André Elali
Lawyer, PhD in Law and Associate Professor at UFRN

Pierre Franklin
Lawyer, Graduated from UFRN and Postgraduate in Economic Criminal Law from PUC-MG

There is no denying the importance of the investigation by the Brazilian authorities regarding conduct possibly contrary to the public interest and legality. Far from it. However, it has been observed, with repeated behaviors in the public sector, the lack of adequacy of certain investigative procedures.

The subjection of the public agent to the law is nothing new and guarantees the limits of the State's own action towards the individual. In this context, the investigative agent (police officer, delegate or prosecutor) must seek to build evidentiary elements1, of the materiality and authorship of a possible punishable fact, in order to justify the just cause for the filing of an eventual criminal action. When concrete elements of eventual justification of the state action are absent, the agent must apply the legality without attachment to its ideologies. Without just cause, there is no legal motivation for any activity within the scope of criminal proceedings.

In times of high legal uncertainty and the true banalization of fundamental rights, the evidence becomes the subject of debates to understand, in a teleological delimitation, which limits cannot be transgressed, using legislation and precedents as a reference . It is in this preliminary phase, in which the process does not exist, that it becomes essential to distinguish between the concepts of acts of investigation and acts of proof2.

By the way, pertinent is de Gouveira's lesson that legal certainty is associated with what is called the protection of trust, deriving from the very structure of the Rule of Law, which is linked to the “concern with the knowledge of the applicable Law, imposing that the respective sources be public and prospective during their validity.”3 The author emphasizes that the rule of law requires that “the current normative framework does not change in such a way as to frustrate the legitimate expectations generated in citizens about its continuity, with the prohibition of an intolerable retroactivity of laws, as well as the need for this change in constitutionally protected expectations to be duly substantiated.” As the Portuguese author points out, “the protection of trust intends to establish a climate of stability between the public power and the citizens who are the recipients of the respective acts.”4

What cannot be admitted, therefore, within the scope of the theme, is the practice of searching for new elements to justify the investigation that has not been found previously. The strategy is changed and a different objective is pursued than the one that motivated the initiation of the investigation. The legal system is based not only on legal certainty, but is also rooted in democracy.5

With this, the practice internationally recognized as fishing expedition appears. As Alexandre Morais da Rosa records, "Fishing Expedition" or "evidence fishing is the speculative search, in the physical or digital environment, without 'probable cause', defined target, tangible purpose or beyond the authorized limits (deviation of purpose), of elements capable of attributing criminal responsibility to someone."6

In this sense, the absence of evidence of any criminal practice before the adoption of constrictive or invasive measures aimed at "fishing" for evidence of the occurrence of criminal acts can clearly bring out the exploratory and abusive character adopted by the authority, when, without the existence of minimum ballast that indicates its need, as well as without a delimited object, person or defined offense to be investigated, practices "evidence fishing".

The “probative fishing” takes place in cases where deviation of purpose is identified and the lack of any evidence that may support a possible future criminal investigation The agent responsible for the diligence must be careful to stick to the scope - linked to just cause - for the which, exceptionally, the fundamental right to privacy was violated, with the exception of the possibility of fortuitous encounter of evidence.

The fortuitous gathering of evidence, which differs from the aforementioned procedure, is permitted by jurisprudence7, as evidence found by chance by criminal prosecution agents relating to hitherto unknown criminal offenses, in the course of complying with investigation measures authorized for investigation, is considered valid. of other crimes, provided that there is no deviation from the purpose in the execution of the steps.

The Superior Court of Justice has different understandings in different situations, as it only admits the interpretation of the so-called "probative fishing" when the agent is totally devoid of any accusatory evidence, not recognizing the irregularity of discovering a new offense and people involved, already in the course of of the investigative procedure in the previously observed crime, resulting from an investigative measure (break of secrecy or telematic interception, for example), in an accidental manner.

There are, therefore, two positions that the STJ has currently adopted. In HC 598.051/SP (Report Minister Rogerio Schietti), the Sixth Panel proposed a new and meticulous approach on the control of the resident's alleged consent for entry into their home by state agents. There are basic premises for such an act: “a) In the event of suspected crime in flagrante delicto, it is required, in terms of the evidentiary standard for entering the suspect’s home without a court order, the existence of well-founded reasons8 (just cause), verified objective manner and duly justified, in order to indicate that a situation of flagrante delicto occurs inside the house. [...]” In RHC 150354 / PR, under the rapporteurship of Minister Reynaldo Soares da Fonseca, there is a fortuitous finding of evidence9, that is, a different situation in which there is no illegality of the evidence provided that the procedure has been regularly authorized and executed within the limits established by the judicial authority, with no abuse of authority or misuse of purpose.

