US Pilots Are Illegally Detained in Brazil, Their Lawyer Says

It’s been now more than a month that a Boeing 737 collided with a smaller plane over the Amazon jungle resulting in Brazil’s worst aviation disaster ever. The crash happened on September 29.

While the families of the 154 dead have gone to hell and now try to pick up the pieces and go on with their lives, the American pilots of the Legacy jet that hit the Boeing have been in limbo since the disaster.

The Brazilian authorities have confiscated their passports and even though they are not in jail they are not allowed to leave the country either while the investigations drag on. There is no end in sight for the inquiry.

The results of the information gathered from the black boxes of both planes are being kept secret. The Brazilian federal police have said that they will not hear the Americans before the Air Force sends them the reports of the black boxes.

Just this Monday, October 30, 10 air controllers from Brasí­lia’s control tower, who were supposed to give their testimony didn’t show up. Instead, all 10 sent a letter to the Federal Police chief Renato Sayão, who is in charge of the case, saying that they are undergoing psychiatric treatment and they will not be able to present their version of the facts before November 13. The letter was signed by a military doctor.

Joe Lepore and Jan Paladin, the two pilots, who are confined in a Rio Hotel – they are being treated as pampered tourists some Brazilians say – are now saying through their lawyers that they can’t take this delay any more and that they want to go back home.

Theo Dias, the Americans’ lawyer told Consultor Jurí­dico magazine: "Even being aware that the decision to seize the passports is illegal, we had decided that we would challenge such decision  only after the pilots’ depositions before the federal police, but in face of the lack of perspective for a conclusion to the investigations we may review such position."

And Dias went on: "The Air Force refused to send evidence to the Federal police without court authorization. On the other hand, the federal judge has already stated that he will wait a decision by the highest appellate court (STJ, Supremo Tribunal de Justiça) which will determine if he will be the one to tackle the case. This impasse might take months."

Dias went out of his way to praise police chief Sayão and to say that he has been acting correctly and that his position towards the inquiry makes a lot of sense, but he added that "the human situation involved in the case clamors for urgency." Basically, he is saying that the pilots want to talk but nobody in Brazil wants or is ready to listen to them.

According to the lawyer, "this is a complex case, that demands a series of investigations that will not be conducted in a short span of time. In many countries, the criminal investigation only starts after the aviation technicians conclude their own investigation."

Dias called attention to the fact that the only people involved in the case that had their freedom of coming and going restrained were the two pilots. Says he, "The Brazilian Constitution calls for equal treatment for nationals and foreigners and what is being investigated in this case is crime of negligence or involuntary crime, which does not admit preventive arrest or any other kind of restriction to the freedom of movement."

He assures that there is no way that the two pilots would disappear and not respond to the Brazilian justice questions even if they went back to the United States. This, because according to the lawyer, a cooperation treaty between Brazil and the US compels the pilots to render account to the Brazilian judiciary. "This is not a matter of wanting to collaborate or not. Such cooperation is a legal imperative."

Article VIII of the treaty (MLAT – Mutual Legal Assistance Treaty) contemplates expressly that a person called on to testify or to show evidence will be compelled, when necessary, to show up and testify or to exhibit documents, records and property.

Thanks to the MLAT, argues Dias, it doesn’t make any sense to continue keeping the two American pilots in Brazil. "Among other reasons because the future of these pilots as professionals depends on the resolution of this case."

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