which regulates tapping. He alleges that the disclosure of that material
was in no conceivable way in the public interest and was done out of malice with the design
of publicly humiliating and intimidating the author, in violation of his rights under article 17
of the Covenant. He adds that the State party was recently condemned by the Inter-American
Court of Human Rights for allowing the disclosure of secret recordings of a personal nature.11
The author claims that Judge Moro, both in the light of domestic law and that jurisprudence,
should have kept such intercepts confidential, at least until a ruling on their relevance and
admissibility at trial.
3.4
The author adds that releasing the conversation between him and the President was
even more clearly illegal, given that that conversation had been intercepted even after Judge
Moro himself had requested that the telephone tapping be discontinued. Therefore, in
violation of his own order, Judge Moro decided not only to keep the intercepted conversation
but to release it to the media. He justified the release on the grounds of public interest,
however, the author’s appointment as Chief of Staff had already been announced to the public
by the Office of the President on the morning of 16 March 2016, before the intercepted
conversation and the disclosure of it. The author alleges that the disclosure was designed to
create a public political outcry and to create strong pressure to reverse the author’s
appointment, giving the impression that the author had been anxious to escape apprehension
because he was guilty.
3.5
The author contends that, although the Supreme Federal Court overturned Judge
Moro’s decision on the legality of the wiretap, no action has been taken against him. Despite
several complaints by citizens, the National Court Council has not taken any action, nor have
other prosecutorial authorities, who should have acted ex officio knowing that Judge Moro
had committed public action crimes.12
Taps of the author’s lawyers’ telephones and disclosure of the intercepts
3.6
The author alleges that the tapping of his lawyers’ telephones and the subsequent
selective disclosure of certain intercepted conversations, covering his lawyers’ advice about
various aspects of issues with Judge Moro, also violated his rights under article 17 of the
Covenant. According to Judge Moro, the telephone tapping was carried out because there
was evidence of involvement of one of the author’s lawyers in the purchase of the author’s
property in Atibaia. Roberto Teixeira, the lawyer in question, was therefore an investigated
party, not a lawyer. The author alleges that that is a false distinction, given that Mr. Teixeira
remained his lawyer at all times and that there could be no suspicion derived from his
involvement as a lawyer in a property purchase, unless the transaction itself was fraudulent
or illegal. The author adds that no such evidence existed, nor did it emerge from the
transcripts of the intercepted telephone calls. The author alleges that it was therefore a clear
breach of attorney-client privilege which, as has been recognized by the Committee, is
intended to protect the client.13
10 Spakmo v. Norway (CCPR/C/67/D/631/1995), para. 6.3.
11 Inter-American Court of Human Rights, Escher v. Brazil, judgment of 6 July 2009.
12 The author alleged that the Supreme Federal Court should have submitted a copy of the case to the
Office of the Federal Attorney, pursuant to article 40 of the Code of Criminal Procedure, which sets
out that when judges or courts verify in records and documents which are known to them the
existence of a public action crime, they must send to the Office of the Federal Attorney the copies and
documents needed to file a charge.
13 Van Alphen v. Netherlands (CCPR/C/39/D/305/1988), para. 5.7.
CCPR/C/134/D/2841/2016 (Initial proceedings)
7
Absence of an impartial tribunal
3.7
The author maintains that, when deciding on the motion for bias, Judge Moro relied
on the standard procedure that permits a judge who renders a decision at the investigative
stage to sit as the trial judge. The author explains that the Code of Criminal Procedure in
Brazil does not effectively differentiate between the stages of investigation and trial. The
judge of the court of first instance is responsible for authorizing prosecution requests for
extraordinary measures,14 for approving the criminal charges laid by the prosecution and for
trying the case without a jury15 and without other judges. The author alleges that, whereas the
procedure itself is not a breach of article 14 of the Covenant, according to the Committee,
the involvement of judges in preliminary proceedings wherein they form an opinion about a
defendant is incompatible with the requirement of impartiality.16 He adds that the Committee
has also asserted that judges must not only be impartial, they must also be seen to be
impartial.17 He alleges that it is relevant that the public perception was that Judge Moro would
arrest and convict the author, which he eventually did.