That said, the STJ has correctly established the ban on the fishing expedition as a result of the guarantee against self-incrimination (privilege against self-incrimination. The indiscriminate search for evidence and without an adequate method is contrary to the rule of law model, violating It is the very attribution of the public agent, who must not confuse the legal technique with his individual morality and his beliefs about the system. In fact, the duty of motivation of the administrative act is established in the Brazilian legal system as a basic premise of conformity of the performance of the Public Administration. As an instrument that protects the administration from arbitrariness by the State, it works as a parameter for the implementation of legality control. Also from the perspective of Procedural Law, the motivation of administrative acts is presented as essential in achieving the necessary balance of legal relationships. The absence of motivation – and adequate motivation – constitutes a real barrier to the exercise of the right to adversarial proceedings and full defense. Its occurrence, through acts devoid of legal basis and/or evidence, violates the structures of the rule of law.

One cannot accept questionable practices of presumptions and generalizations of anti-legal conduct without support in evidence, which distance themselves from the rule of law model and which are closer to the concept of “state reasons”10. Cases of lack of motivation violate the legal structures of the Administration and approach argumentative excesses based on personal ideologies of politics and justice, replicating the model of “tyranny of values”, even with the “best of intentions”11 .

 ¹ ALMEIDA, Joaquim Canuto Mendes de. A Contrariedade na Instrução Criminal. São Paulo: [s.n.], 1937, p. 12.
² LOPES JR, Aury. Direito processual penal.  16. ed. São Paulo: Saraiva Educação, 2019, p. 330.
³ GOUVEIA, Jorge Bacelar. Direito da Segurança – Cidadania, Soberania e Cosmopolitismo. Lisboa: 2018, p. 95.
⁴ GOUVEIA, Jorge Bacelar. Direito da Segurança – Cidadania, Soberania e Cosmopolitismo. Lisboa: 2018, p. 95.
⁵ LANG, Joachim; TIPKE, Klaus. Direito Tributário. Tradução da 18. ed. por Luiz Doria Furquim. Porto Alegre: Sergio Antonio Fabris, 2008, p. 126.
⁶ ROSA, Alexandre Morais da. Guia do Processo Penal Estratégico: de acordo com a Teoria dos Jogos. Santa Catarina: Emais, 2021, p. 389-390.
⁷ STJ - AgRg nos EDcl no RHC 150.354/PR, Rel. Ministro REYNALDO SOARES DA FONSECA, QUINTA TURMA, julgado em 15/03/2022, DJe 18/03/2022.
⁸ “Admitir a entrada na residência especificamente para efetuar uma prisão não significa conceder um salvo-conduto para que todo o seu interior seja vasculhado indistintamente, em verdadeira pescaria probatória (fishing expedition), sob pena de nulidade das provas colhidas por desvio de finalidade.” HC 663.055/MT, Rel. Ministro ROGERIO SCHIETTI CRUZ, SEXTA TURMA, julgado em 22/03/2022, DJe 31/03/2022
⁹ AGRAVO REGIMENTAL NOS EMBARGOS DE DECLARAÇÃO NO RECURSO ORDINÁRIO EM HABEAS CORPUS. FRAUDE A LICITAÇÕES. ENCONTRO FORTUITO DE PROVAS. POSSIBILIDADE. PROCEDIMENTO REGULARMENTE INSTAURADO NO CURSO DE OUTRA INVESTIGAÇÃO CRIMINAL. AGRAVO REGIMENTAL NÃO PROVIDO. 1. Neste caso, tem-se o encontro fortuito de provas, também chamado pela doutrina de serendipidade, o que é reconhecido pela doutrina e pela jurisprudência dos Tribunais Superiores. Não há que se falar em ilicitude das provas desde que o procedimento tenha sido regularmente autorizado e executado dentro dos limites estabelecidos pela autoridade judiciária, desde que não haja desvio de finalidade na execução das diligências. 2. Embora os crimes imputados sejam puníveis com detenção, o fato de terem sido descobertos de maneira fortuita por meio de procedimento investigativo regularmente instaurado nos termos e limites da Lei n. 9.296/1996 não macula as provas obtidas. 3. Não há que se falar em fishing expedition neste caso, pois, não se constata que a investigação tenha assumido caráter exploratório ou especulativo. Trata-se apenas da obtenção de elementos indiciários de modo fortuito em procedimentos de investigação regularmente instaurados. 4. Agravo regimental não provido. (AgRg nos EDcl no RHC 150.354/PR, Rel. Ministro REYNALDO SOARES DA FONSECA, QUINTA TURMA, julgado em 15/03/2022, DJe 18/03/2022)