tactic has been used in the STF to try to find a crime

The Federal Police’s analysis of the images of the alleged attacks against minister Alexandre de Moraes at Rome airport, on July 14, released this Wednesday (4), fails to reach a precise conclusion.

The report, which forms part of the investigation opened at the Federal Supreme Court (STF) at the request of Moraes himself, states that the absence of other image or audio recordings “made it difficult to fully elucidate the facts.” Roberto and Andreia Mantovani, accused by Moraes, according to the document, “may have possibly offended, insulted or even slandered” minister Alexandre de Moraes and his son, and the latter was reportedly hit in the face with an “apparent slap “.

The vague expressions used in the report – “possibly”, “may have offended”, “apparent slap” – draw attention both to the conclusion of the document, which leads to blaming them despite the absence of evidence, and to the abusive treatment employed by the Police Federal against the couple since the beginning of the investigations.

On July 18th, when giving testimony, Roberto and Andreia were surprised with questions that tried to relate the two to the acts of vandalism on January 8th, in Praça dos Três Poderes, in Brasília, a topic unrelated to the incident that occurred at the airport. from Rome. The two were asked about their possible participation in demonstrations in front of the barracks after the 2022 elections and whether they had disseminated messages against electronic voting machines.

The perplexity increased when, after the statements, the agents searched them and then left to carry out search and seizure warrants at their homes, where cell phones and computers were confiscated, a measure not provided for in Brazilian law in a case of suspected crimes against honor. . “The search and seizure to investigate a crime against honor is something that does not exist in doctrine and jurisprudence, the offense begins and ends with someone’s speech, there is nothing more to investigate”, explains constitutional lawyer André Marsiglia.

The practice carried out by the PF at the behest of the STF is known as probationary fishing, a translation of the term “fishing expedition”.

The term describes operations in which, under the pretext of investigating a crime (generally something of lesser impact), authorities order the seizure of items little or nothing related to the initial object of the investigation. The objective: to obtain evidence of other crimes.

In other words, evidentiary fishing consists of an investigation without a well-defined scope, which uses pretexts to obtain documents, cell phones and computers. Having this material on hand, investigators can “by chance” find other signs of crimes, even if they are not related to the topic of the initial investigation. This is what jurists call a “fortuitous encounter” of evidence. In this case, the police seemed to be looking for ways to link the couple to the acts of January 8th and, from what has been reported so far, they were unable to find any.

The practice of probationary fishing is usually condemned in democracies, and also until now by the STF and other courts, as it is considered an abuse of the State over the individual. In this system, it is considered that there is bias on the part of those who investigate – through a series of violations of the rights of the person affected, they try to find something that could incriminate them.

In 2014, for example, minister Gilmar Mendes granted a habeas corpus to banker Daniel Dantas alleging that, when conducting a search and seizure in one of the offices of the person under investigation, the police searched an area that was not explicitly mentioned in the court order. The minister ordered that the seized material be returned immediately. The 2nd Panel of the STF confirmed the decision.

“The search and seizure of documents and objects carried out by public authorities in someone’s ‘home’, without substantiated judicial authorization, prove to be illegitimate and the material eventually seized constitutes illicitly obtained evidence”, stated Mendes in his decision.

Even so, the STF has acted this way in recent years, not just in the Mantovani case.

In the investigation of the businessmen investigated for allegedly exchanging “coup” messages on WhatsApp, the investigation ordered by the STF obtained, in a questionable (and disproportionate) way — through seized cell phones — messages sent by the then President of the Republic, Jair Bolsonaro .

In another case, an investigation into fraud in vaccination cards, apparently operated by Colonel Mauro Cid Barbosa, led to the seizure of the cell phones of former president Jair Bolsonaro and former first lady Michelle Bolsonaro, a disproportionate measure. The case is even more peculiar because, although it dealt with an investigation into document fraud involving an investigator without privileged jurisdiction (Mauro Cid), the investigation of the facts took place in the STF itself.

What these cases have in common is the fact that they are under the command of Minister Alexandre de Moraes.

