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The decision of Panel 5 of the STJ (Superior Court of Justice) by 4 votes to 1 to annul the decision that authorized the breach of bank and fiscal secrecy of Senator Flávio Bolsonaro (Republicans-RJ) and more than 100 other people and companies. Not to solve the problems of the president’s eldest son in the “cracked” process, in his previous office in the Legislative Assembly of Rio de Janeiro.
Most of the ministers considered that the decision of Judge Flávio Itabaiana, of the 27th Criminal Court of the Court of Justice of Rio de Janeiro, was missing. The magistrates criticized that the judge decided with only a five-line paragraph in which he referred to the data presented at the request of the Public Ministry of Rio (MP-RJ).
The column found, however, that the lack of reasoning of the decision that eliminated confidentiality is something that can be reversed if the MP submits a new request for non-compliance to the Special Organ of the TJ, the new competent court of the case. If the rapporteur authorizes the measure and justifies it correctly, the financial data could be reused.
The legal issue to be discussed will be based on the evidence that had been previously obtained due to the information found in the breaches.
The precautionary measure was decided in April 2019 and the data obtained was widely used by the MP to search and apprehend in more than 20 addresses by the end of that year. That’s when prosecutors collected cell phones from various targets.
In June of last year, part of this information about the breakages and cell phones was used in the arrest request of Fabrício Queiroz, designated as operator of the scheme, and his wife, Márcia Aguiar. Later, in October, information about the breakdowns and raids was also on several pages of the complaint filed against the senator for embezzlement, money laundering and criminal organization.
Magistrates heard anonymously by the column affirm that for other evidence, obtained from these ruptures, it would be necessary to request the renewal of the acts that instructed them. It would even be possible to cite the financial data obtained, legally, in a new decision.
“Or that we cannot or no new request to support the information obtained illegally, a canceled proceeding. It is necessary to request anew using information and data that have not been recorded two files before the bankruptcy or that we see the files with a causal relationship with the illegal bankruptcy”, he explained one of them.
Other jurists, however, believe that it would not be possible to use this test again because it would put the theory of the fruit of the poisoned tree: the evidence obtained from an annulled decision is also null. The column found that this will be one of the struggles for the defense of Flávio Bolsonaro from now on.
The truth is that the senator won again and again before the analysis of the Special Agency of the complaint offered by the MP.
But this Tuesday’s favorable score can still be increased in the next session of the 5th Panel of the STJ. The ministers will also analyze a defense appeal that requests the nullity of all the decisions of Judge Flávio Itabaiana since the 3rd Criminal Chamber of the TJ-RJ granted a special forum to the senator.
The defense alleges that, therefore, not only the violation of confidentiality, but the other precautionary measures are null and void. In the Chamber, in June last year, the defense lost 2-1 and precautions were maintained. The position of the STJ ministers remains to be seen. Minister João Otávio de Noronha hinted that he should vote again in favor of Flávio. Minister Felix Fischer has already denied the measure in a preliminary order.
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