STF: Moraes accumulates reports for fake news inquiry – 03/09/2024 – Power

Since being appointed rapporteur of the fake news inquiry, five years ago, STF (Supreme Federal Court) minister Alexandre de Moraes has accumulated a series of reports on important court cases involving disinformation and threats to democracy, serving as justification for inquiries that are already under your responsibility.

The most cited investigations to declare distribution by prevention —when there is no draw among ministers— are the fake news inquiry, the digital militias and the 2021 undemocratic acts inquiry, according to a survey by the Sheet.

Among these three inquiries, none reached the minister’s report by lot. The investigations into the digital militias and the acts of September 7, 2021, which target Bolsonarism, were distributed for prevention purposes. The fake news inquiry was opened ex officio, on March 14, 2019, and the rapporteur was chosen by the then president of the STF, minister Dias Toffoli.

The survey (see complete list below) took into account, when available, data in distribution certificates or in the progress of the court case. In other cases, especially confidential ones, information was considered in decisions.

As a rule, procedures are distributed randomly. The Criminal Procedure Code, however, provides some exceptions. One of them is the evidentiary connection, when the proof of an infraction has influence on the proof of another crime. Another case is when offenses are committed at the same time by several defendants together or when people contributed to a certain crime.

Prevention, in turn, occurs when a judge has already preceded others in carrying out some act in the process or measure related to it.

Experts in criminal law consulted by Sheet assess that one of the main difficulties in assessing whether there is actually prevention in the cases in question, due to the connection between the evidence, for example, is the confidential aspect of several of the procedures.

Based on the fake news inquiry, Moraes became the rapporteur of other petitions and inquiries, including the one opened following a request from the TSE (Superior Electoral Court) for former president Jair Bolsonaro (PL) to be investigated for alleged data leaks confidential information from an investigation into a hacker attack against the court in 2018.

It also justified the minister’s report in an investigation initiated after a request from Covid’s CPI against the then president and in investigations into improper conduct at Abin (Brazilian Intelligence Agency).

The connection with the fake news investigation was also used in the distribution of an investigation against Google and Telegram launched in 2023 after measures taken by these companies against the Fake News Bill being processed in Congress.

In the investigation into undemocratic acts opened in April 2020, at the request of the PGR (Attorney General’s Office), the definition was by draw. It was based on this investigation that Moraes also became rapporteur for the digital militias inquiry.

In a dribble to the PGR, he archived the investigation as requested by the agency, but subsequently opened a new one using the archived case to justify the report.

It is to this investigation that different fronts of investigation involving Bolsonaro’s former aide-de-camp, Mauro Cid, are linked, such as the tampering with vaccine cards and jewelry presented by Saudi Arabia. It was also out of prevention for him that Moraes reported a petition about a coup plot, in which he authorized Operation Tempus Veritatis.

Moraes is also the rapporteur of the different investigations launched to investigate the coup attacks on the 8th of January, in which prevention was justified due to the investigation into the anti-democratic acts of the 7th of September 2021. It was in this, in fact, that Moraes issued the first orders, hours after the episode, such as the vacating of camps in front of barracks and the removal of Ibaneis Rocha (MDB) from the Government of the Federal District.

Opened targeting characters such as the singer Sergio Reis and the truck driver Marco Antônio Pereira Gomes, known as Zé Trovão, now a federal deputy for PL-SC, the report for this investigation went to Moraes based on a confidential petition.

In a vote by minister André Mendonça on the Supreme Court’s competence to judge January 8, the magistrate says that such a petition was prevented by the investigation into digital militias – the Sheet questioned the STF regarding the distribution of the petition, but received no response.

In a vote on January 8, ministers André Mendonça and Kassio Nunes Marques were the only ones to assess that the Supreme Court was not competent to judge the cases, but the Federal Court was.

Renato Vieira, who is a lawyer and president of IBCCrim (Brazilian Institute of Criminal Sciences), sees the very systematic nature of prevention as problematic. “This means that the first judge tends to become the only judge of the facts related to that first one.”

