STF pretexts for investigations begin to be replicated at the local level

Local courts and police forces in several regions of Brazil are locally reproducing some patterns of the controversial investigations initiated ex officio by the Federal Supreme Court (STF), signaling a tendency for the model of judicial persecution that has become common in the country’s main court to spread to lower courts. .

Taking inspiration from STF cases, local authorities have issued decisions and conducted operations that cite crimes such as “violent abolition of the democratic state” and “fake news”. In some situations, the conduct investigated is nothing more than criticism or verbal insults against figures in the justice system or government authorities.

The most emblematic episode of the trend occurred on February 7 in Carauari, in the interior of Amazonas, where judge Jânio Tutomu Takeda ordered the arrest of police chief Regis Cornelius Silveira after being accused of corruption. The arrest was justified with a list of criminal types that included “violent abolition of the Democratic Rule of Law” – the same one that currently appears in several investigations initiated ex officio by the STF and which motivated the arrests on January 8th.

A video of the moment in which the two enter into a verbal conflict was published by local media on social media. The situation escalated when the police chief stated that the judge was “one of the biggest elements of corruption in the city” during a judicial inspection at the local police station. Immediately, the judge placed the police officer under arrest; subsequently, he used the crime of “violent abolition of the Democratic Rule of Law” as justification for the detention. The police chief’s defense appealed to the Superior Court of Justice (STJ), which, on February 14, ordered his release.

Carauari’s case has an obvious parallel with the incident involving minister Alexandre de Moraes and his son at Rome airport. Recently, the investigation into Moraes’ case was closed by the Federal Police due to lack of evidence. The STF investigation also investigated the crime of violent abolition of the Democratic Rule of Law after an alleged offense against the magistrate.

In São Paulo, at the beginning of January, protesters opposing the increase in public transport fares were detained by the Military Police (PM). In the police report, among accusations such as “corruption of minors” and “criminal association”, was the crime of “violent abolition of the democratic rule of law”. According to the UOL portal, the young people were carrying objects such as a knife, pocket knife and hammer, as well as gasoline, bottles, gases and flammable liquids, which justified the police’s claim that there was an attempt to abolish the Rule of Law.

In Mato Grosso, in February, the Civil Police’s “Operation Fake News” carried out three search and seizure warrants at the homes of journalists who criticized Governor Mauro Mendes (União-MT), under the accusation that they had disseminated false information, as has become common in cases involving right-wing journalists. The operation was recently criticized by the Journalists Union as an attack on press freedom. Among the targets was Alexandre Aprá, previously convicted of slander against Mendes.

“Example comes from above”, says jurist

Lawyer and legal consultant Katia Magalhães sees the risk of trivializing the use of justifications used by the STF in its investigations. “The defects observed at the top of the judiciary tend to multiply in lower courts, especially in the most distant corners. After all, the example comes from above”, she states.

For her, the escalation of sanctions for “crimes of opinion”, without respect for due legal process, tends to spread legal uncertainty. “We observe this growing unpredictability in the criminal area, with the increasingly imminent prospect of criminal sanctions for the mere taking of positions, which constitutes the return of so-called ‘crimes of opinion’, absent from our scenario since the military dictatorship. In the opposite direction , the STF, the STJ and other courts have disregarded criminal legislation to determine the release of highly dangerous criminals, such as, for example, drug traffickers, many of whom are detained in flagrante delicto”, he comments.

In the case of the accusation of “violent abolition of the Democratic Rule of Law”, she sees an “excessively broad interpretation of the crime”, which has served “to justify the punishment of mere speeches in the context of a criminal type whose consummation would require the attempt to take effective use of powers, through tanks and armed groups in the streets”.

According to the lawyer, the situation tends to worsen in smaller districts, where “the scarcity of resources, greater misinformation among populations and less media visibility encourage all types of abuse.”

Katia highlights that the consequences of the STF’s recent conduct will also begin to be felt by the left – as has already occurred, for example, in the case of Operation Fake News in Mato Grosso.

“When constitutional and legal principles are trampled on by magistrates who should uphold them, everyone can be the target of restrictive measures, which are no longer taken based on the country’s legislation, but with a view to achieving generic purposes, such as ‘ preservation of democracy’ or the ‘elimination of hate speech’. The recent trajectory of the STF – and also of lower courts – towards abandoning the strict precepts of the laws to base their decisions on concepts like these, which, being so abstract, leave room for any type of interpretation, has been the biggest factor in generating legal uncertainty in the country”, he observes.