FEDERAL COURT OF MATO GROSSO
SINOP JUDICIAL SUBSECTION
JUÍZO DA VARA ÚNICA
CASE Nº: 2007.36.03.002400-5
CLASS: 13101 – CRIMINAL ACTION
AUTHOR: FEDERAL PROSECUTOS’ OFFICE
JOMARCELO FERNANDES DOS SANTOS, LUCIVANDO TIBÚRCIO DE ALENCAR, LEANDRO JOSÉ SANTOS DE BARROS, FELIPE SANTOS DOS REIS, JOSEPH LEPORE AND JAN PAUL PALADINO
The decision which denied the request for the testimony of witnesses nominated by the pilots’ defense, proffered by the eminent colleague who substituted for me during the time when I was on health leave, is based on the provision of Article 222-A of the CPP [Code of Criminal Procedure], added to the Code by Law nº 11.900/2009.
With all respect due to the interpretation given to the legal provision, I should say that I do not agree with it. It is unquestionable that the demonstration of the indispensability of the evidence to be gathered via rogatory letter has as its purpose to inhibit procedures that are merely dilatory. And this obvious observation made me think that what motivated the publication of the law was the situation, which very commonly occurs, of a trial with Brazilian defendants in which is requested the testimony of witnesses who are resident or domiciled overseas. In such a case, if the crime has taken place in Brazil, and the defendant is Brazilian, the request for the testimony of someone overseas is almost always a measure that seeks to obstruct the more rapid progress of the case. It does not seem to me that the letter of the law should be employed in the hypothesis in which the defendant is a foreigner, nor does it appear to me that this was the legislator's intent. When the defendant is a foreigner, it is more than natural that the witnesses he calls also be foreigners. One can say, in sum, that in dealing with a Brazilian defendant, the testimony in a foreign country of someone he indicates constitutes, as a rule, something that departs from normality. The defendant himself being a foreigner, the complexion of things changes completely. In the latter case, the request for the testimony of people who live in his country is something which falls, again as a rule, within the range of the most complete normality.
In any event, however it may be, I understand the defense to have justified the need for the witnesses' evidence to be taken. The pilots are accused by the Prosecutors' Office of being unfamiliar with the most elementary aviation procedures. Well, nothing is more just than that they indicate professional colleagues, who will confirm or contradict the accusation's words. In the same way I find it more that justified to hear the testimony of the people who were aboard the aircraft. One thing is to have turned off or not the airplane's safety equipment. Another thing, and quite different, is the conversation that may have taken place between pilots and passengers. To know what was said, and what was not said, what was commented, what subjects were spoken of, in sum, inside the plane, all of this is relevant to the defense, although it cannot be predicted if it will or will not be relevant to the judgment. The judge, however, when he permits evidence, should not float a thousand conjectures about what the witness will or will not say. What the judge should ask, when he considers the motion to admit evidence, is whether the evidence requested may have concrete interest for whoever requested it. If he judges yes, then he should approve the motion.
This judge was informed by the Ministry of Justice, responsible for the fulfillment of the judicial cooperation treaty between Brazil and the USA, when another decision in the present trial was proffered, that under the American system it is the party's own responsibility to produce the evidence that is in his interest – here, the defense. This means that there could be some delay or difficulty in performing the procedure on the part of the American authorities, an event which would delay the progress of the trial. One does not speak, it is true, of an impassable obstacle. I judge it convenient, however, before taking a definitive decision on the way in which the interrogation will take place, to consult the pilots' defense so that it may say, in 48 hours, if it is disposed to bring together, in the same city, the witnesses named, so that the audience can be done by videoconference, as a demonstration that they intend to cooperate with the Brazilian courts.
So being, the motion for the evidence of witnesses is approved, remaining pending only the way in which the act will be undertaken. I authorize, exceptionally, the Clerk of Court to personally inform the parts, a copy of this decision serving for such.
Sinop/MT, September 29, 2010.
Substitute Federal Judge, with full powers in the
Single Courtroom of Sinop-MT