PARÂMETROS PARA A DIVULGAÇÃO DE INVESTIGAÇÕES SIGILOSAS SOBRE CORRUPÇÃO EM TEMPOS DE CRISE POLÍTICA: TRANSPARÊNCIA OU EROSÃO DEMOCRÁTICA? transparency or democratic erosion?

transparency or democratic erosion?

Abstract

This article proposes that normative and procedural standards should be set forth in order for the Justice system to disclose covert investigations on corruption. It discusses the tension between transparency, integrity and social control vs. privacy and the due process of law. It concludes that the publicization of the illicit activities has a twofold association with the processes of democratic erosion: it is essential for public choices, responsiveness and the reduction of criminal selectivity, but it also presents risks, such as the criminalization of politics, violation of rights and the alteration of the fair political game. We analyze the existence of regulatory omissions in the Brazilian legal system in relation to the disclosure of covert investigations of corruption, which is a doorway to subjectivisms. Finally, we suggest setting some parameters for the regulation of this subject, to be applied by the Judicial system, according to three criteria: a) the procedural stage of the motion and the extent of judicial cognition about the fact being disclosed (identifying a just cause); b) existence of mechanisms for internal or external control of the discretionary authority to disclose information (prior review and collegial decision-making); c) guarantee of non-selectivity in the content and timing of the disclosure (integrality and equality).