Unlawful evidence cannot underpin investigations or proceedings
Article on unlawful evidence and The Intercept case involving Sérgio Moro and Deltan Dallagnol in Lava Jato, Correio Braziliense, 2019.
Translated from the original.
There is speculation about the legal developments arising from the material obtained by the website The Intercept, involving alleged conversations between interlocutors of Car Wash, notably former judge Sérgio Moro and prosecutor Deltan Dallagnol, as well as other figures. It has already been said, for example, that unlawful evidence may be used to acquit defendants. It is suggested that Operation Car Wash may be affected by serial acquittals or that former judge Moro may be declared biased in former president Lula's case. The National Council of the Public Prosecution Service (CNMP) itself is investigating prosecutors on the basis of this material obtained by criminal means. Art. 157 of the Code of Criminal Procedure prohibits the use of unlawful evidence, in line with the Federal Constitution (art. 5, item LVI).
According to the statements of the interlocutors involved in the intercepted conversations, those messages were not recognized as authentic, and are unlawful evidence, which must be removed from the case files in which they are attached. Therefore, it is not feasible to open an investigation or proceeding on the basis of unlawful evidence, obtained by criminal means. And it would also be inadmissible to declare a magistrate biased on the basis of unlawful material whose authenticity cannot be recognized. To check the authenticity of the conversations, it would be necessary to invade the privacy of the interlocutors, and the support for doing so would be evidence obtained by a criminal organization to the detriment of the rule of law or, at best, by persons interested in annulling judicial proceedings.
This arbitrary method of ascertaining and investigating crimes on the basis of unlawful evidence produced in bad faith would be unthinkable. As can be seen, verifying the alleged bias of the former magistrate would raise the need to verify the authenticity of the material used by the media outlets, material that is the product of an invasion of another’s privacy.
One need only imagine the absurdity of a similar attack on all police officers, judges, and members of the Public Prosecution Service in Brazil, their computers or cell phones and, after the intrusion, the launching of investigations supported by information detected in the materials taken from the authorities. This kind of criminal investigation by para-state organizations, with unlawful intrusions into public officials' equipment, feeding objectives of destabilizing a country, could never be fostered.
Where there are unlawful and intentional intrusions, the evidence arising from those spurious interceptions is invalid and cannot serve as the basis even for opening investigations. It is reported, moreover, that the material in the possession of some media outlets includes supposed conversations between journalists and their sources, as well as dialogues among public authorities involving secret State operations, with potential manipulation by third parties. It is curious that the outlets refuse to submit the material to an authenticity test by an official body, which makes the very origin of the material even more suspect.
The Federal Supreme Court (STF) admits the production of unlawful evidence in self-defense, when such evidence is authentic. Indeed, there is unlawful evidence that constitutes effectively conclusive proof (for example, search and seizure of absolutely reliable and uncontroversial materials that immediately exonerate someone). That is by no means what happens in the case portrayed by the site The Intercept. Here, the material reported is even edited and manipulated, and its authenticity is doubtful. It is not possible to launch an investigation against anyone based on this unlawful and spurious material.
In the case under examination, the material produced did not have its authenticity recognized or attested and therefore does not constitute conclusive proof revealing the innocence of an accused, insofar as it is inadmissible evidence. Thus, legally, the information released by The Intercept is useless, subject to the prospect of holding the intruders and their partners liable.
Fábio Medina Osório, former minister of the Office of the Attorney General of the Union