Supreme Court Decision Re-opens Cases Using Shared Data without Judicial Authorization

ecisRIO DE JANEIRO, BRAZIL – The Federal Supreme Court (STF) authorized on Thursday the sharing of data from the Federal Treasury and the Financial Intelligence Unit (UIF), formerly the Council for Control of Financial Activities (COAF), with the Prosecutor’s Office (MP) without explicit judicial authorization.

The full court decision overruled a preliminary ruling issued in July by Presiding Justice Antonio Dias Toffoli, which led to the suspension of over 900 cases involving the sharing of data – among them the investigation surrounding Senator Flávio Bolsonaro, whose counsel had filed the petition seeking a stay.

The STF has yet to determine details on the scope and appropriate method for the sharing of confidential data between the inspection and investigation bodies. This is called a trial argument. After announcing the outcome of the trial on Thursday, the Presiding Justice announced that the argument will be discussed next week.

Toffoli, who inaugurated the first session of the trial with reservations about the sharing in a vote regarded as confusing, made a point of emphasizing, through advice, that “at no time did he suggest restrictions on the performance of the COAF/UIF”.

One of the points that remains to be detailed is whether prosecuting attorneys can request financial reports to the tax bodies. This point has a direct impact on Flávio Bolsonaro’s case. The son of President Jair Bolsonaro was involved in an investigation of money laundering and corruption after the COAF identified suspicious transactions of an advisor in the Legislative Assembly of Rio, Fabrício Queiroz, all of which were reported by the then COAF.

Based on this report, investigators called for a report on Flávio Bolsonaro – this is precisely the aspect called into question by the senator’s defense. One of the investigators’ assumptions refers to the practice of kickbacks, the irregular (but quite common) confiscation of a part of the salaries of cabinet employees and advisors, something that Flávio has always denied.

Despite having attracted major national repercussion for impacting the investigation against the president’s son, this specific STF judgment was not directly related to Flávio’s case. The justices considered (and granted) an extraordinary appeal made by the Federal Prosecutor’s Office against a decision of the Regional Court of the 3rd Region, which overturned a sentence against owners of a gas station who had withheld taxes.

The defense of these businessmen claimed that the Prosecutor’s Office had used data irregularly disclosed by the Federal Treasury. This specific case began to be discussed in the Court on November 20th, with the feature of having general repercussions. In other words, what was decided in this STF ruling would apply to all similar cases that had been suspended by Toffoli’s preliminary decision.

In theory, the scope of case law defined in this STF session would apply only to data sharing by the Treasury. However, prompted by a petition by Flávio’s defense, Toffoli also included the COAF/UIF in the trial, a move criticized by some of the justices. Four magistrates were against the inclusion of the UIF in the sharing of data: Celso de Mello, Marco Aurélio Mello, Cármen Lúcia, and Rosa Weber, who should see their votes defeated in the next session if their peers do not change their minds.

After the magistrates establish next week the legal argument for the trial, it will be up to the Prosecutor’s Office or the parties involved in the more than 900 cases that had been suspended to summon the judiciary for these cases to be reopened. In Flávio Bolsonaro’s case, investigated in the Queiroz case, this decision will be incumbent on judge Flávio Itabaiana, of the 27th Criminal Court of Rio. He will be in charge of deciding if the methods used by the COAF and the MP in the investigation against Bolsonaro’s firstborn are in accordance with what was defined by the Supreme Court.

A number of the senator’s defense arguments were apparently overturned by the STF’s decision on Thursday. Flávio’s attorneys alleged throughout the investigation, for instance, that there was an irregular breach of their client’s bank confidentiality in the transfer of data from the COAF to the MP, something that the Supreme Court has now ruled to be regular.

A hazy point that should be analyzed by the judge of the 27th Circuit Court of Rio concerns the defense allegation that the prosecutor called on the COAF to deepen its investigation into the Senator: in the opinion of some STF Justices, this would be irregular.

A further controversial point concerns the way in which the data were requested and submitted: the means used would have been e-mail and not the official system, according to the Senator’s defense. This specific point has been criticized by several justices: “This cannot be dealt with by email,” said Luis Roberto Barroso.

Source: El País