Fachin closes fake news inquiry and keeps evidence

The president of Supremo Tribunal Federal (STF), Minister Edson Fachin, filed on Monday (9) the investigation of the fake news, ending an investigation that had been under the control of Minister Alexandre de Moraes for seven years. The decision removes from Moraes the power to open new fronts of investigation on the subject, although it maintains the validity of the evidence already obtained and allows the continuity of calculations derived with specific focus.

The closure came after Moraes tried to use the investigation to investigate the also minister of STF André Mendonça, in a case involving the Banco Master. When analyzing the material, Fachin criticized the excessive length of the investigation, which already totaled seven years without a deadline to finish. He noted that the procedure has become a generic "matrix" for hundreds of other counts, distancing itself from its original purpose.

End of a non-definite term investigation

In Fachin’s assessment, an investigation cannot remain open indefinitely to aggregate future and uncertain facts. The fake news investigation was launched in 2019 amid attacks on STF ministers and the spread of fake news. Over the years, however, the procedure has become home to a variety of cases, many with no direct relationship to the original object.

According to the decision, the investigation moved away from its original purpose and began to function as a kind of umbrella for various investigations. The source did not detail how many exact cases were linked, but mentioned that there were more than a hundred derived procedures. This amplitude generated criticism that the instrument had become overly comprehensive and uncontrolled in time.

Evidence collected was not annulled

Despite the archiving, the evidence collected on the orders of Alexandre de Moraes was not automatically annulled. Fachin clarified that any irregularities or vices in the investigation do not necessarily contaminate the criminal actions that will follow. In order for an act to be invalidated in criminal proceedings, it is necessary to demonstrate that there was a real injury and a direct relationship of cause and effect.

In practice, this means that the evidence already gathered can be used in future proceedings, provided that each case is analyzed individually. The decision preserves the investigative work carried out over the years, but imposes a new model of processing. Investigations that have 'right object' and their own grounds will continue to exist, but will now be individualized and sent to the Federal Police, Public Prosecutor's Office or judges of lower instances.

Cases will be redistributed to other instances

With the end of the main investigation, the tendency is that many cases are sent to judges of first instance, since most of the investigated do not have the so-called privileged forum. This represents a significant change in the conduct of the processes, which were previously concentrated in the STF under Moraes’ report. Redistribution should occur gradually, as each derived procedure is analyzed.

Fachin also ordered the secrecy of the entire investigation, including the main proceedings and the more than one hundred derivative proceedings. With this, the public and the press will be able to access the content of the surveys, which increases transparency about what was investigated and how the evidence was obtained. The source did not detail the timeline for the release of the documents.

Impact for investigators and for the judiciary

Fachin’s decision closes a controversial chapter in the recent history of the STF. The investigation of the fake news was criticized by lawyers and lawyers, who questioned the legality of its establishment and the concentration of powers in the hands of a single rapporteur. With the filing, the court signals that investigations of this nature need to have clear limits of scope and duration.

For those investigated, the change may mean the transfer of their cases to local judges, which changes the procedural dynamics. For the Judiciary, the decision reinforces the need for each investigation to have a defined object and not serve as an indefinite repository of facts. The source did not detail whether there will be an appeal against Fachin’s decision.

Next steps and transparency

With the removal of the secrecy, the expectation is that new information about the content of the inquiry will be made public in the coming days. The measure also allows the parties involved to have full access to the autos, which can generate new disputes. The STF has not released an official balance sheet on the total number of investigated or precautionary measures still in force.

Fachin’s decision does not, however, end investigations into attacks on ministers or the dissemination of fake news. It just reorganizes the way these cases will be conducted from now on. The focus becomes the individualization of the conducts and the respect of the procedural deadlines, avoiding that investigations drag on for years without conclusion.

The archiving of the fake news investigation represents a milestone in the performance of STF in times of institutional crisis. The decision seeks to balance the need to investigate serious conduct with respect for fundamental guarantees, such as due process and reasonable length of the process. It remains to follow how the cases derived will be treated in the lower instances and whether there will be new legal controversies.

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