3.8
The author explains that the indications of Judge Moro’s partiality included, among
other things: (a) deliberately issuing an unlawful bench warrant to detain the author
unnecessarily and in a public manner; (b) tapping his telephones and those of his family and
unlawfully and maliciously releasing transcripts to the media, in particular of the calls with
the President; and (c) intercepting and releasing to the media recordings and transcripts of
confidential calls with his lawyer and making allegations of criminal conduct against his
lawyer. He adds that Judge Moro had repeatedly accepted invitations to attend and speak at
events run by groups that were politically hostile towards the author and that had called
publicly for his arrest and conviction,18 and he attended as guest of honour the launch of a
book about the Operation Car Wash investigation, which portrayed Judge Moro in a
hagiographic light and defamed the author by claiming that he was guilty of corruption. The
author highlighted that the perception of Judge Moro’s actions could not be divorced from
his much publicized theory of the crusading proactive “attack judge”, which he advanced in
his public lectures and publications.19 The author contends that, because Judge Moro used his
position in public office to advance arguments in which he prejudged the author’s guilt, he
disqualified himself as an impartial judge in the proceedings against the author.
Risk of indefinite pretrial detention
3.9
When submitting his original communication, and before he was imprisoned after the
Federal Regional Court’s confirmation of the conviction, the author had argued that he was
at risk of indefinite pretrial detention, in violation of article 9 of the Covenant. He explains
that he had been formally identified as a suspect in a number of investigations and was
undergoing a procedure that would in all likelihood lead to his pretrial arrest and indefinite
detention without any effective remedy. He explains that article 312 of the Code of Criminal
Procedure provides that preventive detention may be ordered to maintain public order or
economic order, for the convenience of a criminal investigation or to secure the enforceability
of the criminal law, whenever there is evidence of a crime and sufficient indication of
authorship. He claims that the “maintenance of public order”, the exception under which
most Operation Car Wash suspects had been detained, is vague and must be confined to
emergency situations. Similarly, the “convenience” of a criminal investigation should be
interpreted as a situation where the detainee is likely, if released, to frustrate the investigation
by fleeing or interfering with witnesses, or can be shown from his or her criminal record or
14 Such as search and seizure warrants, bench warrants and telephone tapping.
15 Except in intentional crimes against life.
16 Larrañaga v. Philippines (CCPR/C/87/D/1421/2005), para. 7.9. See also European Court of Human
Rights, Hauschildt v. Denmark (application No. 10486/83) judgment of 24 May 1989.
17 Lagunas Castedo v. Spain (CCPR/C/94/D/1122/2002), para. 9.7.
18 Among others, the Brazilian Social Democratic Party, Editora Abril (a paper that has repeatedly
called the author corrupt and demanded his arrest and conviction) and Veja magazine (which
published on its front cover a doctored picture of the author in a convicted prisoner’s uniform).
19 The author cites Judge Moro’s publication “Considerações sobre a Operação Mani Pulite”, Revista do
CEJ, Brasília, No. 26, July/September 2004, in which he uses the term juízes de ataque (attack
judges).
CCPR/C/134/D/2841/2016 (Initial proceedings)
8
recent intentions to be likely to commit further serious crimes. The author claims that article
312 of the Code does not comply with article 9 of the Covenant, because it lacks the strict
criteria 20 regulating detention for the purposes of obtaining testimony, which is an
exceptional measure that must be carefully and precisely regulated. 21 He adds that the
Committee has condemned States that have detained defendants to force them to cooperate
with investigations.22 The author claims that, although he was never put in pretrial detention,
he should be considered a victim according to the Committee’s jurisprudence because there
was a “real risk” of a violation of his rights under the Covenant.23
Breaches of the presumption of innocence
3.10
The author alleges that the virulent media campaign fostered by Judge Moro, the
Office of the Federal Prosecutor and the police amounted to a breach of his right to the
presumption of innocence, in violation of article 14 (2) of the Covenant. He recalls that, in
the Committee’s general comment No. 32 (2007), it noted that it was a duty for all public
authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making
public statements affirming the guilt of the accused.24 He adds that that principle was applied
by the Committee in a case where public assertion of guilt by a high ranking prosecutor at a
public meeting, which was given wide media coverage, amounted to a breach of article 14
(2).25 In the same vein, the author notes that the Committee has found that making extensive
and adverse pretrial comments through State-directed media26 was in violation of that right,
which highlights the significance of the link between adverse media coverage and the State.
