Justice Flávio Dino of Brazil's Supreme Federal Court (STF) on Sunday defended the court's single-justice rulings and questioned, without naming anyone, whether a judge should promise to end an inquiry. His Instagram post came two days after the court's president, Edson Fachin, publicly backed closing the so-called fake news inquiry, which Alexandre de Moraes has handled as rapporteur, the justice in charge of the case, since 2019. According to the magazine Veja, the passage was read as a jab at Fachin.
Dino said he favors concluding investigations, but posed a rhetorical question about who may promise to shut them down:
"Can a judge, whoever he is, 'promise' the end of an inquiry, as if he were a candidate or to receive applause? I am personally in favor of concluding the inquiries, since they were made to end anyway, through criminal charges or the appropriate dismissals. In any case, we have an interesting doctrinal debate here: before the statute of limitations runs out, should an inquiry be shelved because it has taken long? And who decides what 'taking long' means? Personal opinions? Or legal and procedural criteria?"
Seven years under seal
The fake news inquiry (Inquiry 4.781) was opened on March 14, 2019 by then court president Dias Toffoli, who handpicked Moraes as rapporteur. According to Poder360, the case is unusual: criminal investigations normally belong to police and prosecutors, rapporteurs are usually assigned by electronic lottery, and the inquiry remains open, under seal, with no deadline to close. This week Moraes asked that his colleague André Mendonça be investigated within the inquiry, and Fachin removed the request from its scope, according to G1. The court's most senior justice, Gilmar Mendes, defended keeping the case open in April. "It was an important moment to open the inquiry and keep it until the elections," he said, in remarks cited by Poder360.
Single-justice rulings and criminal jurisdiction
Dino also rejected the criticism that "monocratic decisions are an evil in the STF". Such rulings, issued by one justice instead of the full bench, are essential in a system of binding precedents, he argued. "If every issue with settled case law has to go to the collegiate panels, the number of rulings will collapse and delays will grow. That would be good for criminals, serial debtors and the like," he wrote.
On proposals to strip the STF of its criminal jurisdiction, he urged caution. "If you take it from there, you have to put it somewhere. Today there are 23,000 cases in the STF, while other courts have hundreds of thousands," he wrote. Changing the court's constitutional mandate, he said, requires "coherent and planned reforms".
The post came amid an open clash between Moraes and Mendonça. On Tuesday, Mendonça lifted the secrecy on Federal Police reports containing messages between Moraes and Daniel Vorcaro, the former controller of Banco Master. Dino criticized the tone of the whole debate. "Real and serious problems are being mixed with electoral and economic interests, foreign objectives and even personal hatreds," he wrote, citing a phrase attributed to Aeschylus: "In war, the first casualty is truth." According to G1, Mendonça has sent the messages case to the full bench, where the next steps are up to Fachin. The Federal Police reports state themselves that they are not probative and cannot be used as court evidence.