5 years without results; Moraes rules out filing

The “survey of fake news”, established to investigate conduct that “affects the honorability and security” of the STF and its ministers, completes five years this Thursday (14) with no concrete results to be presented.

This is the assessment of André Marsiglia, the portal’s lawyer The Antagonist and the magazine Crusoewho were the targets of one of the first measures of the investigation: the censorship order on a report involving Minister Dias Toffoli, who had initiated the procedure.

Marsiglia informed the reporter that, five years later, his clients have still not been indicted or reported for any crime: “To this day we don’t know why my clients, all professional journalists, are in the investigations.” However, they still remain under investigation.

If it depends on the inquiry’s rapporteur, Minister Alexandre de Moraes, this situation should not change anytime soon. Questioned by the newspaper Newspaper if he had any plans to “finally” complete the investigation, in December 2023, he replied: “It will be concluded when it is finished”.

Unusual delay

The legislation provides, as a rule, a period of 30 days to conclude an investigation. Criminal lawyer Gabriel Duda Deveikis explains that, in practice, investigations may be extended and last years. However, he emphasizes, this situation is more typical of complex crimes, such as those committed in the management of multinationals, giving Lava Jato as an example.

Word crimes – which correspond precisely to those investigated by the investigation of fake news – are, as a rule, according to the lawyer, “simple” in investigative terms, because the action to be investigated – the speech – is exhausted instantly and is often already documented.

Strictly speaking, according to the lawyer, an investigation may not even be necessary. This is because the only function of the procedure is to collect elements of conviction – popularly, “evidence” – to inform the future indictment, which needs to be accompanied by robust evidence to convince the judge of the accused’s guilt. If there is already, from the beginning, sufficient evidence – for example, a signed and publicly available report attributing an act damaging to reputation – criminal action can be taken directly, without even opening an investigation.

Regarding the aforementioned case, a report from People’s Gazette recalled that, in April 2019, Moraes determined that the magazine Crusoe and the website The Antagonist remove from the air, under penalty of a daily fine of R$100,000, a report that revealed that businessman Marcelo Odebrecht, in his plea bargain, referred to Toffoli as “my father’s friend’s friend”. Marcelo narrated discussions about hydroelectric works on the Madeira River in Lula’s second term, when Toffoli was the Union’s attorney general. There was no statement of illegal acts on the part of the minister.

The process is the punishment

In the case of the investigation of fake news, the sole justification for the existence of any investigation – to investigate the indictment – ​​had already been discarded in the month following its opening. This is because, on 04/16/2019, the then Attorney General of the Republic, Raquel Dodge, who would be responsible for possibly offering criminal action, asked for the procedure to be archived, considering its initiation and conduct to be illegal and announcing from the outset that it was not would file charges against none of those investigated, considering the evidence produced by that procedure to be illicit.

The warning was ignored and the investigation continued. Retired judge Ludmila Lins Grilo, in the work “The End of the World Inquiry” (dedicated to the investigation, in which she would later be included as being investigated), calls this detail “significant”: “if it is already known in advance that there will be no criminal action, this means that the investigation is serving , in practice, for exclusively persecutory and intimidating purposes”, she stated in the book.

Even after the PGR’s request for archiving, which was ignored, criminal precautionary measures continued to be carried out in the investigation. As an example, in a decision dated August 1, 2019, minister Alexandre de Moraes determined that two tax auditors be removed from office and questioned for “investigating several public agents, including […] ministers of the Federal Supreme Court”.

As of 2020, the investigation was also notable for initiating a wave of searches and seizures and censorship of social media accounts due to political demonstrations. These measures are decreed as criminal precautions, a measure that can be taken when an investigation is underway.

Lack of results

It is not possible to provide a complete assessment of the survey of fake news – officially, Inquiry 4,781 -, because it runs in secrecy.

Lawyers working in the investigation, contacted by People’s Gazettereport that not even they themselves had access to the full file and, therefore, do not know what crime their clients are accused of or what evidence the investigation was able to produce.

The only clues are provided by specific pieces that are occasionally referred to other investigation files to serve as auxiliary elements of evidence, and therefore become known.

This is how, for example, an investigation report on former deputy Roberto Jefferson emerged. Over 50 pages, the expert report is limited to making a collection of public posts by the former parliamentarian on social networks and presents as a conclusion that “attacks by Roberto Jefferson on the Federal Supreme Court and its members were located”.

Roberto Jefferson ended up being denounced by the PGR for crimes such as homophobia and incitement. However, the complaint cited different publications than those included in that report and took place within the scope of another procedure, number 4,874, known as the “digital militia inquiry”.

In a similar situation are the former deputy Daniel Silveira, the activist Sara Winter, the deputy Otoni de Paula and all the defendants of the acts of January 8, 2023: they were all denounced, but not within the scope of the investigation of the fake newsbut in one of its so-called “child surveys”.

The “child surveys”

Although the results of the survey of fake newshe still exerts great influence in Brazil as he is the link that justifies the fact that multiple high-profile inquiries remain in the hands of the same rapporteur, Alexandre de Moraes:

• Inquiry 4,874, the “digital militia inquiry”, opened ex officio by Moraes in the same decision that accepted the PGR’s request to archive Inquiry 4,828 (“on anti-democratic acts”), and aimed at investigating the existence of a criminal organization operating digitally with the purpose of “attacking democracy and the rule of law”;
• Inquiry 4,878, opened at the request of the TSE and aimed at investigating the leak, by Bolsonaro, of confidential data from a Federal Police investigation into a hacker invasion of the TSE system;
• Inquiry 4,879, opened at the request of the PGR and aimed at investigating a strike by truck drivers who supported Bolsonaro called on the eve of September 7, 2021;
• Inquiry 4,888, opened at the request of Covid’s CPI against Bolsonaro to investigate the then President of the Republic’s statements about vaccines;
• Inquiries 4,917, 4,918, 4,919, 4,920, 4,921, 4,922, and 4,923, opened to investigate responsibility for acts of depredation in Brasília on January 8, 2023;
• Inquiry 4,933, opened at the request of the PGR to investigate the administrators of Google Brasil and Telegram Brasil for campaigning against the approval of PL 2,630 (“PL das Fake News”).

Inquiry of fake news: the link in the chain

Despite the diversity of the subjects investigated, all are under the report of Minister Alexandre de Moraes for prevention. This means that they did not go through a lottery (the usual method for determining the judge of a case and normally required for the process to be considered valid), but instead, they were assigned directly to Moraes.

In all cases, the allegation is that they would be cases related to investigations under the minister’s report; or the investigation of fake news directly, or another inquiry which ultimately derives from it, because it was also distributed by connection.

Therefore, the survey of fake news it would function like a tree trunk on which multiple branches depend. At no stage in the chain was there a draw, since the original investigation was assigned to Moraes by personal choice of Minister Dias Toffoli, in an act that, at the time, generated controversy among jurists.

According to criminal lawyer Gabriel Duda Deveikis, what is understood in procedural practice is that, if a main investigation is archived, it is natural that the secondary investigations are also archived. The explanation is that the connection between inquiries presumes that they are closely associated: “if there is a connection to join, there is also a connection to archive”.

In the case of the investigation of fake newssome of those investigated, heard by the People’s Gazette under condition of anonymity, They reported that, in the five years since they were included in the investigation for speeches against STF ministers, no investigation-related measures, such as interrogations, had ever been carried out with them.

Despite this, the investigation is not archived and continues to be cited to support the rapporteur’s actions in the most varied cases, including the one investigating the former president for jewelry from the presidential collection and even directors of technology companies speaking out against projects of law.