The decision to archive the fake news investigation, determined on Monday (9) by the president of the STF (Supreme Federal Court), Edson Fachin, does not mean that the processes that arose from the investigation are also closed.
Only inquiry 4,781 was archived, called the mother inquiry and opened ex officio in March 2019 by the then president of the court, Dias Toffoli, and conducted by Alexandre de Moraes until September.
However, as a result of this investigation, complaints were filed and will continue to be processed. Furthermore, there are almost a hundred procedures linked to the main investigation and whose fates are still being evaluated individually by Fachin, who transferred the reporting of the cases to the presidency of the STF in September.
Depending on the specific case, they can either be archived, gain new rapporteurs or go to other instances.
The change of rapporteur took place at one of the most acute moments of the crisis at the Supreme Court, when André Mendonça made public a report from the Federal Police that pointed to dialogue between Moraes and Daniel Vorcaro, former owner of Banco Master. In response, Moraes used the fake news inquiry to ask that his colleague be investigated for abuse of power. After that, Fachin decided to take the lead in the investigation.
In the past, in 2020, Fachin was the rapporteur of the action that questioned the constitutionality of the case and voted for the validity of the procedure. The then Minister Marco Aurélio Mello was the only divergence.
Understand the effects of the filing decision on related proceedings.
What ends
In the main investigation, steps can no longer be taken, such as investigation requests, breaches of confidentiality and search and seizure orders.
The so-called prevention also ends. Until now, new facts that were considered linked to the main inquiry went directly to the same rapporteur, instead of being distributed by lottery among the ministers. This was what made the investigation a trunk from which new investigations emerged, and which maintained a series of cases under Moraes' leadership.
When deciding to archive, Fachin argued that the order opening the investigation delimited an object, and that it could not be expanded indefinitely. He also cited an article of the Constitution that deals with the principle of reasonable duration of the process.
He points out, however, that, according to the Code of Criminal Procedure, the investigation can be resumed if new evidence emerges — which was also mentioned by the PGR (Attorney General's Office), which requested closure.
What continues
The inquiry is a preparatory stage of investigation, which allows the Public Prosecutor's Office to decide whether to accuse. Once an accusation is accepted, the process takes on a life of its own. Criminal actions arising from the fake news investigation in which the complaint has already been received, in principle, must continue in the courts and tribunals where they are being processed.
As Folha showed, the main investigation and its ramifications resulted in only eight complaints presented by the PGR and effectively linked to the initial motivation of the investigation: crimes of insult, slander, defamation or threats to STF ministers.
In his decision, Fachin even cites 1,600 criminal actions originating from the investigation, a number that includes, however, the January 8 cases.
What is still being analyzed
In addition to the main investigation, there are 104 other procedures linked to it. This list includes, for example, both petitions and other inquiries. Since September, when Fachin removed the main investigation from Moraes, these cases have also been passed to the Presidency of the STF.
Each of these procedures is being examined separately, in the files themselves.
Some have already been resolved: an investigation, for example, was sent to another instance, with the understanding that the STF was no longer competent for the case; a petition was redistributed among the Supreme Court ministers; other cases, as with the main investigation, were archived.
Blocks, passports and other restrictions
The decision does not inform how many precautionary measures, such as blockades and restrictions on those under investigation, are still in force nor who is affected. Determinations of this type that are still valid do not fall automatically. It will be up to the magistrates responsible for the procedures in which they were given to decide, in a well-founded manner, whether to maintain, replace or revoke them.
Discussions from the archive
Fachin also tried to close the door on requests for annulment. According to the minister's decision:
the closure of the investigation is not, in itself, a reason for cancellation
eventual failures in the investigation only contaminate a criminal action if there is a direct connection with it and proven harm to the defense;
the archiving does not affect convictions, acquittals, agreements and complaints already received;
Toffoli's ordinance that opened the case was not annulled.
On the other hand, the decision also does not declare, in general, that the evidence gathered is valid. According to the minister, these questions will be submitted "to the competent jurisdictional bodies in the procedures in which such elements may be used".
