STF inquiries turn into a legal labyrinth against freedom of expression

STF inquiries turn into a legal labyrinth against freedom of expression

Last Tuesday (14), completed three years the survey of fake news (4781), landmark of the iron hand of the Federal Supreme Court (STF) on freedom of expression in Brazil. Still in progress, this investigation and the inquiries that derived from it are a legal labyrinth with several ramifications, secret zones and semantic traps, with no end in sight.

In the list of STF investigations that, since March 2019, have threatened to put the brakes on free demonstration in Brazil is the so-called “anti-democratic acts” inquiry (4828), filed in July 2021 to make room for the digital militias inquiry (4874) ; the inquiry into “illegal and undemocratic acts” related to September 7, 2021 (4879); the inquiry that claims to investigate the spread of false news about Covid-19 (4888); and the most recent of them, which seeks “intellectual responsibility” for the acts of January 8 (4921).

The last four mentioned, as well as the survey of fake news, are still ongoing. In defining the scope of these investigations, there is insistence on the use of undefined terms that can give rise to the judge’s discretion, such as “fake news“, “anti-democratic acts” and “intellectual responsibility”.

Investigated lawyers resent the lack of access to the complete records of the investigations – as reported by the People’s Gazette on several occasions, they report only having access to parts of the file, presented in a disjointed manner. By law, access to the entire file is the prerogative of defense lawyers, as guaranteed by article 133 of the Constitution and article seven of the Statute of Advocacy.

Rapporteur of all the inquiries mentioned, the Minister of the STF Alexandre de Moraes guarantees that the requests of the lawyers have already been answered. In November 2022, the president of the Brazilian Bar Association (OAB), Beto Simonetti, sent a letter to Moraes asking for the release of full access to the file for the lawyers of those investigated in inquiries 4781 and 4874.

Alessandro Chiarottino, professor of Constitutional Law and Doctor of Law at USP, explains that, although a certain restriction on publicizing investigations is justifiable, it is imperative that at least defense lawyers have full access to all investigation records. “It is true that the investigation has a different nature from the process. The process is subject to the principle of publicity in a broad way, which does not happen with the investigation, in which there is an investigative procedure. access,” he points out.

The specialist also highlights the origin problems of the survey of fake news and its developments, such as the controversial application of Article 43 of the STF’s internal regulations, the violation of the adversarial system and the lack of typification in the Penal Code of some of the investigated matters – explained in detail in this article by the columnist of the People’s Gazette Thaméa Danelon. “These contradictions, which are multiple, actually end up leading to confusion and even some embarrassment for the legal class”, she says.

Marcelo Rocha Monteiro, public prosecutor of the Public Ministry of Rio de Janeiro (MPRJ), also states that the investigation of fake news is “illegal in origin”. “In what we call the accusatory system, adopted by the 1988 Constitution, the Judiciary cannot exercise the investigative function, which is proper to the police. preconceived idea of ​​the facts that he will judge at the end of the process”, he says.

extension “ad infinitum” of investigations raises concern

According to Folha de S.Paulomembers of the Luiz Inácio Lula da Silva (PT) government are betting that Minister Alexandre de Moraes will maintain the investigation of fake news open at least until Augusto Aras, the current Attorney General of the Republic, leaves office, which should occur in September. The assessment is that Aras would be sympathetic to Bolsonaro supporters and could archive the investigation’s conclusions without offering complaints. The PGR, however, has already bucked this trend several times.

For lawyers consulted by People’s Gazette, the extension of investigations for years on end is not illegal in itself, but it is unusual, and becomes serious in view of the unconstitutionality of the investigations. One of the problems with the delay in concluding investigations can be the excessive involvement of the investigator in the case, to the point that he consolidates an opinion during that time.

According to Rocha Monteiro, this is aggravated by the fact that the investigator, in the case of STF inquiries, is the judge himself, who will have a formed view of the case even before the beginning of the process. “It is evident that anyone who spends days – or months, sometimes more than a year – investigating a fact during an inquiry will inevitably form an opinion about that fact at the end of the investigation – that is, before the process begins” , he says.

For Chiarottino, the unlimited extension of the investigations could end up showing even more their unconstitutionality, as the political controversies that motivated the investigations become a topic of the past.

