The Precedent That Never Was: Limits of Topic 990 and the Illegitimate Expansion Through Complaint 61,944

Abstract

The article analyzes the decision rendered by the First Panel of the brazilian Supreme Court in Constitutional Claim (Reclamação Constitucional – “RCL”) No. 61,944, which quashed the judgment of the Sixth Panel of the Brazilian Superior Court of Justice and validated the request for access to Financial Intelligence Reports (Relatórios de Inteligência Financeira – “RIFs”) of the Council for the Control of Financial Activities (Conselho de Controle de Atividades Financeiras – “COAF”) by authorities in charge of criminal prosecution without judicial authorization. In the analysis, it was concluded  that the decision purports to extract from Precedent of General Application No. 990/STF what was not decided therein, authorizing a practice — the request for and obtaining of access to RIFs without judicial authorization — that was not the object of the established thesis and has no legal basis. If the matter discussed was not included in the hypothesis addressed by the Supreme Court in Precedent 990, the RCL would not be admissible and its allowance unduly expanded what the Full Court decided. Furthermore, in this expansion, the Supreme Court adopted mistaken premises regarding an alleged detriment to investigative agility, overriding recommendations, without binding nature, of the FATF over domestic legislation, despite being reconcilable.

Keywords: Precedent of General Application 990. Financial Intelligence Reports. Access to confidential data. “Anti-Crime Package” (“Pacote Anticrime”).