It is legitimate and understandable that the people are fed up, after all, it is not a few news of the lack of honesty from our elected ones. It is incomprehensible, however, that the answer to this popular voice is simplistic enough to bring the country and the jurisprudence to the same level as before the Citizen Constitution of systematized disregard for rights.

The great point is that this choir has been thickened by law- makers, who, without flushing, admit that ends justify the means and thus contribute to the development of the most dangerous of dictatorships, that of the pen. A populist authoritarianism, dressed in lambskin and made possible by the existence of open criminal situations.

In the context of combating corruption, the criminal situation that attracts the most attention is what has been called the “obstruction of justice”, a crime specific to investigations involving criminal organizations (Section 2, paragraph 1, Law 12.850/2013). And here we may see two objectionable openings: the first provided by the text of the law, which is too generic; the second by the pen.

Indeed, in the newspapers we may see that the recent major anticorruption operations are supported by the directives of Law 12.850/2013. Everything became synonymous with criminal organization. And worse, defensive performance in this type of investigation has been viewed and treated in the wrong way.

It is imperative that the constitutional right to silence has as an unassailable consecrate, in the legal system of the country, the right of the investigated party to give the version that they want to the facts that voluntarily resolve to open to any authority in charge of criminal prosecution. It is also a pretext that interrogation is not a means of proof, but of defense. Moreover, there is no legislation that prevents investigators from conversing and — despite any moralism with which they wish to qualify — agreeing on versions. In all, it is technically feasible for the accused ones to lie and to combine what they say to ensure greater defense success.

But from the moment that interrogation was mistakenly treated as a means of proof, everything changed. What was seen only as immoral earned status as typical, unlawful and guilty. This change was sudden and gained in the generality of the type “obstruction of justice”, which until today nobody knows what exactly it means.

For recent cases, the only source of proof is the awarded delation, whatever attitude hinders the ways of this institute has been treated with rigor, which, so excessively, leaves aside altogether any notion the concept of an interrogation and, more, the unfolding of the constitutional right to silence.

Worse, a dichotomous view of the process gains strength: either the accused collaborates (reveals) or their omission is seen as an obstacle. By the way, what is not the defense if not obstacle to investigators and paladins who dream of not having rein? This was one of the questions provoked by a case recently tried by the Federal Supreme Court. The Habeas Corpus 141.478/RJ, which questions the preventive custody to protect the criminal instruction. The fact? A meeting, in the presence of lawyers, which dealt with the possible consequences of a search and seizure at the address of one of the parties involved.

It turns out that two of the participants in this conversation resolved, after said meeting, to collaborate with the Justice. But to make delation persevere, everything would be done. Thus, according to the logic of the prison decree, whoever intended the interrogation to bring opposition to the accusations to come, and not a demarcation, evidently intended to embarrass investigations.

This is a conclusion of very serious consequences for the right of defense and, therefore, a concern of the Defense Law Institute (IDDD). So much that the institute entered and was admitted like amicus curiae in Habeas Corpus in appreciation. The order was partially granted by the eminent Minister Gilmar Mendes who, although he preferred to wait for a collegial definition as to the scope of the type, issued a clear warning, consistent with the reality of the criminal process: “The judiciary must take, with responsibility, role of control body for the public prosecutor’s requests ”. This will only happen, Minister, when the magistrates return to impartiality and strip themselves of the armor they wore when they set out for the front.