The latest inquisitorial measures by STF Minister Alexandre de Moraes made a new expression enter the national news: “Fishing Expedition” or, in good Portuguese, “evidence fishing”. This is a controversial practice used at the end of last August, when Moraes authorized the breaking of bank secrecy, the freezing of bank and social media accounts and the issuance of search and seizure warrants against a group of businessmen who support the President Jair Bolsonaro.
“It is a term used by Anglo-Saxon legal science that refers to the idea that investigators will carry out an ‘evidence fishery’, as they say in Portuguese. he has no evidence and does not know what he will find during the investigation, but he is ‘convinced’ that he will achieve something with the venture”, explains lawyer Sean Abib, Master in Criminal Law from PUC-SP.
The practice was criticized by the deputy attorney of the Republic, Lindôra Maria Araújo. “It is intended, in fact, an attempt to open evidence prospection to be developed by specific political actors in an election year, with the correlated media exploitation of your performance , and consequent attempt to ‘fishing expedition’ on a new political front in search of legal protagonism in place of the competent authorities”.
“Supported by the judiciary, the investigator finds a justification for issuing a search warrant and apprehension, breaking some personal secrecy — banking, telephone, etc —, to look for signs that the person is committing a crime”, explains Sean Abib. “Thus, it allows the prosecution agencies — the Public Ministry, the Federal Police, etc — to have unlimited power to find evidence against any citizen”.
Used in the USA against traffickers and terrorists
Reproachable in essence, its emergence and use is the subject of discussions. According to Abib, an example of the historical context that aroused the debate about the practice of the “fishing expedition” was the hardening of the fight against drug trafficking in the United States in the decades of 1970 and 1980, when the crime of money laundering was instituted. “At that time, they sought to repress something very new: both international trafficking and the dissimulation of the values moved by it. It was difficult to create objective criteria to justify a search because the police not infrequently used information from shady sources to proceed with the investigation. investigation”.
Another situation that opened the way for the debate about “evidence fishing” was the attack on the World Trade Center in September 2001. “It was a considerable milestone, there was a change in perspective in the relationship between security and individual rights, as if the State could go over certain regulations to carry out investigations”, recalls Alexsandro Linck, Master in Law, Doctor in Philosophy from PUC-RS and partner at Carpena Advogados.
To understand the justifications and, especially, the extent of the consequences of the practice, it is also necessary to consider the legal system of the country in question. According to lawyer Ezequiel Silveira, a member of the Constitutional and Legislative Studies Group of the Brazilian Institute of Law and Religion (IBDR), the use of the “fishing expedition” is more suited to the common law legal model, adopted by countries with more and which, therefore, give magistrates greater power to interpret them. Even so, the practice is no longer a problem.
“In the United States, this technique was used against Al Capone, for example. Even so, it is a very controversial expedient. Since the world is a world, the prosecution agencies (police and prosecutors) need to deal with the management between investigating versus guaranteeing the rights of those investigated”, explains Silveira.
It happens that, in Brazil, with a Constitution of 250 articles and more than 250 amendments made over only 120 years (against the 11 articles of the American Constitution, which has undergone 34 amendments in more than 34 years), the application of fisheries evidence becomes even more problematic. “When we bring it to the reality of Brazil, the constitutional guarantee prevents the use of this technique. First, for affronting the principles of human dignity, due process of law, and above all the presumption of innocence”, says the lawyer.
“Show me the man, and I will find his crime”
For Linck, the practice of the “fishing expedition” opens the door to serious violations. “It’s one thing for me to take evidence – say, a WhatsApp screenshot, a leaked document, whatever – and authorize an operation exclusively if the content is true, to do what we call ‘mirroring’. It’s another for me to use that ‘ evidence’ as an excuse to search your entire life, which would be an attack on the rule of law. In a case like this, the process would be a mere formality, since the conviction will happen anyway”.
“The discussion between the greater interest of society and individual rights is not new, but it contains a fine line. I think the ‘fishing expedition’ is the kind of thing that can only be used in a non-democratic regime. The biggest damage is always having an innocent person arrested, and not a guilty person released”, reinforces the specialist. The indiscriminate practice of probation fishing, after all, is not unknown to humanity – it is enough to recall the maxim attributed to the head of Josef Stalin’s secret police, Lavrenti Beria: “show me the man, and I will find his crime”.