According to him, in general, the courts do not detail the evidence that supports the evidentiary connection, especially in complex investigations.

As for these investigations being processed in the STF under Moraes’ rapporteurship, he sees what appears to be an excessive branching of investigations into petitions, which, in his view, makes it even more difficult for those under investigation to understand the entire investigation. Furthermore, he finds it difficult to see a connection in some cases, such as between the falsification of vaccination cards and the investigation into digital militias.

Marina Coelho Araújo, criminal lawyer and counselor at IASP (São Paulo Lawyers Institute), explains that exceptions to the free distribution of processes seek efficiency and procedural economy.

In the cases in question, she considers that greater transparency would be needed, because not all investigations seem to be connected, and in this case it is necessary to separate them and distribute them freely. “If there’s no connection, there’s no prevention.”

An example that she cites as strange is Covid’s CPI and the investigation into fake news. “These are issues that, at some point, are interconnected because there was fake news related to Covid, but the facts are very different,” she says.

Helena Regina Lobo, who is a lawyer and professor of criminal law at USP, states that the lack of transparency in some of the processes makes it difficult to analyze whether or not there is prevention. But she considers that, despite public scrutiny having this obstacle, the validation of the other ministers for Moraes to continue as rapporteur is a relevant element.

“It is possible that this connection really exists, but we have not demonstrated this publicly due to secrecy, because this investigation is still ongoing.”

See some of the inquiries and petitions under Moraes’ report

Inquiry 4781: Fake news
Current status: Confidential
Moraes was appointed rapporteur without a draw

Inquiry 4878: Leak of confidential PF data
Current status: Public
Distributed for prevention
Justification: fake news investigation

Inquiry 4888: Covid CPI
Current status: Public
Distributed for prevention
Justification: petition 10007, which had been distributed to Moraes due to the fake news investigation

Petition 10391: Suspension PCO profiles
Current status: Public
Distributed for prevention
Justification: in decision Moraes determined prevention through the fake news investigation

Petitions 11108, 12155 It is 12027: Misuse of Abin and FirstMile
Current status: Confidential
Distributed for prevention
Justification: in decisions Moraes points to prevention through the fake news investigation

Inquiry 4933: About actions against PL 2630 by Google and Telegram
Current status: Public
Distributed for prevention
Justification: fake news investigation appears as a justifying process and that of digital militias as related

Inquiry 4828: Undemocratic acts of April 2020
Current status: Public
Distributed by lottery

Criminal action 1044: Daniel Silveira
Current status: Public
Distributed for prevention
Justification: petition 9456, which had been distributed to Moraes due to the investigation into undemocratic acts in April 2020

Inquiry 4874: Digital militias
Current status: Public
Distributed for prevention
Justification: investigation into undemocratic acts of April 2020

Petition 10543: Scam in a WhatsApp group of businesspeople
Current status: Confidential
Distributed for prevention
Justification: in decision Moraes points to investigation of digital militias

Petition 12100: Coup plot under Bolsonaro management
Current status: Confidential
Distributed for prevention
Justification: in decision Moraes points to investigation of digital militias

Petitions 10405, 11645: Vaccination cards and jewelry from Saudi Arabia
Current status: Confidential
Distributed for prevention
Justification: there is no explicit mention of prevention in the decisions analyzed, the cases are connected to the digital militia investigation

Inquiry 4879: inquiry into undemocratic acts of 7.Sep.2021
Current status: Confidential
Distributed for prevention
Justification: petition 9855 (confidential), which, according to André Mendonça’s vote, had been distributed as a precautionary measure to Moraes due to the digital militia investigation

Inquiry 4920: 8/1 Funders
Current status: Justice Secret
Distributed for prevention
Justification: investigation into undemocratic acts of September 7, 2021

Surveys 4921, 4922 It is 4923: 8/1 attacks
Participants are respectively identified by instigation; executors and intellectual authors; and silent authorities
Current status: Public
Distributed for prevention
Justification: investigation into undemocratic acts of September 7, 2021