In September 2019, the Branch of Jehovah’s Witnesses and a number of kingdom halls in São Paulo Brazil were raided by the Police, in search of documentary evidence of criminal activities relating to child sexual abuse. The Jehovah’s Witnesses claim that the raid was unlawful. Below is a translation of the Court of Justice determination. They lost their appeal. The investigation into Jehovah’s Witnesses handling of child abuse at a branch level is ongoing.
VOTE No. 19786
Judging Body: 15th Criminal Law Chamber
Writ of Security No.: 2223842-30.2019.8.26.0000
Applicant: Watchtower Bible and Tract Society, represented by lawyer José Antônio
Respondents: MMª Judge of Law of the Sector of Assistance for Crimes against Children, Elderly, Disabled and Victim of International People Trafficking (SANCTVS) and the 3rd Prosecutor of Criminal Justice, both from the District of São Paulo / SP
Writ of Security – Search and seizure of objects linked to reported sexual crimes – Investigation of the involvement of members of the investigated religious entity – Pleading to suspend the investigation procedure – Non-compliance – Illegality or abuse of power not detected – Security denied.
This is a writ of security, with a preliminary injunction, filed by lawyer José Antônio Cozzi, in favor of the Watchtower Bible and Tract Society, a religious entity, in which the MMª Judge of Law of the Service Sector was appointed as a coercive authority. Crimes against Children, Elderly, Disabled and Victims of International People Trafficking (SANCTVS) and the 3rd Prosecutor of Criminal Justice, both from the São Paulo / SP District, against r. judicial decision rendered on pages 405/406 of case nº 1001060-74.2019.8.26.0050, pending before the Central Criminal Forum of Barra Funda, related to the search and seizure request.
The plaintiff claimed, in summary, that d. The Public Prosecutor’s Office appointed as one of the coercive authorities would have instituted Criminal Investigative Procedure (CIP) in order to investigate alleged crimes of sexual abuse committed by some religious members whose victims would be Jehovah’s Witnesses, crimes that would already be prescribed for the most part, at the time of the facts, so that the investigation would be generic, since it would not specify exactly what was intended.
He argued that there would be no evidence in the case file regarding the commission of any illegality or omission on the part of the enforcing institution, but, on the contrary, the evidence attached to the file by the Public Prosecutor’s Office would indicate that the plaintiff would be concerned with protecting minors in their midst, guiding their leaders in this regard.
He affirmed that news from unreliable sources would have been added to the procedure, news from other countries, extracted from the internet, with the Defense not having the opportunity to learn about the identity of the sources, also observing that documents in a foreign language, translated unofficially by an unknown person would violate the provisions of art. 236 of the Criminal Procedure Code.
He asserted, too, that the Prosecution would have known of the alleged victims through unofficial sources, namely, electronic messages from a cell phone, which would consist only in name and first name of some person’s offense, without mentioning the date of the events.
He stressed that the search and seizure would have been granted by the MM. Judgment “a quo” in the face of the false news that the documents linked to such circumstances would have been destroyed by determination coming from members of the religious institution, which would have supported the news published on the date of 10.09.2019.
He argued that such a measure would be manifestly abusive, since its foundation would lie in internet media news, coming from Australia, without any investigation in Brazil. Even if this were not the case, he defended that the archives of a religious entity would be protected by ecclesiastical secrecy, being a serious violation of the constitutional guarantee of the inviolability of religious freedom and protection of places of worship and their liturgies, provided for in art. 5, item VI, of the Constitution.
He reported that, despite the search and seizure court order having covered only addresses located in the capital, on 09/30/2019, the said warrant would have been carried out at the applicant’s headquarters, in Cesário Lange / SP, at which time several activities were being carried out; on the same day, other police officers reportedly came to the headquarters of the religious institution in question to carry out the same search and seizure warrant, and were prevented from doing so, due to the alleged illegal conduct.
He explained that, on 10/1/2019, he would have postulated the revocation of the decision that would have determined the search and seizure. The prosecutor’s office would even appear before the judge the following day to clarify that the news that would have motivated the search and undue seizure would refer to Australia, as well as that the document mentioned would not even indicate sexual abuse of minors. In addition, he stated that the book “Shepherding”, produced by Jehovah’s Witnesses, chapter 22, paragraph 26, would provide specific guidelines for congregation elders regarding allegations of sexual abuse of minors, in the sense that records should be kept on file, indefinitely.
He added that, until now, the allegedly abusive order would remain in force and, since 9/29/2019, the impetuous religious institution would be subject not only to suffer from new searches and apprehensions, but several religious temples of the institution, located in the city of São Paulo, would be suffering the same improper measure, with break-ins, violation of a legal office, also reporting that accounting and tax documents would have been overturned and even cell phones of the faithful would have been inspected.
He argued that the right to religious freedom, privacy, honor and other constitutional guarantees were being vilified in this procedure, under the pretext of investigating prescribed crimes.
He argued that, during the investigation of crimes, there would never have been any resistance from Jehovah’s Witnesses to collaborate with the authorities, which is why the search and seizure would only serve to violate ecclesiastical secrecy, expose sensitive data from people outside the investigation and violate constitutional guarantees of a religious entity and its faithful; the search and seizure would have been totally fruitless.
He noted that the records of searches and seizures would only indicate that all the seizures would have been carried out in excess of the warrant, which would determine the search and seizure of objects linked to rape of vulnerable persons regarding the victims indicated and qualified in the warrant, however, no seized objects it would relate to the victims referred to in it.
