Saturday, October 06, 2007

Brazil: The Keystone Cops Weigh in Again

I am now in India, a lovely, well-mannered country where nobody has tried to kill me, by crashing an airplane into me and blaming the innocent pilots, and so for a time at least Brazil seems, well a half world away.

But the vigilant and honorable Richard Pedicini, our Sao Paulo bureau chief, has remained on the job, 24 - 7 it seems to me.

Evidently, the congressional invetogators, known as the CPI, have now signed off on their "report," which evidently exonerates the air traffic controllers and blames only the American pilots. This remarkable feat or investigative work has been accomplished by the tried and true method of ignoring the undisputed evidence and deliberately mistranslating sections of the cockpit voice recorder. Oh, and why have we not heard Word One from the Gol recorder?

Now, I have been remiss in not saying that I hear regularly from sensible, fair minded Brazilians who tell me their country can be crazy. And I have been hearing from a lot of the recently warning me that the CPI has about as much credibility as the Myanmar parliament..

Anyway, here's an update, translation courtesy as usual of Mr. Pedicini.

Sinop court asks for interference of STJ in trial over Boeing crash
October 5, 2007 - 16:28

The continuation of the trial on the accident involving the Gol plane - the second worst in Brazilian aviation - in the North of Mato Gosso, will depend on a decision of the Supremo [should be "Superior"] Tribunal de Justiça (STJ). The federal judge of Sinop, Murilo Mendes, 'raised as an impediment a positive conflict of jurisdiction' and asked for the intervention of the court. Só Notícias obtained, first hand, the gist of the decision, published today, after the magistrate became aware that a criminal action is underway in the Military Courts, in Brasilia, which investigates the same facts as the trial underway in the Federal Court of Sinop.

"It is not convenient for anyone that a situation of uncertainty continues in relation to thsich court has jurisdiction for the trial and judgment of the air traffic controllers. Everything recommends that the Superior Tribunal of Justice pronounce on this material. This avoids, among other things, the performance of unnecessary investigations by the judge who at the end comes to be judged incompetent by the STJ. But it isn't just this. It should be taken into account the circumstance that it constitutes flagrant illegal constraint to oblige the defendants to answer for the same facts before two bodies with distinct jurisdiction", he justified in his decision.

In the indictment offered by the Federal Prosecutors' Office, the accused were air traffic controllers Jomarcelo Fernandes dos Santos, Lucivando Tibúrcio de Alencar, Leandro José Santos de Barros and Felipe dos Santos Reis, and the pilots of the Legacy jet Joseph Lepore and Jan Paladino. In August, the four controllers were interrogated in Sinop, and related that they were not aware that they were responding to a military inquiry.

Mendes also remembered that, after the accident, the STJ determined that the trial was in the jurisdiction of the Federal Court of Sinop, under the argument that "in dealing with crime practiced on board an aircraft or in detriment to goods, services or the interest of the Union, jurisdiction is with the Federal Courts, by force of constitutional command".

This week, judge Zilah Maria Callado Fadul Petersen, of the 11th Military, in Brasilia, rejected the indictment by the Military Prosecutors' Office (MPM) against five air traffic controllers, among them the four indicted in Sinop, for involvement in the accident.

Another point questioned by Murilo Mendes is in relation to the crime of which they are accused. In the MPF's indictment, they were charged under article 261 of the Criminal Code, exposing to danger an embarkation or aircraft, one's own or another's, or practicing any act that tend to impede or hinder maritime, fluvial, or air navigation.

Now, article 283 of the Military Penal Code provides - expose to danger an aircraft or ship, one's own or another's, under military guard, protection or requisition emanating from a legal order, or in a place subject to military administration, as well as practicing any act that tend to impede or hinder air, sea, river or lake navigation under military administration, guard or protection.

"The facts described in the accusatory piece, taken together, are not subsumed in that type of crime. There it speaks of "exposing to danger an aircraft under military guard, protection or requisition, or in a place subject to military administration". The airplanes weren't under guard. Guard is the 'act or effect of guarding, surveillance, care, guarding'. The only plausible possibility in favor of the classifying the acts as a military crime would be the allegation that the aircraft were "in a place subject to military administration" he justified.

In the Military Court's decision, not accepting the indictment by the MPM, the judge argued that the indictment did not conform to article 77 of the Military Criminal Code, [should be "Codigo de processo penal militar" Code of military criminal procedure, see], which determines "the exposition of the criminal fact, with all its circumstances".

Source: Só Notícias/Tania Rauber

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