The Brazilian Supreme Court and the Incoherence Interpretative

the Case of Breach of Bank Secrecy

Abstract

The present article aims at critically analyzing the interpretation given by the Brazilian Supreme Court to article 5, item XII of the Brazilian Constitution, which deals with the right to bank secrecy and the exceptional permission that this confidentiality be breached by judicial decision. From the point of view of Tax Law, in 2016, the Brazilian Supreme Court, in the judgment of the Direct Action of Unconstitutionality n. 2.386, eased the referred right to bank secrecy and understood as constitutional the Federal Revenue access to these data without judicial decision for tax inspection purposes. From the point of view of criminal law, however, in a recent monocratic decision of Minister Dias Toffoli in Extraordinary Appeal n. 1.055.941, the suspension of all criminal proceedings pending in Brazil in which bank data was shared without judicial authorization was determined. The object of this article, therefore, is the interpretative divergence of the Federal Supreme Court regarding the same provision and the analysis of its consequences.