Search and seizure in the case of the airport is abusive on several levels

The search and seizure warrant carried out by the Federal Police (PF) in response to the incident with Minister Alexandre de Moraes, of the Federal Supreme Court (STF), at Rome’s international airport is, for jurists consulted by the People’s Gazetteillegal and abusive on several levels.

The action was ordered by the president of the STF, Rosa Weber, and carried out by the Federal Police on Tuesday (18), at the residence of businessman Roberto Mantovani and his wife, Andréia, in Santa Bárbara D’Oeste (SP). They are accused of insulting and assaulting Moraes.

The goal would be to collect documents, cell phones and computers that could help in the investigation. The PF says that the investigation investigates crimes of injury, persecution and contempt against the minister. The process is confidential.

First, according to jurists, the jurisdiction of the case cannot be the STF under any circumstances.

In the case of aggression, if there has been no bodily injury, it is not a crime, but a mere criminal misdemeanor – a type of infraction that is not covered by the principle of extraterritoriality.

Furthermore, as already shown by the People’s Gazettethe crimes raised – insult, defamation, threat and bodily harm – all carry sentences of less than two years in prison, which does not allow criminal prosecution in Brazil.

To bring the process to the country, it would remain for the STF to claim that there was “violent abolition of the Democratic State of Law”, whose penalty varies from 4 to 8 years in prison. For lawyer Igor Costa Alves, who holds a Master’s degree in Law from the University of Lisbon, “it cannot be assumed that verbal attacks on an authority are an attack on the institution to which that authority belongs – let alone an attack on democracy”.

In the view of lawyer and legal consultant Katia Magalhães, ministers are unreasonably expanding what falls under the abolition of the rule of law crime.

“Any type of questioning, of questioning the effectiveness of electronic voting machines, for example, has been unduly classified as an attack on the rule of law. I do not see it that way. People are fully entitled to question not only the electoral system, but to the fairness of the elections and the performance of the ministers of the Supreme Court. There must be an environment of freedom of expression and, eventually, for cases of people who feel offended, there are the courts of first instance”, he says.

According to her, “there is a huge distance between the crime of abolishing the rule of law, which requires a strategic organization, and the exercise of the word – which may eventually be in the field of crimes against honor, but which is nothing more than the verbalization of offences”.

For Katia, the personification of democracy in a minister of the Supreme “is a reflection of a growing authoritarianism in the judicial environment”. “At worst, this could constitute a crime against a man, against his honor, but never a crime against the Democratic Rule of Law itself. Because, if you adopt this reasoning, there would be a whole mess between the person of Alexandre de Moraes and the figure of the rule of law, and then we would have the times of absolutism back – a totally anachronistic and absurd interpretation in relation to the modern rule of law”, he says.

Search and seizure should be the last resort of investigation; case looks like “fishing expedition”

In the event of a personal offense against the minister, if the incident had taken place in Brazil, the case would fall to a lower court.

Finally, even if the jurisdiction of the case was the STF and there was justification for the search and seizure, this could only be done after other steps. “Search and seizure can never be the first investigative measure”, highlights Costa Alves. “It has to succeed other measures that are less intrusive to fundamental rights and the private sphere. Only afterwards, with well-founded reasons, is it possible, in theory, to carry out a search and seizure. And none of that seems to have happened in this case.”

The measure of the STF becomes even more serious by the appearance of “fishing expedition” – evidentiary fishing. “Yes, there seems to be fishing expedition – evidentiary fishing –, which is a way for the State to illegally and unconstitutionally produce evidence, violating people’s fundamental rights – without any kind of well-founded reason, to start invading people’s privacy to illicitly obtain evidence that the incriminate in some way”, explains Costa Alves. According to him, proof of “fishing expedition” would, in itself, be a case of nullity of the investigation.