3.11
The author alleges that many Operation Car Wash suspects were held in detention
until they entered into plea bargains and that the details of those plea bargains, whenever they
mentioned him or his associates, were leaked to the media. The media then deployed the
leaked information, no matter how unreliable, to add to his public demonization and the
expectation that he would be found guilty of corruption. He alleges that the State party’s
media were all hostile towards him. Although he was formally a subject of investigation, the
State party’s legislation offered no protection to his honour and reputation during that period,
a protection which could have been afforded him through contempt of court laws preventing
the media from prejudging his guilt. He alleges that Judge Moro did nothing to discourage
the slander, because of his notion that public opinion must demonstrate support for
prosecutions.27
3.12
The author alleges that the federal prosecutors involved in his cases have continuously
made public statements asserting his guilt.28 He highlights, as examples, the 90-minute press
conference held on September 2016 and the book by Prosecutor Dallagnol, entitled A Luta
contra a Corrupção (The Fight against Corruption), portraying the author as guilty of the
crimes of which he was accused. He claims that the only remedy available against such abuse
was to lodge a complaint with the National Council of Prosecutors, which he filed on 31 May
2016. However, no action was taken on the grounds that the Council could not reproach a
20 Campbell v. Jamaica (CCPR/C/47/D/307/1988), para. 6.4.
21 The author cites, inter alia, Inter-American Court of Human Rights, Usón Ramírez v. Venezuela,
Series C, No. 207, para. 144.
22 See Van Alphen v. Netherlands.
23 Kindler v. Canada (CCPR/C/48/D/470/1991), para. 13.2.
24 Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and
to a fair trial, para. 30.
25 Gridin v. Russian Federation (CCPR/C/69/D/770/1997), para. 8.3.
26 Saidova v. Tajikistan (CCPR/C/81/D/964/2001), para. 6.6.
27 Among other things, the author cites a lecture held in São Paulo in which Judge Moro said: “These
cases involving severe corruption crises, [and] powerful public figures, only proceed if supported by
the public opinion and the organized civil society. And this is your role.”
28 As an example, the author provides the following statements made on the radio by one of the heads of
the investigation, federal prosecutor, Carlos Fernando dos Santos Lima. He allegedly told radio
station Jovem Pan on 27 March 2016: “We clearly see payments by construction companies
benefitting the former President and his family ... others who cooperated (i.e. by plea bargains)
confirm the former President already knew about the scheme and approved it ... And he also knew
about everything, he had the power and ability to hinder the result ... so in this sense he was not just
being part of it, and that’s why saying he ruled over it is correct. He is the author of the crime.”
CCPR/C/134/D/2841/2016 (Initial proceedings)
9
member of the Office of the Federal Attorney other than by conducting an internal
investigation and merely offering recommendations to the prosecutors involved.
Right to vote and right to be elected
3.13
The author submits that the State party violated his rights under article 25 (b) of the
Covenant, both to stand as a candidate in the presidential election and to vote, given that
Supplementary Law No. 135/2020, also known as the Clean Slate Law, institutes an eight-
year ineligibility period for political agents convicted by a collegiate body for committing
specific crimes, among them those for which the author was convicted.29 The author alleges
that the law is both unconstitutional and incompatible with the Covenant, because its
application amounts to a violation of the right to be presumed innocent. He notes that the
Committee has already found a violation of the right to vote and the right to be elected in a
case where the author’s imprisonment resulted from a proceeding in which his due process
guarantees were not respected.30 He alleges that, in his case, his imprisonment was the result
of criminal proceedings without due process guarantees and that it was a criminal process
instituted against him in order to prevent him from standing as a candidate in the presidential
election. He notes that nearly 1,400 politicians who had had their registrations denied by the
electoral courts in 2018, and had appeals pending, were allowed to continue campaigning for
that year’s election until the decisions on their appeals were final.
Exhaustion of domestic remedies
3.14
The author notes that it is the Committee’s constant jurisprudence that the rule of
exhaustion applies only to the extent that those remedies are effective and available.31 He
cites the Committee’s jurisprudence according to which remedies must offer a reasonable
prospect of redress32 and must not be unreasonably prolonged33 and that internal reviews by
professional supervisory bodies for judges and prosecutors do not constitute a remedy that
must be exhausted.34
3.15
With regard to the bench warrant, the author claims that he was not given the
opportunity to challenge it at the time and that the damage done to him by the publicity was
irreversible. He adds that any later complaint against Judge Moro would have been sent for
“internal investigation” by a council of judges, which would not have resulted in an effective
remedy. He also claims that any subsequent constitutional action would have been met with
the argument that the litigation was futile, because the case was in the past and the damage
was irreversible. The author argues that he could have sued for civil damages, but the trial
would have been prolonged.
