Brazil’s Bolsonaro seeks to prevent STF from bypassing Prosecutor’s Office when opening investigations

RIO DE JANEIRO, BRAZIL – In a new chapter of the open dispute with the Federal Supreme Court (STF), Brazil’s president Jair Bolsonaro criticized the article of the Supreme Court’s Rules of Procedure that allows for the initiation of ex-officio investigations, without having heard the Prosecutor General’s Office (PGR).

The provision has been used to justify initiating the investigation into the Fake News case that targeted the president and many of his supporters.

In a complaint sent to the STF on Thursday , August 19, the Federal Solicitor General (AGU) requested the temporary suspension of the article until a final decision of the issue is reached by the full Court.

The document is signed by the Solicitor General and the President. The AGU argues that the article violates fundamental precepts, such as the principles of an accusatory system, avoidance of courts of exception, and legal security.

In question is Article 43 of the Court’s internal regulations, according to which “if a violation of criminal law occurs at the seat or location of the Court, the Chief Justice will open an investigation when it involves an authority or person subject to its jurisdiction.”

The provision is atypical, because the Brazilian court system is based on the accusatory principle, i.e. one body – usually the public prosecutor – files a petition for investigation and eventual indictment, and only then does the court begin to act.

The government argues that the provision opens a loophole for the accumulation of powers in the hands of Supreme Court Justices and can quickly lead to abuse.

In 49 pages, the AGU refers specifically to the Fake News inquiry and what it calls “excesses” committed during the criminal investigation led by Justice Alexandre de Moraes. Opened in March 2019 to investigate fake news, crimes and threats against members of the Supreme Court, it later targeted the President, after his repeated criticism of the electronic voting system as subject to fraud.

“It is necessary to find a reflective balance between the accusatory system, due process and defense of institutions, under penalty of, under the pretext of a legitimate defense of prerogatives, justifying the arbitrary exercise of one’s own motives,” the AGU argues.

“Most flaws observed stem from the fact that the Federal Supreme Court has endorsed the exercise of atypical investigative competence far beyond the Court’s jurisdiction, which ultimately implied, by indirect means, the creation of an illegitimate form of special forum based on the victim’s governmental position.”

The government goes back to the source of the inquiry, and challenges the grounds used to open it. The AGU says that no “concrete fact” was given to justify the investigation, which would have paved the way for new investigation fronts to be included in the line initially established.

Another point challenged by the government is the power of the STF Chief Justice to assign the Justice responsible for conducting and reporting investigations based on internal regulations, rather than making assignments by random from among the Justices, as is the case with most cases heard by the STF.

This was the case with the fake news inquiry, in which then Chief Justice Dias Toffoli assigned Alexandre de Moraes to oversee the Federal Police investigative work. The full court later ratified the assignment.