The (Federal Supreme Court) has an impasse to resolve regarding the ordering of reports from the (Financial Activities Control Council) without judicial authorization. The court must try to find a middle ground between the currents defended by the ministers.
On the one hand, a wing of the Supreme Court is concerned that the possibilities for investigation are too restricted. On the other, there are ministers who want rigorous standards of analysis and control, in order to avoid abuses of breaches of confidentiality and what they consider to be a distorted use of the tool.
The financial intelligence reports produced by the agency, called exchange RIFs, include tax and banking data and are used in various actions with repercussions across the country, such as the coup plot, which led to the conviction of the former president (), those of January 8th and also in operations on criminal factions, such as the (Primeiro Comando da Capital).
The discussion is open in different court processes. Regardless of the action to be judged first, the assessment is that the Supreme Court has a majority to waive judicial authorization.
The court may, however, establish guidelines to prevent the unrestricted use of this type of request. For example, it may determine that they can only be carried out in investigation procedures that have already been initiated and with a robust basis.
The divergences have generated unequal situations both internally and in relation to cases across the country.
At the end of August, decisions in opposite directions from the ministers made clear the division that exists in the court on the issue.
On the one hand, Moraes suspended all decisions that overturned the validity of these reports and created what he called “undue obstacles” to investigations.
Gilmar decided that the Public Ministry and police authorities cannot request data directly from Coaf without judicial authorization. For the minister, this conduct could constitute an irregular breach of confidentiality.
Moraes’ position prevails in the court’s First Panel, which has broadened its interpretation of the issue, while most of the ministers in the Second Panel follow Gilmar.
There is also an action under the minister’s report that wants validation only of the spontaneous sharing of Coaf reports with criminal prosecution bodies — but not the other way around.
Internally, some solutions are being discussed for the plenary to judge the controversy. There are also intermediate votes that must be presented by the ministers, to cover both wings of the court.
The most obvious solution is to vote on Moraes’ rapporteur case, which has general repercussions. In other words, the defined thesis will affect all others on the topic.
The case is also at a more advanced stage, according to court observers. It is also possible for the cases to be discussed together to definitively pacify the issue.
Coaf interacts in two ways with the police and other investigative bodies. Firstly, it identifies suspicious transactions, produces RIFs and sends them to the competent authorities for further investigation.
In the second, the investigative bodies themselves demand information about certain people or companies. In this case, Coaf searches its database for suspicious transaction notes and then forwards them to the person who requested them.
Decisions related to Coaf have come and gone in the STF since 2019, when a determination by Toffoli paralyzed at least 700 investigations in the country. It was reversed in the plenary after a long discussion.
The analysis of the senator’s (PL-RJ) request to annul evidence in the “rachadinha” case motivated the discussion that culminated in the authorization to share this data with the Public Ministry and the police without the need for prior judicial authorization.
According to Coaf itself, since 2008 the number of RIFs prepared by the body has multiplied, as has the number of exchanges with other entities, such as the Civil Police, the Federal Police and Public Ministries.
In 2008, 1,258 RIFs were produced, compared to 18,762 in 2024. The increase occurred especially from 2015 onwards.
The Civil Police, linked to state governments, have intensified their involvement in the agency. In 2024, there were 13,667 requests, more than double the 6,375 in 2021 — an increase of 114%. There is a greater concentration of investigations related to drug trafficking, fraud, corruption and the activities of criminal factions, according to data from the council.
The controversy spilled over to the (Superior Court of Justice).
“We here at the STJ find ourselves in a very difficult situation. We have already commented on this, because there is a group from the Supreme Court thinking one thing and another thinking another”, said Minister Ribeiro Dantas in a recent session. “When we decide one way, a decision comes giving us a complaint. When we decide another way, it comes from the other group.”
Afterwards, Minister Joel Paciornik reported an episode from his office that highlighted the lack of clarity on the matter.
“The most curious thing is that, in the same week, two monocratic decisions were made, but in exactly opposite directions. Then the advisor came to me and asked ‘who do I obey?’. I said: ‘I don’t know, because in this system we really don’t know who we owe obedience to'”, he said.
Criminalist Leandro Raca states that the excessive liberalization of the power to request confidential data facilitates abusive practices.
“Giving the police station the power to request this data is a huge opportunity for arbitrariness. What’s more, if a prior formal investigation is not required, then you practically have a dossier machine in the hands of any authority”, he says.