3.16
Regarding the two claims involving the disclosure of intercepts obtained through
telephone tapping, the author argues that there was no domestic remedy available other than
a civil action, which would take years to come to trial. Although Justice Zavascki of the
Supreme Federal Court confirmed the illegality of the disclosure of the contents of the call
involving the President on 13 June 2016, he provided no remedy or redress to the author,
accepting that the effects of the illegality were “irreversible”. The author claims that there
was no effective way that he could provoke action by the Government or by the National
Justice Council.
3.17
With regard to Judge Moro’s lack of impartiality, the author claims that there was no
effective way in which judge Moro could be recused for bias. The appropriate motion to
recuse could only be filed before the judge himself, or by a petition directed to the Attorney
General who had himself, in his role as federal prosecutor, accused the author of being guilty.
29 In the author’s case, the collegiate body was the Federal Regional Court, which acted as the court of
appeal with regard to the author’s conviction.
30 Scarano Spisso v. Bolivarian Republic of Venezuela (CCPR/C/119/D/2481/2014), para. 7.12. The
author also refers to the Committee’s general comment No. 25 (1996) on participation in public
affairs and the right to vote, para. 14.
31 CCPR/C/113/4, para. 49.
32 Patiño v. Panama (CCPR/C/52/D/437/1990), para. 5.2.
33 Ičić and Ičić v. Bosnia and Herzegovina (CCPR/C/113/D/2028/2011), para. 8.3.
34 Yachnik v. Belarus (CCPR/C/111/D/1990/2010), para. 8.3.
CCPR/C/134/D/2841/2016 (Initial proceedings)
10
He claims that, in any event, the Attorney General merely had the discretion to initiate
government action, which did not amount to an effective remedy. All possible motions had
to be submitted to Judge Moro, who rejected them. The remedies were not efficient to
guarantee a trial with an impartial judge, because they hinged on the decision of the very
judge to whom objection was taken. The author appealed the motions all the way to the
Supreme Federal Court, and they were denied.
3.18
With regard to the risk of pretrial detention, the author argues that, as a pretrial
detainee, he had no right to habeas corpus or to access to a court to challenge his detention
other than by going through Judge Moro. He claims that, given that domestic law does not
confine pretrial detention to cases where there is likelihood of flight or interference with
evidence, and that pretrial detention was used in order to obtain a confession (i.e. a plea
bargain), there was no effective remedy available to prevent it.
3.19
With regard to his right to the presumption of innocence, the author claims that the
State party took no measures to prevent the leaks and disclosure of information to the media.
He adds that, owing to the lack of contempt of court laws in Brazil, there were no effective
remedies to prevent the media from prejudging his guilt on the basis of those leaks. He claims
that the complaints to the National Council of Prosecutors about the behaviour of the federal
prosecutor in publicly alleging that the author was guilty were merely sent for “internal
investigation”. He argues that they cannot be considered effective remedies, given that they
are administrative and discretionary disciplinary proceedings.
State party’s non-compliance with the Committee’s request for interim measures
3.20
The author explains that the State party failed to comply with the request for interim
measures issued by the Committee. He claims that the State party clearly had the intention of
making the violations to his political rights irreversible and of making it impossible for a
potential decision by the Committee to be complied with. He claims that, by acting to prevent,
frustrate or render the examination by the Committee nugatory and futile, the State party has
committed grave breaches of its obligations under the Optional Protocol.35
State party’s observations on admissibility and the merits36
Non-exhaustion of domestic remedies
4.1
The State party alleges that the author failed to invoke and exhaust all available
domestic remedies prior to filing his individual communication before the Committee and
that the Committee is therefore barred from examining the communication pursuant to article
5 (2) (b) of the Optional Protocol. It claims that the European Court of Human Rights has
established in its jurisprudence that the exhaustion of domestic remedies is normally
determined with reference to the date on which an application is lodged, accepting exceptions
when the last stage is reached, shortly after the lodging of the application but before the
determination of admissibility.37
4.2
The State party explains that the author’s several submissions show that he has been
gradually making use of the available domestic remedies since filing his communication with
the Committee, which demonstrates that he had not properly exhausted them before resorting
to the Committee. The State party submits that the author’s claims relate to two ongoing
criminal proceedings in Curitiba, which were pending before the court of first instance at the
time of filing of the author’s communication. The State party explains that, should a
conviction be reached – as did happen subsequently – the author would be entitled to appeal
against both convictions, in accordance with article 593 (I) of the Code of Criminal Procedure,
appeals which would stay his conviction sentence. The State party also explains that, if faced
