06/22/2024 – 12:31
The decision of the Superior Court of Justice to only authorize the sharing of Coaf data with the Police and the Public Prosecutor’s Office when, in fact, there is a formal investigation underway puts an end to the ‘illegal fishing expedition’, in the opinion of criminal lawyers.
Conrado Gontijo, PhD in Economic Criminal Law from USP, notes that the requirement for prior authorization from Justice for the Financial Activities Control Council to release information has been waived by the higher courts. But he argues, in line with the STJ’s decision taken on the 18th, that Coaf data can only be obtained by the police authority or the prosecutor exclusively when an investigation procedure has already been formally established.
Outside of this hypothesis, in Gontijo’s understanding, ‘it is opening a dangerous path to arbitrary action and even more serious violations of fundamental rights’.
“It is necessary to recognize that Coaf data is essential in criminal investigations, but access to it needs to be done with complete discretion and formalization, avoiding abuse and illegal fishing expeditions”, he warns.
The trial last Tuesday, 18th, was carried out by the ministers of the Fifth Panel of the STJ. Lawyers assess that the result is a ‘turnaround’ in relation to another trial, which took place in May, when, unanimously, the panel validated the sharing of confidential financial information with criminal investigation bodies without the need for prior judicial authorization.
That decision was based on a premise established by the STF, authorizing sharing, as long as there was a formalized investigation.
Now, the STJ ministers have addressed a demand from the Police, which asked Coaf for data to provide a preliminary check, a mechanism that precedes the regular opening of the investigation. The STJ decided, by three votes to two, that the investigation was necessary. In this case, the ministers concluded that sharing was illegal and annulled evidence obtained by the Public Prosecutor’s Office.
For the former judge of the Federal Regional Court of the 3rd Region (TRF-3), in São Paulo, Cecília Mello, now a criminal lawyer, the STJ’s decision ‘is an important step towards legality’ as it makes it mandatory the prior initiation of an investigation, and not any procedure.
“The need, reasonableness and proportionality of a measure of this nature, notably for criminal purposes, can only be assessed through due legal process, with prior action by the Judiciary. It is the principle of reservation of jurisdiction, as determined by the Constitution”, states Cecília.
It recognizes that the sharing of financial information at the administrative level has been made more flexible in favor of transparency, globalization, international compliance rules and the fight against tax evasion and currency evasion. But he does not agree with this possibility, especially in criminal matters and even with the understanding already established by the STF.
Ana Carolina Piovesana, a specialist in economic criminal law at FGV, agrees with lawyer Conrado Gontijo. For her, the decision of the Fifth Panel of the STJ is ‘absolutely correct’ and reinforces the importance of clear and precise guidelines for requests for reports to Coaf. “The existence of a police investigation, formally established, is an essential requirement to avoid persecutory abuses, indiscriminate investigations of citizens’ confidential data and to prevent Coaf from being used to carry out secret investigations, outside the law, in a clear evidentiary search ”, he emphasizes.
Criminalist Fernando Hideo Lacerda, professor of Criminal Law at Escola Paulista de Direito, says that due to violation of Theme 990 the issue will probably be taken to the Federal Supreme Court. “Apparently, there is a contradiction between the STJ’s decision and the guidance consolidated by the STF in general repercussion, since the Plenary recognized the legality of sharing data without judicial authorization, both spontaneously and provoked by the Public Ministry. Instability in jurisprudence generates serious legal uncertainty. The Supreme Court must establish clear criteria for data sharing by Coaf”, he suggests.
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