STF uses illegal inquiry to investigate deputy for impossible crime, say jurists

An investigation initiated illegally and with several procedural defects served as the basis for making federal deputy Carlos Jordy (PL-RJ) the target of a search and seizure warrant. The parliamentarian was the target of the 27th Operation Lesa Pátria, which investigates the participation in crimes related to the acts of January 8th. Experts say that, in addition to the parliamentarian’s investigation being based on an illegal inquiry, the action demonstrates, once again, an imbalance between powers.

This Thursday morning, Carlos Jordy woke up to find the Federal Police (PF) at his home. The agents also had access to the deputy’s office in Brasília. At least around a thousand reais, a weapon and the parliamentarian’s cell phone were seized.

“The situation is complex because an illegal investigation is being used to investigate a parliamentarian for crimes that did not exist”, said the doctor in Law, Alessandro Chiarottino. “The big problem is not the search and seizure itself at the parliamentarian’s house, that could happen, but the problem is all the defects that surround this investigation, which was opened irregularly and has been maintained irregularly”, he adds.

MPF investigates Jordy as the instigator of the 8/1 acts

The Federal Public Ministry (MPF) considered the parliamentarian as a possible instigator of the acts of January 8th. The search and seizure warrant was based on the interception of Jordy’s message exchanges with a political agent from Campos dos Goytacazes (RJ), who had organized roadblocks in the city.

“Good morning my leader. What direction can you give me? It has the power to stop everything”, the agent told the parliamentarian, on December 1, 2022, referring to the demonstrations after the elections. For Alexandre de Moraes, there was a request for guidance that points to strong evidence of Jordy’s involvement through “direct assistance in the organization and planning” of roadblocks and the alleged existence of a criminal organization that, for the minister, wanted to carry out a coup of State.

“Even if the deputy was inducing or directing any strike, any demonstration, it does not fall within the verbs of abolishing, exterminating or destroying the Democratic Rule of Law”, stated Fabio Tavares Sobreira, professor of Constitutional Law, listing the crimes mentioned by the Prosecutor’s Office- General of the Republic to justify the investigation against the parliamentarian.

“There doesn’t seem to be anything that leads to the conclusion of a coup d’état, at least in the excerpts mentioned,” said Chiarottino. He also recalls that blocking highways as a form of protest is a crime, but it would not be related to a possible coup d’état.

The jurist still considers it a mistake for the Court to treat the invasions and depredations of public buildings as an attempted coup d’état. “Mistaken because any attempted crime, to be characterized, needs to be suitable, otherwise the crime is impossible. Even if they had the intention, those unarmed, disorganized people without a central command could clearly do nothing to threaten the institutional order, so it is an impossible crime,” he explains.

“Witch hunt”

Professor Sobreira clarifies that the legal system endorses search and seizure if there is a risk of evidence disappearing. “The search and seizure is not justified [nesse caso]. If there was a risk of evidence disappearing or hiding, this has already occurred because it has been more than a year,” he adds.

“This measure, with all possible respects to the minister who determined it, is a witch hunt. It’s trying to find something in an egg, trying to find some evidence that justifies the prosecution of a criminal case”, says Sobreira. “The warrant is, yes, arbitrary, it is illegal, it is unconstitutional. This is not a right-wing or left-wing position, but based on the Federal Constitution”, he highlights.

Imbalance between powers

Chiarottino reiterates that the search and seizure measure must be analyzed from a legal point of view, where there are a series of technical problems, but which ends up entering the political field. “This is not a usual situation. We are living in a moment where there is a great imbalance between the powers of the State, great disrespect for the prerogatives of the Legislature”, he states.

“In this context, we can point out that the STF ordering the police to enter the premises of the Chamber of Deputies is yet another measure indicative of this scenario of imbalance”, says Chiarottino.

“We are talking about a deputy and here we need to talk about the Chamber of Deputies. From the moment the Chamber of Deputies made the immunity of deputies more flexible, the Federal Supreme Court has been exaggerating its power and exceeding the limits of the Federal Constitution”, agrees Fabio Sobreira.

The STF took over criminal proceedings related to the acts, alleging that there was participation by people with privileged jurisdiction, such as parliamentarians and heads of the Executive. More than a year after the event, deputy Carlos Jordy is the first parliamentarian targeted by investigation. During this period, the Court was harshly criticized for continuing to be responsible for the investigations, especially after the statement by Minister Alexandre de Moraes of an alleged plan to hang him in Praça dos Três Poderes, which would make him suspect, according to experts, to continue as a judge in these cases.