35 Maksudov et al v. Kyrgyzstan (CCPR/C/93/D/1461,1462,1476&1477/2006).
36 The following section has been compiled from the State party’s submissions received by the
Committee on 27 January 2017, 29 September 2017, 3 April 2018, 11 May 2018, 9 and 13 September
2018 and 21 November 2018.
37 See, inter alia, European Court of Human Rights, Baumann v. France, (application No. 33592/96),
judgment of 22 August 2001, para. 47; and Karoussiotis v. Portugal, (application No. 23205/08),
judgment of 1 February 2011, para. 57.
CCPR/C/134/D/2841/2016 (Initial proceedings)
11
with a conviction, the author would be entitled to other ordinary and extraordinary appeals
before the Superior Court of Justice and the Supreme Federal Court, as well as internal
appeals within those courts, in accordance with articles 619, 105 and 102 of the Code. The
State party alleges that the author had also filed lawsuits for damages but had failed to wait
for the decision of the court of first instance before he filed his communication before the
Committee.
4.3
The State party adds that, even at the moment of filing of its observations on
admissibility and the merits, the last stages of available domestic remedies had still not yet
been reached.38 It alleges that, in the light of the myriad of domestic remedies filed by the
author after submitting the communication before the Committee, and given the fact that
some important appeals were still pending, it should be concluded that domestic remedies
were not exhausted.
4.4
The State party adds that the author tried to depict the domestic system of justice as a
whole as a biased system in which there would be no prospect of real relief to be granted. It
alleges that the suggestion of a general partiality among national judges towards the author
is a subjective illation. It therefore requests that the Committee declare the author’s
communication inadmissible for lack of exhaustion of domestic remedies.
Bench warrant of 2 March 2016
4.5
The State party explains that the bench warrant did not subject the author to arbitrary
arrest or detention because both the request from the Office of the Federal Prosecutor and the
decision by the court were fully reasoned as required by domestic law. It adds that the warrant
was a purely technical measure with no associated political nuance or intention, which did
not involve any prejudgment of criminal liability. The State party explains that, as clarified
at the time by the Operation Car Wash Task Force,39 the measure was ordered in compliance
with articles 201, 218, 260 and 278 of the Code of Criminal Procedure and the judicial
authority’s general power to grant precautionary measures, which were at the time of issuance
of the bench warrant considered constitutional by the Supreme Federal Court.
4.6
The State party contends that the bench warrant was necessary and justified by the
circumstances, because public security was at stake. On 17 February 2016, the Prosecution
Service of the State of São Paulo had scheduled depositions of the author and his wife. The
author tried to avoid the investigative act by filing a writ of habeas corpus before the Court
of São Paulo arguing that it would generate a great risk of protests and conflict. Neither the
author nor his wife attended the depositions, and protests still took place in the area
surrounding the courthouse. The State party alleges that that event was an important factor
that motivated the issuance of the bench warrant against the author, with the aim of
guaranteeing the overall tranquillity of the investigative act.
4.7
The State party argues that, when deciding on the motion for bias, Judge Moro
explained that an intercepted telephone call between the author and the President of the
Workers’ Party on 27 February 2016 had shown that the author had had knowledge of a
scheduled search and seizure and had revealed that he was contemplating “assembling some
congressmen to surprise them”. The State party notes that, in the light of those conversations,
the police had taken steps to avoid risks to both the investigation and the security officers’
moral and physical integrity. The State party alleges that, under the circumstances, the court
could have opted to issue an even more severe legal measure, such as temporary detention or
preventive arrest. However, in addition to having opted for a less severe measure, the court
asserted in its order that the use of handcuffs and filming of the author were not allowed,
expressly guaranteed his right to remain silent and the presence of his attorney and indicated
that the order was only to be used should the author refuse to accompany the police.