In Cid’s case, Deputy Attorney General of the Republic Lindôra Araújo expressed concern about the minister’s procedure, as she had already done in the case of businessmen. As shown in a VEJA magazine report, she also stated that this would not be the first time that the court was exceeding its limits.

“The elements highlighted are too incipient to recommend any steps or measures against those being investigated, under penalty of validating the probative fishing, similar to other investigations underway within the scope of the Federal Supreme Court”, wrote Lindôra.

In the case of the Mantovani, the attempt to link them to January 8th would place them in the hands of Moraes himself, who claims to be a victim of the attacks at the airport – making him the accuser, victim and judge of the case. “We cannot fail to note that, depending on the outcome of the investigation, those investigated could be included in the investigation into undemocratic acts, currently being processed by the STF, and the jurisdiction to investigate and judge the case would lie with the Court, more specifically, with the Court. victim of the attack himself, the rapporteur of the investigations, Minister Moraes”, explains Marsiglia.

>> Be part of the channel Life and Citizenship on Telegram

Legal instability

The use of “evidence fishing” would already be reprehensible if it were applied uniformly to all those investigated. But the situation is even worse because, recently, the court has adopted a different criterion in other cases. There are two weights and two measures.

The Supreme Court itself has restricted what it considers legitimate evidence. In recent weeks, Minister Dias Toffoli annulled all the material obtained from the Odebrecht whistleblower.

The decision is based on private messages obtained by hacker Walter Delgatti Neto. The court considered the use of the material valid, which would show irregularities in Odebrecht’s testimony. But, if it were to apply its own criteria, the Supreme Court would have to discard the messages obtained by the hacker.

The court’s jurisprudence treats evidence obtained through crime as null and void. In a 2017 trial, for example, minister Celso de Mello recovered an argument he had presented in other similar cases. “No one can be investigated, denounced or convicted based solely on illegal evidence, whether it is original illegality or illegality by derivation. Any new evidentiary data, even if produced, validly, at a subsequent time, cannot be supported, cannot have a causal basis nor derive from evidence compromised by the taint of original illegality”, he wrote.

In other words: even if the messages were found by investigators in a lawful manner (i.e.: the operation that seized the material complied with legal standards), the fact that they were originally the result of a crime (the violation of the cell phones of members of the Lava Jato) disqualifies them. Or should it disqualify.

Strict with police officers

The jurisprudence of the STJ (Superior Court of Justice) is similar. A few weeks ago, the court ruled that police officers cannot use as evidence a message read on a suspect’s cell phone (the device was locked, but the message appeared as a notification on the screen). The magistrates argued that the agent violated the confidentiality of the device without having a court order.

In this case, the police searched a known drug dealer and saw the message. They then decided to go to the house of the person who sent the message. There, this second suspect tried to escape and was arrested. Police found cocaine at the scene.

For lawyer and constitutional law researcher Antonio Pedro Machado, it is acceptable for the STF to change its understanding of the Constitution, as long as it meets two requirements. First, it needs to adapt to the existing mechanisms in the legislation itself to explain the change in understanding. “In addition, it is necessary for the Judiciary to use the means provided for in the legislation to protect the legal relationships that were established under the understanding that prevailed at the time they were established”, he explains. In other words: the new jurisprudence cannot go back in time to punish. “If these two requirements are not observed, the change in jurisprudence can become a serious problem, since predictability, which is the core of legal certainty, ends up disappearing”, explains Machado.

Lawyer Géssica Almeida has no doubt that the STF has acted as a destabilizing agent — including by promoting “probative fishing”. “In the recent past, investigations had strong evidence of the conduct of the alleged agent being investigated. Currently, the search has no defined object or allegedly criminal conduct to be investigated,” she states.

Géssica also says that the consequences of the double standard adopted by the STF spread throughout the Judiciary. “It is practically unanimous in the legal world that constant changes in the interpretation of the Constitution and laws generate legal uncertainty. These are judicial decisions based on unpredictable legal elements and even depend on the judge’s mood”, she criticizes.