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Plenary concludes judgment on validity of inquiry into fake news and attacks on STF

06/18/2020

The plenary session of the Brazilian Federal Supreme Court (STF) concluded the trial of the Claim of Noncompliance with Fundamental Principle (ADPF) 572 to declare the legality and constitutionality of the Inquiry (INQ) 4781, established with the objective of investigating the existence of fake news, slanderous accusations and threats against the Court, its Justices and family members.

By ten votes to one, prevailed the understanding of the rapporteur, Justice Edson Fachin, that the Claim of Non-compliance with Fundamental Precept (ADPF) 572, whose object was Ordinance 69/2019 of the Chief Justice's Office of the STF, which determined the opening of the inquiry, is totally unfounded, "in the face of incitement to the closure of the STF, threat of death or imprisonment of its members and alleged disobedience to judicial decisions. Justice Marco Aurélio presented the dissenting opinion, and considered the ADPF justified.

Criminal organizations

Justice Celso de Mello noted in his vote that the STF has the extraordinary and atypical function of ascertaining any actual or potential injury to its independence, and the rules of the STF's Internal Rules of Procedure that justified the opening of the investigation qualify as an instrument of protection and defense of order and constitutionality. According to him, there would be no point in removing from the Court instruments that would effectively protect the democratic order, the Democratic Rule of Law and the institution itself.

For the dean, the fraudulent news machine resembles criminal organizations, but with the purpose of intimidating the institution. Justice Celso de Mello stressed that incitement to public hatred and the spread of offenses and threats are not covered by the constitutional clause protecting freedom of expression and thought.

Institutional reaction

The Chief Justice of the STF, Dias Toffoli, said that for some time the Court and its Justices have been under attack and have their integrity and honorability threatened by digital militias that seek to strike the institution and the Democratic Rule of Law. According to the Justice, the establishment of the inquiry, through an ordinance signed by him, is a prerogative of institutional reaction that became necessary due to the escalation of aggressions committed against the Court. He recalled that he took the initiative only after noting the "inaction" or complacency of those who should adopt measures to prevent the increase in the number and intensity of such attacks.

Toffoli stressed that the purpose of the inquiry is not to investigate criticism or mere disagreements with Supreme Court decisions made in the legitimate exercise of freedom of expression, but rather attacks aimed at undermining its institutional credibility. "We are talking about fraudulent news used for the purpose of gaining undue advantage, whether of a political or economic or cultural nature," he said.

Freedom of expression

The only one to disagree is Justice Marco Aurélio, who considers that Article 43 of the STF's Internal Rules of Procedure, which is the basis for the opening of the inquiry, has not been received by the 1988 Constitution. For the Justice, there was a violation of the constitutional criminal prosecution system, which separates the functions of accuser, because the investigative procedure was not provoked by the attorney general of the Republic, and this initial vice contaminates its processing. According to him, the investigations have as object critical manifestations against the Justices who, in his understanding, are protected by the freedom of expression and thought.

PR/CR//CF - CG/FB/GL

Summary of Chief Justice Dias Toffoli’s opinion (in English)

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