The Superior Court of Justice (STJ) has defined that investigative bodies, such as the prosecutor and Federal Police, cannot request confidential information directly from the Financial Activities Control Board (COAF) without judicial authorization.
The decision was made on Wednesday, 14, by the third section of the STJ in an attempt to standardize divergent interpretations on the theme that had been applied to the court.
The trial pressures the Federal Supreme Court (STF) to revisit the matter and to pronounce on gaps arising since the issue was tried in the plenary six years ago.
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In 2019, the Supreme Court authorized the wide sharing of information from the IRS and COAF with investigative bodies, without express judicial authorization.
The STF’s decision was made in general repercussion (theme 990). This means that, from the analysis of a specific case, the plenary has defined a thesis to be applied to similar cases. All judges and courts need to take the Supreme Court’s decision into consideration when judging actions in the lower instances.
It turns out that since then, the first and second Supreme Court classes have have different interpretations about the range of the thesis. The first class considers that the rule also applies to the information request, step prior to data sharing. The Second Class understands that the production of information depends on judicial supervision.
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This was the breach used by the third section of the Superior Court of Justice to analyze the issue.
“As much as it is more appropriate to await a definitive decision from the Supreme Full, it is not possible to expect, both because it is not known when the solution will come and because the ministers of this Court are urged to judge the matter daily,” argued Minister Messod Azulay.
He was accompanied by Otávio de Almeida Toledo, Carlos Marchionatti, Sebastião Reis Júnior, Reynaldo Soares da Fonseca, Joel Ilan Paciornik and Otávio de Almeida Toledo.
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The thesis set by the 3rd section of the STJ is as follows: “The direct request for financial intelligence reports by the Public Prosecution Service to COAF without judicial authorization is unfeasible. The theme 990 of the general repercussion does not authorize the direct request for financial data by bodies of criminal prosecution without judicial authorization”.
In 2024, the first class of the Federal Supreme Court forced the STJ to overthrow a decision made based on the understanding now signed by the third section. The decision in question had been made by Minister Antonio Saldanha. On Wednesday, he stated that, at the time, he fulfilled the order “simply for a hierarchical question, although the understanding of the supreme was not consolidated.”
Ministers Og Fernandes, Rogério Schietti and Ribeiro Dantas were defeated. They argued that, as it was a topic that had the general repercussion recognized in the Supreme Court and that it was already being analyzed by the Supreme Court, the Superior Court of Justice should await a clear orientation. They also argued that the case could be taken by the parties to the Supreme Court.
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Og Fernandes called for “caution and distinction”, “under penalty of compromising the desirable harmony of the jurisprudence of the higher courts”, and warned of the risk of the STJ to enhance divergent interpretations in the lower instances.
“The STJ’s appreciation of expressly constitutional issues by the Supreme Court, especially in general repercussion issues, must be strictly residual and restricted, under penalty of endangering the necessary unity of the legal system and the health of the binding precedent system.”
The issue generates controversy because, on the one hand, lawyers argue that judicial supervision reduces the chance of abusive investigations.
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“Without inquiries instituted, the rifs are stored in drawers in the police stations. This is the reality. This needs to be faced,” warned lawyer Luiza Oliver in oral support at the STJ Tribune.
On the other hand, the organs of criminal prosecution argue that the Coaf requests make the inquiries more efficient.
