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On the 14th of March 2019, an unprecedented judicial move rocked the base of Brazil’s Republic. Justice Dias Toffoli, then president of Brazil’s Supreme Court, created Inquiry 4781, now famously known as the “Fake News” Inquiry. The reasoning behind it was to combat "fraudulent news, offenses and threats, which "affect the honour and security of the Federal Supreme Court, its members and their families", in the words of Dias Toffoli. In the Brazilian legal system, an inquiry is the investigative procedure to ascertain the occurrence of a crime and identify its perpetrator.
Three days earlier, on the 11th of March 2019, Crusoé, a Brazilian digital newspaper had printed a news story relating to the president of Brazil’s Supreme Court. It stated that during “Operation Lava Jato”, a landmark anti-corruption probe, a defendant identified Justice Dias Toffoli as being the “friend of the friend of my father”, one of the many codenames utilized by the defendant’s company to encrypt data from investigators. The defendant continued, stating that Dias Tofolli, when on the post of Brazilian General Attorney, was responsible for handling judicial queries of a public tender relating to a hydroelectric plant that interested the defendant’s company, Odebrecht. The news article stated that five months before the public tender was realized in favour of Odebrecht, the defendant asked one of his employees “did you close it with the friend of the friend of my father?”. The article then stated that it sent questions to Justice Dias Toffoli regarding these statements about him.
The inquiry was sent by Dias Toffoli to Justice De Moraes to lead it, and the latter’s first decision was to censor the article, removing it from the internet, with a penalty of 100.000 Reais (about 18 thousand euros) per day if it was not complied by Cruzoé. De Moraes stated that the article was propagating “fake news” as there was no formal accusation against Dias Toffoli. This harsh measure is worrying from a human rights perspective, as it curtained the freedom of expression of journalists to report on public actors, as guaranteed by Article 5, item IX of the Brazilian Constitution and Article 13 of the American Convention on Human Rights (ACHR).
Public outcry was imminent. The Brazilian Association of Investigative Journalism made a statement against the decision, claiming it was a blow against the freedom of expression. The Intercept Brazil, republished Cruzoe’s article in full. The Committee to Protect Journalists – CPJ, an international organization, wrote a statement condemning the censorship and stating that they could not access the decision as it was held in judicial secrecy by the Brazilian Supreme Court. Raquel Dodge, the Prosecutor General of the Republic, Brazil’s highest public prosecutor, stated that the decision that created the Inquiry was unconstitutional and it allowed the Supreme Court to act as an extraordinary court; she further asked for the Inquiry to be withdrawn. Moraes, however, dismissed her proposal and kept the Inquiry in full force.
The Inquiry received additional criticism from politicians and lawyers. The Supreme Court, an organ of the judiciary, opened the investigation against matters relating to members of its own court. Dias Toffoli based this initiative, on Article 43 of the Internal Rules of the Court, which states that "If an offence against criminal law occurs at the seat or premises of the court, the president shall initiate an investigation." The position of the Court is that acts that happen in the internet are accessible from the physical premises of the court (ADPF 572/ DF, 177- p.169), consequently being acts that occur in the jurisdiction of the Court and are open to investigation by it. Therefore, the institution that investigates facts is the same as the one that adjudicates them: this is a typical example of an inquisitorial trial – something contrary to Article 129 of the Brazilian Constitution and Article 5 of the Brazilian Criminal Procedure Code, which gives the Public Prosecutor and the chief police officer the competence to initiate inquiries, thus instituting an accusatory (not inquisitorial) system in Brazil. The competence of the Supreme Court to hear citizens that do not possess legislative or parliamentary immunity was also questioned, as ordinary citizens are normally judged by the first instance of the Brazilian judiciary in cases of libel or defamation. Additionally, the Court’s own Internal Rules which permits it to create inquiries in its physical premisses, was created before the 1988 Brazilian Constitution, during the Brazilian Military Dictatorship, by decree and not by the Brazilian Congress - being a remnant of an authoritarian regime. This is a troubling development to the right to fair trial, as contained in Article 8 of the ACHR and Article 5, item LIV of the Brazilian Constitution – as it is required that a court must be competent and impartial to conduct a due legal process.