“All these investigations were initiated and advanced at a time of great polarization, of great political turbulence, in which the Judiciary clearly chose a side. At the current moment, the STF no longer has that function of defending one side against the other. Now , when the political situation is calmer, because the leader of the opposition is out of the country, the absurdities, inaccuracies, illegalities and unconstitutionalities of these inquiries must become more evident”, he observes.

What are the STF inquiries related to freedom of expression and who is investigated

  • survey of fake news (No. 4781). Rapporteur: Alexandre de Moraes. Opened March 2019. In progress. Confidential. Some of those investigated: Abraham Weintraub; Allan Lopes dos Santos; Bernardo Pires Kuster; Edgard Gomes Corona; Edson Pires Salomão; Eduardo Fabris Portella; Enzo Leonardo Suzi Momenti; Jair Bolsonaro; Luciano Hang; Marcelo Stachin; Marcos Dominguez Bellizia; Otavio Oscar Fakhoury; Paulo Gonçalves Bezerra; Rafael Moreno; Reynaldo Bianchi Junior; Roberto Jefferson; Rodrigo Barbosa Ribeiro; Sara Fernanda Giromini; Winston Rodrigues Lima.
  • Survey of “anti-democratic acts” (nº 4828). Rapporteur: Alexandre de Moraes. Opened in April 2020. Archived in July 2021. Some of those investigated: Adilson Nelson Dini; Alessandra da Silva Ribeiro; Aline Sleutjes; Allan Lopes dos Santos; Alberto Junio ​​da Silva; Arolde de Oliveira; Beatriz Kicis Torrents de Sordi; Camila Abdo Leite do Amaral Calvo; Carla Zambelli Salgado; Caroline Rodrigues de Toni; Daniel Lucio da Silveira; Elieser Girao Monteiro Filho; Emerson Teixeira de Andrade; Ernani Fernandes Barbosa-Neto; Evandro de Araujo Paula; Fernando Lisboa da Conceição; Geraldo Junior do Amaral; José Luiz Bonito; Luis Felipe Belmonte dos Santos; Marcelo Frazao de Almeida; Marilza Gomes Eustáquio Shibata; Oswaldo Eustaquio Filho; Otavio Oscar Fakhoury; Otoni Moura by Paulo Junior; Sandra Mara Volf Pedro Eustáquio; Sara Fernanda Giromini; Sergio Ferreira de Lima Junior; Thais Raposo do Amaral Pinto Chaves; Valter Cesar Silva Oliveira; Walter Luiz Bifulco Scigliano.
  • Survey of digital militias (nº 4874). Rapporteur: Alexandre de Moraes. Open July 2021. Public. In progress. Some of those investigated: Afrânio Barreira Filho; Allan Lopes dos Santos; Fabio Wajngarten; Ivan Wrobel; Jair Bolsonaro; Luciano Hang; Marco Aurélio Raymundo; Oswaldo Eustaquio; Otavio Oscar Fakhoury; Sara Fernanda Giromini.
  • Survey of the 7th of September (nº 4879). Rapporteur: Alexandre de Moraes. Opened in August 2021. Confidential. In progress. Some of those investigated: Alexandre Urbano Raitz Petersen; Anderson Torres; Antonio Galvan; Bruno Henrique Semczeszm; Eduardo Oliveira Araújo; Fabio Augusto Vieira; Ibaneis Rocha; Juliano da Silva Martins; Otoni Moura by Paulo Junior; Sergio Reis; Turibio Torres; Wellington Macedo de Souza; Ze Thunder.
  • Survey of speeches about Covid-19 (nº 4888). Rapporteur: Alexandre de Moraes. Open December 2021. Public. In progress. Some of those investigated: Jair Bolsonaro; Mauro Cesar Barbosa Cid; Victor Neves Feitosa Campos.
  • Inquiry into the “intellectual responsibility” of the acts of 1/8 (nº 4921). Rapporteur: Alexandre de Moraes. Opened January 13, 2023. In progress. Under secrecy of Justice. Known Investigator: Jair Bolsonaro. Note: the inquiry is being conducted in secrecy and it is not clear if there are others being investigated for the “intellectual authorship” of the acts of 1/8 besides former president Bolsonaro.

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