Post by account_disabled on Mar 10, 2024 4:33:45 GMT -6
A very recent and important decision was handed down by the Superior Court of Justice, involving the legitimacy of the Public Prosecutor's Office to request the USA to break the banking secrecy of individuals and legal entities with accounts abroad.
The president of the STJ, Minister Ari Pargendler, contrary to the understanding of the Court of Justice of the State of São Paulo, which did not approve it, and going back on his own understanding, judged it to be lawful for the Public Prosecutor's Office to request access to bank data in financial institutions located in North America.
The legality of the request would be based on the Mutual Legal Assistance Treaty between Brazil and the United States.
The request was requested as part of a civil inquiry established Austria Phone Numbers List to investigate reports of irregularities possibly committed by members of the Universal Church of the Kingdom of God. In addition to the request to break the banking secrecy of individuals and legal entities, with the provision of documents from those investigated from onwards, there is also a request to freeze assets.
The mandamus was filed against the act of prosecutor Saad Mazlum, and the order was granted by the Monocratic Court, which rendered the MP's request null and void, on the grounds that the breach of bank secrecy would depend, under national legislation, on prior judicial authorization.
The São Paulo court confirmed the previously agreed understanding, highlighting the need to comply with the formalities of national law in order to obtain banking information, even through international cooperation.
Firstly, Minister Ari Pargendler had agreed with the interpretation of the magistrates of the São Paulo Judiciary, accepting the petitioner's allegation that Decree ,/ would not fulfill all the formalities for its validity, since it would not have been ratified, in addition to being characterized by excess in the act performed, since the requested State would be asked to carry out certain acts, even if investigative, within the limits of the powers of the requesting body. And in this scenario, judicial authorization would be essential in Brazil.
In the decision, there is mention of the fact that the enforcement authority itself recognized that the breach of banking secrecy would depend on judicial authorization, although not absolutely. Therefore, there would be no way to project the required bodies to carry out acts for which, according to the Federal Constitution of the country, the necessary attribution and competence are not available.
The Minister adds that “it doesn't matter what formal name was given to the instrument used by the Public Prosecutor's Office to obtain the breach of banking secrecy. The fact is that for the 'transfer' of such an investigative act and due to the projection of the internal attribution of the ministerial body, prior judicial authorization must be obtained”.
The decision assessed that no matter how relevant the facts under investigation were, the measures could not overlook the procedures and legal restrictions in force in partner countries, especially when they could result in the obtaining of personal and confidential information related to private life and intimacy, assets constitutionally protected in article , item X, which includes the guarantee of banking or business secrecy of the legally constituted legal entity.
The Minister continued by informing that Complementary Law / itself in its rd article, conditions the provision of information by the Central Bank of Brazil, CVM and financial institutions, to determination by the Judiciary, also preserving its confidential nature. through restricted access to the parties, who cannot use them for purposes outside the dispute. In this way, documentation of a banking nature, even if obtained through international cooperation, would be absolutely useless as proof, if the formalities of national law for obtaining it are not observed.
The president of the STJ, Minister Ari Pargendler, contrary to the understanding of the Court of Justice of the State of São Paulo, which did not approve it, and going back on his own understanding, judged it to be lawful for the Public Prosecutor's Office to request access to bank data in financial institutions located in North America.
The legality of the request would be based on the Mutual Legal Assistance Treaty between Brazil and the United States.
The request was requested as part of a civil inquiry established Austria Phone Numbers List to investigate reports of irregularities possibly committed by members of the Universal Church of the Kingdom of God. In addition to the request to break the banking secrecy of individuals and legal entities, with the provision of documents from those investigated from onwards, there is also a request to freeze assets.
The mandamus was filed against the act of prosecutor Saad Mazlum, and the order was granted by the Monocratic Court, which rendered the MP's request null and void, on the grounds that the breach of bank secrecy would depend, under national legislation, on prior judicial authorization.
The São Paulo court confirmed the previously agreed understanding, highlighting the need to comply with the formalities of national law in order to obtain banking information, even through international cooperation.
Firstly, Minister Ari Pargendler had agreed with the interpretation of the magistrates of the São Paulo Judiciary, accepting the petitioner's allegation that Decree ,/ would not fulfill all the formalities for its validity, since it would not have been ratified, in addition to being characterized by excess in the act performed, since the requested State would be asked to carry out certain acts, even if investigative, within the limits of the powers of the requesting body. And in this scenario, judicial authorization would be essential in Brazil.
In the decision, there is mention of the fact that the enforcement authority itself recognized that the breach of banking secrecy would depend on judicial authorization, although not absolutely. Therefore, there would be no way to project the required bodies to carry out acts for which, according to the Federal Constitution of the country, the necessary attribution and competence are not available.
The Minister adds that “it doesn't matter what formal name was given to the instrument used by the Public Prosecutor's Office to obtain the breach of banking secrecy. The fact is that for the 'transfer' of such an investigative act and due to the projection of the internal attribution of the ministerial body, prior judicial authorization must be obtained”.
The decision assessed that no matter how relevant the facts under investigation were, the measures could not overlook the procedures and legal restrictions in force in partner countries, especially when they could result in the obtaining of personal and confidential information related to private life and intimacy, assets constitutionally protected in article , item X, which includes the guarantee of banking or business secrecy of the legally constituted legal entity.
The Minister continued by informing that Complementary Law / itself in its rd article, conditions the provision of information by the Central Bank of Brazil, CVM and financial institutions, to determination by the Judiciary, also preserving its confidential nature. through restricted access to the parties, who cannot use them for purposes outside the dispute. In this way, documentation of a banking nature, even if obtained through international cooperation, would be absolutely useless as proof, if the formalities of national law for obtaining it are not observed.