4.8
The State party affirms that the author’s allegations that the prosecution illegally
publicized the investigative act has no credibility. Given that the measure was issued
38 The State party notes the several appeals before the Superior Court of Justice and the Supreme
Federal Court that were still pending at the time.
39 See www.mpf.mp.br/pr/sala-de-imprensa/noticias-pr/nota-de-esclarecimento-da-forca-tarefa-lava-
jato-do-mpf-em-curitiba.
CCPR/C/134/D/2841/2016 (Initial proceedings)
12
precisely to guarantee that the deposition would take place in an atmosphere of tranquillity,
its successful execution relied on strict compliance with the necessary secrecy. In fact,
contrary to the author’s allegations, the influx of people only began after the author’s counsel
came to know of the measure. The State party concludes that it was the author’s counsel, and
not the prosecution, who intended to disrupt the deposition.
Disclosure of various intercepts of telephone conversations
4.9
The State party explains that an interference with the right to privacy under article 17
of the Covenant must not be arbitrary or unlawful. It recalls that, according to the
Committee’s general comment No. 32 (2007), even in cases in which the public is excluded
from the trial, the judgment, including the essential findings, evidence and legal reasoning,
must be made public, except where the interest of juvenile persons otherwise requires, or the
proceedings concern matrimonial disputes or the guardianship of children.40
4.10
The State party explains that the decisions concerning all taps on telephones, which
were requested by the Office of the Federal Prosecutor, were widely substantiated and in line
with domestic law. It alleges that the reasoning in the initial decision explains the
indispensability of the measure for the elucidation of serious crimes that had emerged from
considerable evidence, as did the subsequent decisions that extended and expanded the
measures taken. The State party adds that the lifting of confidentiality was also motivated
and carried out to prevent the obstruction of justice and because of the public interest for a
“healthy public scrutiny [of] the performance of the Government and criminal justice
itself”.41 According to Judge Moro, “there is no defence of privacy or social interest that
justifies the maintenance of secrecy in relation to evidentiary elements related to the
investigation of crimes against the Government”.42 Therefore, the disclosure of the telephone
intercept granted by the judge, in a decision widely substantiated, raises no issues under
article 17.
4.11
The State party adds that the Supreme Federal Court determined the invalidation of
the communication between the author and the President, which demonstrates the possibility
of reviewing judicial decisions and the independence of the organs involved in the author’s
criminal process. It asserts that overturning a judicial decision that was rendered in a technical
way constitutes an act within the judicial procedure and does not imply recognition of
disciplinary or criminal fault, which did not occur in the author’s case.
Taps of the author’s lawyers’ telephones and disclosure of the intercepts
4.12
The State party alleges that, with regard to the tapping of the author’s lawyers’ office,
the telephone number subject to the tap was registered in the name of a company that
belonged to the author. That fact was confirmed by the Federal Regional Court, which, upon
learning that the telephones had been used by third parties, decided that the evidence would
not be used for any purpose. In addition, the recorded audio recordings were destroyed. The
State party cites Judge Moro’s decision on the motion for bias, according to which “there are
no records of [intercepted] conversations … of lawyers other than Roberto Teixeira himself,
not even conversations with content related to the right of defence”.
4.13
With regard to the tapping of Mr. Teixeira’s mobile phone, the State party affirms that
he was himself investigated and that a criminal complaint was filed against him for the
alleged perpetration of money-laundering crimes. The State party cites Judge Moro’s
decision, according to which Mr. Teixeira was not listed as one of the defence attorneys of
the author and that “if the attorney himself gets involved with illegal conduct, which is the
object of the investigation, there is no immunity to investigation or tapping”.43
40 Committee’s general comment No. 32 (2007), para. 29.
41 Judge Moro’s decision of 16 March 2016, as cited in his letter to the Supreme Federal Court of 29
March 2016.
42 Ibid.
43 Ibid.
CCPR/C/134/D/2841/2016 (Initial proceedings)
13
Absence of an impartial tribunal
4.14
The State party alleges that the participation of a judge in public events, such as book
releases and artistic exhibitions, does not entail a breach of the duty of impartiality or an
attempt at self-promotion. It adds that awarding prizes as a result of recognition of the
exercise of a professional activity is a legitimate and common practice in the field of law and
other areas of human knowledge.