He stated that, in possession of a generic warrant (in contravention of article 243, item I, of the CPP), based on internet news, and on reports of alleged victims without any documentary support, the police would have executed the said order without limits, breaking into cabinets, checking cell phones of uninvestigated people, breaking into the residence and legal office, making threats, executing the court order more than once in the same place, seizing objects unrelated to a warrant, and illegalities would continue to occur, as there would be reports of that policemen would continue returning to religious temples for further diligence.
He added, on pages 581/586, that, on 10/02/2019, two lawyers from the Plaintiff would have appeared in the office of the representative of the Public Prosecutor, aiming to clarify some obscure points on which the precautionary search and seizure request would be based, an opportunity on which d. Prosecutor is said to have asked strange questions relating to the sexual abuse investigation, in addition to having recorded the informal conversation without any prior notice, which would authorize the exclusion of these lawyers’ access to the records, on the grounds that the offenders had no mandate to act outside of the Cesário Lange District, in order to create, arbitrarily, a territorial limitation for the practice of law, in clear violation of the prerogatives of law in Brazil, which would have been granted by the judicial authority. The petitioner also rebelled against this decision, since the MM. First Degree Court would be, once again, denying the realization of the control regarding the investigative power of the Public Ministry, thus allowing the investigation without parameters to continue to occur.
He initially requested the suspension of the criminal investigative procedure under the responsibility of the 3rd Prosecution of Criminal Justice of the Capital, as well as the effects of the judicial decision handed down to pages. 405/406 of feat nº 1001060-74.2019.8.26.0050, pending before the Central Criminal Forum of Barra Funda (SANCTVS), referring to a request for criminal search and seizure carried out in religious temples and at the headquarters of the petitioner religious institution.
In a preliminary injunction, the vindicated measure was rejected (pages 592/597). Then came the information (pages 611/612 and 623/624), as well as the opinion of the learned Attorney General’s Office, in the sense of denying security (pages 626/634).
It’s the report.
It appears from the records that the Watchtower Bible and Tract Society is being investigated for alleged infringement of art. 217-A, “caput”, of the Penal Code, because, on uncertain dates and in different places of this city and the capital city, nine victims would have contacted the Public Ministry of the State of São Paulo to narrate the sexual abuse experienced at the time when they would be attending the Kingdom Halls of Jehovah’s Witnesses.
According to the report, when reporting to members of the congregation about the abuses suffered, the offended ones would have been instructed not to report to the authorities, since the organization’s precepts would require the confession of the offending agent or, at least, two witnesses in person of the crime. Then, PIC nº 94,0003.0007376.2019.4 was established to better clarify the facts.
Faced with the information that there would be determination, on the part of members of the religious entity, now patient, in the sense that all documents related to the facts of the investigation that occurred were destroyed, n. Prosecutor, plaintiff, pleaded to seize assets located in some of the temples in order to collect evidence regarding the reported crime.
Such requirement had been granted, r. “Decisum” against which the plaintiff protests.
Well, the plaintiff at no time has been able to establish entitlement for granting the desired suspension of investigative procedure introduced to the detriment of the religious establishment.
Contrary to what is claimed by the plaintiff, the investigation in question contains very relevant evidence regarding the practice of sexual crimes, to be justified, under the terms of art. 240 of the Criminal Procedure Code, searches and seizures determined by the MM. “A quo” judgment.
In fact, with regard to search and seizure, the renowned jurist Eugênio Pacceli de Oliveira teaches: “It is certainly a measure of an eminently precautionary nature, to guard against evidential material, things, animals and even people, which are not within the spontaneous reach of Justice. The precautionary measure with regard to the question of evidence and the safety of persons is also exceptional in that it implies breaking the inviolability of the accused or third parties, both with regard to the inviolability of the home and with regard to personal inviolability. For this reason, only when justified reasons, as to the urgency and the necessity of the measure, are present, will it be possible to grant the search and seizure, both in the investigation phase and in the course of the criminal action” (Course on Criminal Procedure, 16th Edition , 2012, p. 432).
In addition, the judicial determination was not given only based on articles coming from the internet, as the Defense wants to believe, but in the reports of nine victims and defense witnesses, in the sense that an order was issued for the destruction of documents relating to the internal investigation of sexual crimes.
And, specifically regarding the constitutional protection afforded to religious institutions, this was not vilified, even outlining that, in accordance with the decision placed on pages 590/591, due diligence should not take place during worship hours.
That said, the determination to search and seize assets linked to the sexual offense on screen has been well-founded.
In spite of the claim that the investigation would be generic, the Defense has neglected to prove that the absence of greater particularization has caused effective damage.
According to the records of search and seizure drawn up, there is no evidence that the limit outlined by the judicial decision was exceeded when complying, since the acts were restricted to what could be of interest in the specific case.
In addition, the executors were properly instructed on the purpose of the due diligence, with support in the decision that determined it, incorporating the reasoning and specification made by the singular court.
In the hypothesis, in addition to not showing any concrete damage, the act in no way compromised the determination of the substantial truth / real truth, even because the seizure of assets will only serve to better clarify it.
Bearing in mind that the searches in question motivate the collection of elements of conviction (art. 240, §1, “h” of the criminal procedural law), as well as considering the absence of illegality or abuse of power, there is no reason to suspend the criminal investigative procedure and the effects of the judicial decision regarding the search and criminal seizure carried out in the temples and at the headquarters of the petitioner religious institution.
Given the above, security is denied.
Cláudio Marques rapporteur