November 09 2010
Among other things, Brazilian public prosecution offices are responsible for maintaining order and obedience to the Constitution. They cannot disregard basic rights guaranteed by the Constitution under the pretext of promoting public welfare. Thus, the Superior Court's recent decision regarding Writ of Mandamus 2383 is admirable.
The issue began when a Sao Paulo public prosecution office opened a civil investigation into the verification of alleged irregularities by members of the Universal Church of the Kingdom of God. As part of the investigation, based on a mutual legal assistance treaty between Brazil and the United States, the office filed a request to obtain relevant information regarding alleged illicit bank transactions.
The church filed a petition for a writ of mandamus against the public prosecutor of the Ninth Sao Paulo Public and Private Assets Prosecution Office. The church also sought cancellation of the request for mutual assistance. The lower court cancelled the request, which sought to breach bank confidentiality. The decision was based on the fact that the office did not have the necessary legal authorisation to request mutual assistance.
The office asked for deferment of the court's sentence, arguing that the investigation sought to find evidence of illicit use of religious entities to create wealthy individuals through the embezzlement of assets. The office claimed that the requested mutual assistance sought to seize assets and breach bank confidentiality by requesting from the United States documents dating back to as early as 1992.
The court's decision was upheld. The court considered that even if the investigation were relevant, the request for mutual assistance would fail to comply with legal requirements and restrictions, particularly when it could result in the disclosure of private information. The office appealed to the High Court, requesting a writ of mandamus and alleging serious damage to the public order.
Faced once again with abuse by public prosecutors, Honorable Minister Ari Pargendler reaffirmed the decision that public prosecution offices cannot breach individuals' bank confidentiality without making a prior request and, in particular, obtaining the legal authorisation to do so, even in cases of international mutual legal assistance requests.
This decision demonstrates that public prosecution offices are an extension of the government; they cannot disregard legal rules and they must submit to orders by the judiciary branch.
This case is also noteworthy because it involves an investigation conducted abroad, in which a public prosecution office sought to breach the defendants' confidentiality through the US government, without the proper Brazilian authorisation. Brazilian public prosecution offices often use requests for international mutual legal assistance in criminal and civil cases, and this decision effectively limits the offices' powers in this regard.
Minister Pargendler stated as follows:
"Brazilian authorities (in this case, the Prosecution Office) cannot try to obtain something abroad that is forbidden in its own country. Accordingly, it seems audacious to allow the [Prosecution Office] to request the breach of bank confidentiality abroad, knowing that in Brazil, such a measure requires a proper judicial warrant. In fact, the breach of bank confidentiality is an irreversible act, which can bring about the opposite danger: that the confidentiality be breached and the act later be deemed illegal."
The Superior Court's decision is not intended to interfere in the investigations or allow impunity, but rather seeks to ensure that the evidence acquired by the public prosecution office can eventually be used to assist in future proceedings. It would make no sense to allow the mutual assistance and then, after the criminal proceeding had been filed, declare that the evidence was inadmissible because it was obtained without the necessary legal authorisation.
Accordingly, this decision is to be admired: it reaffirms the understanding that public prosecution offices must comply with constitutional rules or face the penalty of a legal challenge.
For further information on this topic please contact Eduardo Maffia Queiroz Nobre or Silvio de Souza Garrido Junior at Leite Tosto E Barros Advogados by telephone (+55 11 3847 3939), fax (+55 11 3847 3800) or email (firstname.lastname@example.org or email@example.com.)
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Silvio de Souza Garrido Jr