4.15
With regard to the allegations of lack of impartiality due to the fact that the trial judge
decided on requests for provisional measures during the pretrial stage, the State party affirms
that the role of the judge in the preliminary investigation was of a passive nature. It explains
that the investigative judge evaluates the legality of requests presented by the parties and the
police authorities but is not allowed to actively conduct investigations himself. The decisions
are therefore taken with a low degree of judicial cognizance and do not bind the judge during
the trial of the case. The State party cites Judge Moro’s decision, according to which
“although deliberations mean, on judicial cognizance, some type of consideration of the case,
what is relevant is that the judge, even after taking favourable or unfavourable decisions in
favour of one of the parties in the lawsuit, keep an open mind to change his mind during the
trial, after the adversarial phase and the arguments”.44
4.16
The State party notes that, in Larrañaga v. Philippines, the trial judge and two
Supreme Federal Court judges were involved in the evaluation of the preliminary charges
against the author and that the involvement was such that it allowed them to form an opinion
on the case prior to the trial and appeal proceedings. The State party adds that the European
Court of Human Rights has asserted that the mere fact that a trial judge had also made pretrial
decisions in a case was not in itself a vice of partiality.45
4.17
However, according to the State party, in its legal system, the judge never takes part
in the investigation stage and does not participate in the investigative strategy designed by
prosecutors and police officers. The judge therefore does not form an opinion on the case
prior to the trial, but only guarantees the defendants’ right to judicial supervision of acts
carried out by police and prosecutors. The State party explains that that was confirmed by
the Federal Regional Court when rejecting the author’s four motions for bias. However, it
does not mean that the author had no effective remedy or that the judges and courts were not
impartial.
4.18
The State party explains that judges and prosecutors’ professional associations are
private institutions created by citizens in their private capacity and regulated by the Civil
Code. They are not part of the State party’s judiciary and therefore enjoy a wide scope of
protection of freedom of speech. It adds that the opinions expressed by those associations do
not constitute official opinions of any of the State party’s government branches and that they
have no capacity to influence the independence of judges. It concludes that the author’s
allegations in that regard are rhetorical claims that lack substantiation.
Risk of indefinite pretrial detention
4.19
The State party clarifies that the author was never placed under preventive arrest. It
adds that the author was imprisoned due to the provisional execution of his conviction, after
sentences had been rendered by the courts of first and second instances, in accordance with
Supreme Federal Court case law. The State party explains that lawful detention of a person
after a conviction by a competent court is legitimate grounds for the deprivation of liberty
that, although explicit in the Convention for the Protection of Human Rights and
Fundamental Freedoms, is implicit in other treaty provisions.46 It notes that the Supreme
Federal Court decided, on 17 February 2016, before the author’s first conviction, that the
presumption of innocence did not prevent imprisonment resulting from a judgment that, on
44 Judge Moro’s letter to the Supreme Federal Court of 29 March 2016.
45 European Court of Human Rights, Hauschildt v Denmark, para. 50.
46 Office of the United Nations High Commissioner for Human Rights, “Human Rights in the
Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (United
Nations publication, 2003), chap. 5, “Human Rights and Arrest, Pretrial Detention and Administrative
Detention”, p. 172.
CCPR/C/134/D/2841/2016 (Initial proceedings)
14
appeal, confirms a conviction.47 In fact, several other defendants in Operation Car Wash were
imprisoned with convictions confirmed by the court of second instance, before the author
was.
4.20
With regard to the alleged lack of enforcement of a decision of the Federal Regional
Court rendered by Judge Favreto, ordering the author’s release, the State party explains that
Judge Favreto is under investigation before the Superior Court of Justice for the alleged
commission of the crime of wilful abuse of power.
4.21
With regard to the allegations of widespread use of pretrial detention in relation to
Operation Car Wash, the State party explains that the Federal Criminal Court of Curitiba had
duly based its decisions ordering the pretrial detention of the accused on the relevant legal
provisions, i.e. article 312 of the Code of Criminal Procedure, providing the reasoning for
them and highlighting the exceptionality of pretrial detention. It adds that, although some of
the decisions were reversed by higher courts, that only shows that the State party’s judiciary
is independent and impartial.
4.22
With regard to the allegations that pretrial detentions in relation to Operation Car
Wash were ordered with the intent to force plea bargains, the State party notes that 83.5 per
cent of the 175 plea agreements concluded were carried out while those investigated were
free. It adds that, for plea bargains to be valid, they must be voluntary, in accordance with
Law No. 12850, as amended in 2013, a year prior to the commencement of investigations in
Operation Car Wash.
