Moraes as assistant prosecutor in the Rome investigation goes against the law

The decision by Minister Dias Toffoli, of the Federal Supreme Court, to admit his colleague Alexandre de Moraes and his family as assistants to the prosecution in the investigation into the confusion that occurred in July, at Rome airport, contravenes the Code of Criminal Procedure and the jurisprudence of the Federal Supreme Court. Supreme himself.

This is the response of judges, prosecutors and lawyers consulted by the report to clarify the issue. They all said that prosecutorial assistance could only be admitted at a later stage of the case, that is, during the course of a criminal action.

To achieve this, it is necessary that the Public Prosecutor’s Office first formally accuse those being investigated in a complaint, if it considers that there was indeed an attack, that it can be classified as a crime, and that there is minimum evidence that allows the crime to be attributed to the suspects.

“In all terms of public action, the offended party or his legal representative, or, failing that, any of the people mentioned in art. 31”, says article 268 Code of Criminal Procedure (the last expression refers to the victim’s relatives).

The prosecution assistant is a role reserved for the victim in a criminal case. Its main function is to seek the punishment of your aggressor if the Public Prosecutor’s Office – which is primarily responsible for seeking conviction before the courts – does nothing to do so in the action.

Therefore, in this role, he can appeal an acquittal if the MP does not try to reverse it. Before that, according to the Code of Criminal Procedure, you can also propose the analysis of documents or statements, request questions from witnesses, make additions to the initial complaint, participate in the debate in court and file appeals against decisions.

For some members of the Public Ministry and the judiciary, who preferred not to be identified, Toffoli’s decision was received with surprise. According to them, Moraes could only be an assistant prosecutor if the law was changed. Otherwise, Toffoli’s decision could be interpreted as the creation of a new law, which should not be allowed.

A retired judge interviewed by the report said that the admission of Moraes as assistant to the prosecution caused some surprise because the inquiry is a prior, administrative investigation, which in theory, may not even lead to a complaint. According to her, even if the case presents evidence, the law that determines how legal proceedings occur does not provide for the participation of a prosecution assistant at that specific moment.

This Monday (30), the Attorney General’s Office (PGR), which represents the Public Ministry before the STF, appealed Toffoli’s decision. The body argued that the admission of Moraes as assistant to the prosecution would mean a usurpation of the role of the Public Prosecutor’s Office, which is responsible for proposing the opening of a public criminal action.

“Admitting ‘assistance’ in the inquisitorial phase, as done by the eminent minister rapporteur in the decision now being appealed, may lead to the mistaken conclusion of representing a manifestly unconstitutional attempt, in direct violation of art. 129, item I, of the Federal Constitution, to give legitimacy to the alleged victims to replace the Public Ministry, even if the natural prosecutor eventually promotes the archiving of the pieces of information”, wrote the acting Attorney General of the Republic, Elizeta Maria de Paiva Ramos, in the appeal to Toffoli.

If the PGR were to ask for the investigation to be closed, due to not seeing crimes or due to lack of evidence, could Moraes and his family appeal to keep the investigation open against the family of businessman Roberto Mantovani?

For Alexandre de Moraes himself, this could not happen. In 2020, he decided that there is no appeal against the decision of a minister who, accepting a request for archiving from the Attorney General’s Office, closes the investigation.

In the case analyzed, a citizen had appealed against the PGR’s decision to archive a criminal report that he himself presented against the then president, Jair Bolsonaro, for allegedly committing the crime of causing an epidemic and condoning the crime, due to the fact that he had created crowds on motorcycle tours in Brasília.

“The jurisprudence of the Federal Supreme Court is consolidated in the sense that the judicial decision that, accepting the opinion of the Public Prosecutor’s Office that there are no minimum elements of proof of the occurrence of the reported crimes, is unappealable, determines the archiving of crime news”, he stated Moraes at the time. This position prevailed in the trial, which took place in the First Panel of the STF.

In practice, the understanding is that not even an alleged victim of a crime can appeal the closing of the investigation if this is requested by the Public Prosecutor’s Office and accepted by the judge. If, however, a criminal action had already been opened – triggered by the receipt of a complaint from the Public Prosecutor’s Office, which presupposes the existence of evidence that a crime had actually occurred – then yes, the victim, as an assistant to the prosecution, could appeal the acquittal.

In its appeal against Toffoli’s decision, the Attorney General’s Office stated that allowing Moraes to act as an assistant to the prosecution, without there being even a complaint, is a “privilege incompatible with the republican principle of equality, legality and democracy itself.”

“There is no precedent for admitting assistance to the prosecution in the inquisitorial phase. Such privilege was never admitted to any of the authorities listed above, not even to the President of the Republic”, he said, mentioning other holders of privileged jurisdiction in the STF, such as parliamentarians, ministers of State and heads of Powers.

The body also cited doctrinal work by prosecutor Douglas Fischer and lawyer Eugênio Pacelli, both recognized criminalists, according to which it is only up to the police to “judge convenience and opportunity regarding the contribution” of victims and those under investigation in the investigation of a crime. Although an alleged victim has the right to ask the police to take steps to better clarify how they were attacked, the decision is up to the investigating officer.

For some lawyers, however, the alleged victim of a crime can not only ask the police chief for some measure to clarify what happened, but the judge in the case himself.

“The victim can request action from the judge and if he grants it, he will order the police to execute it. Article 311 of the Code of Criminal Procedure says that the victim can even request preventive detention of the person being investigated”, says retired police chief, professor and now lawyer Silvio Maciel. According to him, measures such as breach of confidentiality, search and seizure can be requested by the alleged victim, and it is up to the judge to consult the Public Prosecutor’s Office to make his decision.

“The victim’s interests are increasingly respected in the process. We cannot treat people as someone outside the criminal process. It has to be participatory,” she adds. “Let’s suppose that Minister Dias Toffoli rejected Alexandre de Moraes’ request as assistant to the prosecution and, however, allowed him to request any diligence he deemed necessary, both from the delegate and the judge. That wouldn’t change anything. It’s a terminological issue,” he said.

Lawyer and doctor in criminal law Matheus Herren Falivene understands, as the law says, that it is not appropriate to admit prosecution assistants in the investigation phase. But for him, nothing prevents the victim from following the investigation. “But he cannot properly be called an ‘assistant prosecutor’.” “During the investigation phase, the victim can only accompany the victim and suggest evidence to the police chief,” he says.