Importantly, the Inquiry did not permit public access to it, prohibiting even the Public Prosecutor’s office, lawyers and other Supreme Court Justices. It also did not delimit who was to be investigated for these crimes, being left open ended, only stating as scope “investigated facts and illicit acts in all their dimensions”. In the second phase of the Inquiry, Justice De Moraes broadened its scope to investigate not only instances damaging the honour and security of judges but also schemes involving “mass dissemination on social networks to jeopardize the independence of the judiciary and the rule of law”. It targeted mostly allies of the controversial former president Bolsonaro, which were accused of trying to overthrow the democratic State through the usage of fake news dissemination. The same inquiry then mutated to censor hundreds of social media channels, the arrest and cassation of the legislative mandate of a right wing politician and the expenditure of arrest warrants of journalists (deemed “bloggers”) that supposedly were spreading fake news and attempting to overthrow the democratic state through the dissemination of it.
The political party “Rede de Sustentabilidade”, initiated Constitutional Action ADPF 572, to question the Rules of the Court used as a basis for the criminal Inquiry, and the validity of the Inquiry itself. The Supreme Court, by 10 votes to 1, rejected the challenge. Dias Toffoli stated that it was an “institutional reaction that became necessary due to the escalation of attacks on the Court”. He recalled that he took the initiative only after noting the "inertia or complacency of those who should adopt measures to prevent the increase in the number and intensity of such attacks”.
This progression raises concerns, especially when considering other inquiries conducted by the Brazilian Supreme Court created based on Inquiry 4781 (which is currently on its fourth year), with Justice De Moraes leading them. These have led to several preventive arrests and, more recently, to a death in prison of a defendant that had not been judged yet on his participation on the 8th of January Riots Case. He had a life threatening condition and was waiting for his plea for conditional freedom to be heard by Moraes. After this unfortunate incident, Justice De Moraes let 11 prisoners free, but it was too late.
Brazil belongs to the Inter-American Human Rights system, and therefore has the obligation to abide by the Inter-American corpus iuris. The ACHR is clear, in its Article 8, about the right to a fair trial. It states that every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law. This is clearly not the case in the mentioned Inquiry, as the Brazilian Supreme Court was not the competent court to hear the case and its impartiality is obviously flawed when it adjudicates and investigates offences against itself. Additionally, the internal rules of the Court cannot be extensively interpreted to offences committed on the internet, as this would be a clear breach of the pro homine principle of the Inter-American Human Rights system. This principle states that the interpretation of a rule must be the most favourable to the human person. Therefore, the Supreme Court of Brazil violated the "principle of the natural judge" that forms part of the right to due process and the right of access to justice, embodied in Articles 8(1) and 25 of the American Convention. The principle of the natural judge, was dealt by the Court in Barreto Leiva v Venezuela (para 77), where it stated that an individual must be judged by a competent court determined beforehand by the Legislative. Article 13(2) of the same treaty is also clear regarding Freedom of Expression. When Justice De Moraes censored Crusoé, he breached the obligation to refrain from prohibiting the free speech of journalists, especially in such an important and sensitive topic: the possibility of the president of the highest court having been involved in a corruption scandal.
Conclusively, we hope that in the future when taken to the Inter-American Court of Human Rights, these inquiries be declared null ab initio. As the very beginning of these judicial procedures are full of illegalities, as the inquiry is ultra vires, it disregarded the pro homine principle, the right to a fair trial and freedom of expression. Maybe then it will be possible to turn the page on an authoritarian judicial period in Brazil.
Jan Jansen*
*This is a psedonym. The author wishes to remain anonymous due to security concerns arising from the very Inquiry that is the subject of this piece.