Presumption of innocence
4.23
The State party alleges that there is nothing in the pronouncements of members of the
Office of the Federal Prosecutor that could influence the independent and impartial
performance of the judiciary. It adds that a technical explanation to the public regarding the
charges against the author is in accordance with the right to information and the principle of
transparency. It notes that the author and his defence team held several press conferences to
convey their version of the facts.
4.24
With regard to the first televised press conference held by the prosecutors of the
Operation Car Wash Task Force, the State party refers to Judge Moro’s decision on the
motion for bias against them. According to that decision, the press conference: (a) was not
endowed with political-partisan or political-ideological purposes; (b) had the intention to
inform and remain accountable to the public, considering the notoriety of the accused; (c)
attested to the relevance of the affirmation of the author’s power of command; and (d) did
not include a disrespectful tone in the adjectives used in the charges presented.48
4.25
The State party explains that the author filed a lawsuit against Prosecutor Dallagnol,
seeking compensation for alleged moral damages, which was dismissed, and that it was
dismissed again on appeal. The State party highlights the context of the charges of the
appellate decision, the strong evidence available and the fact that the public interest trumps
the right to privacy when a public person is involved. The State party explains that the author
also filed an administrative complaint against the Office of the Federal Prosecutor, before an
independent control body, the National Council of the Office of the Federal Attorney, which
dismissed the complaint on similar grounds.
Right to vote and right to be elected
4.26
The State party alleges that a violation of article 25 of the Covenant can only be
considered, as its own text asserts, if the restriction to the concerned right is unreasonable. It
cites the Committee’s general comment No. 25 (1996), according to which restrictions can
47 The writ of habeas corpus only confirmed the long-standing jurisprudence of the court on the matter,
prior to a revision that took place in 2009.
48 The State party quotes large excerpts from the author’s first conviction, in which Judge Moro also
highlighted the ways in which the conduct of the prosecutors was in line with the exercise of their
functions.
CCPR/C/134/D/2841/2016 (Initial proceedings)
15
be imposed as long as they are established by law and based on objective and reasonable
criteria.49
4.27
With regard to the author’s right to be elected, the State party explains that the Clean
Slate Law was passed, in accordance with article 14 (9) of the Constitution, by an absolute
majority of the National Congress, indicating that the restrictions are both exceptional and
carefully considered. It adds that the law derived from the people’s initiative, in line with
article 61 (2) of the Constitution, which demonstrates a strong exercise of legislative
democracy and popular sovereignty, and promulgated by the author himself while President.
According to article 1 (e) (1) thereof, citizens are ineligible to hold any public office for eight
years if they have been convicted of crimes such as money-laundering or crimes against the
public administration, in virtue of a criminal sentence subject to res judicata or rendered by
a collective judicial body. The State party explains that such was the author’s case. The State
party adds that, in 2012, the Supreme Federal Court ruled that the law was in compliance
with the Constitution. The decision was rendered four years before the criminal cases against
the author, which indicates that it has not been applied to him in an ad hoc manner.
4.28
The State party holds that the types of restrictions to the author’s rights were
democratically established by domestic law and duly applied to him, as a result of equitable
protection of the human rights to good governance and democracy, making the restrictions
reasonable and in accordance with article 25 of the Covenant.
4.29
With regard to the author’s right to vote, the State party alleges that the restriction was
legal, objective and reasonable. It explains that, in accordance with the Electoral Code, the
Superior Electoral Court adopted a resolution on 8 December 2017 establishing electoral
sessions in imprisonment and correctional facilities having at least 20 people who are able to
vote. That was not the case at the regional superintendence of the federal police in Curitiba
and therefore the author could not vote. The State party explains that, with 600,000 people in
custody, the restriction is not only established by law but also reasonable and objective.
Interim measures
4.30
The State party claims that the Superior Electoral Court took duly into account, in
good faith, the recommendation of the Human Rights Committee to grant provisional
measures to the author. It highlighted that the proposal to allow the author’s registration as a
candidate was defeated. It adds that the proposal against the registration of the author’s
candidacy, but in favour of his right to campaign and have his name maintained in the ballot
box system, was also defeated.
5.
The present Views are continued in document CCPR/C/134/D/2841/2016 (Final
proceedings).
49 Committee’s general comment No. 25 (1996), para. 4.