Brazão case rescues Congress x STF clash over parliamentary immunity

The case of preventive detention of federal deputy Chiquinho Brazão (União-RJ) revived a clash between the Federal Supreme Court (STF) and Congress related to parliamentary immunity. In a session of the Chamber’s Constitution and Justice Committee (CCJ), on Tuesday (26), to discuss the validity of the arrest, the topic came up once again.

For the majority of congressmen, both from the government and the opposition, the congressman’s preventive arrest was fair – Chico Alencar (RJ), from PSOL, even endorsed statements in this regard by Ricardo Salles (SP), from PL, during the session. Some, however, raised doubts about a possible affront by the Supreme Court to parliamentary immunity.

According to the CNNafter the CCJ session, the president of the Chamber, Arthur Lira (PP-AL), would have even spoken with the Minister of Justice, Ricardo Lewandowski, about Brazão’s case and would have indicated his concern about the risk to parliamentary prerogatives.

Brazão’s preventive detention was ordered based on the argument that he obstructed the investigations. One of the questions raised is whether STF minister Alexandre de Moraes could have ordered this type of arrest, since the Constitution, in its article 53, determines that parliamentarians cannot be arrested except in the act of committing a non-bailable crime. In this case, after the arrest in the act, the records must be forwarded within 24 hours to Congress, which decides whether or not to maintain the arrest.

Jurists consulted by People’s Gazette note that, in a more sober reading of article 323 of the Criminal Procedure Code (CPP), only crimes provided for by law, such as racism, torture, drug trafficking, terrorism and participation in armed groups, would be non-bailable; and, to arrest a parliamentarian, it would be necessary to catch one of these crimes. Moraes, however, is supported by controversial jurisprudence inaugurated by the Supreme Court with the arrest of former senator Delcídio do Amaral in 2015, which broadened the understanding of what constituted a non-bailable crime.

“The Supreme Court, since 2015, decided to make its own interpretation of this rule [artigo 323 do CPP]. First, to say that non-bailable crimes would also be all those crimes for which, in the specific case, it is understood that it is reasonable to order preventive detention. This is not, technically speaking, a non-bailable crime concept; This is a circumstance that may lead to bail not being granted, because it is preventive. In any case, since the case of Delcídio do Amaral, the Supreme Court expanded its interpretation to say that this is also a non-bailable crime. And then, any crime, then, can be non-bailable, if it is understood that preventive detention is appropriate”, explains Rodrigo Chemim, professor of Criminal Procedure at Positivo University and doctor in State Law

From 2015 to today, this is the third time that the Supreme Court has made this interpretation. The same understanding was applied in the case of former federal deputy Daniel Silveira, in 2021. “You can say that it is consistent with the precedents they created. Now, technically, this is highly questionable”, says Chemim.

Parliamentary immunity is in decline in Brazil

Pedro Moreira, PhD in Philosophy of Law from the Universidad Autónoma de Madrid, also sees the STF’s understanding as technically mistaken, but highlights, like Chemim, that Moraes only followed the Court’s own precedent.

“There would be no place for precautionary arrest of deputies and senators. But the Federal Supreme Court, at least since the arrest of the then senator Delcídio do Amaral, in the context of Lava-Jato, has relativized this rule. At the time, minister Teori Zavascki created a type of a hybrid between arrest in the act and preventive detention, which caused controversy among jurists. In my opinion, what happened, in that case and also in this one, is simply the disregard of the formal immunity that protects congressmen”, he says.

Parliamentary immunity is a mechanism provided for in several democracies as a way of protecting the independent exercise of the legislative mandate. It serves to ensure that parliamentarians can carry out their functions without fear of political or judicial persecution for their opinions and votes.

“We can discuss whether this immunity is good or not, but it exists and is expressly provided for in the Constitution. The power to relativize the constitutional text in the name of what is today considered a ‘good’ can be used, in other circumstances, for an objective different, that is not exactly seen as a ‘good’. So, we need to be careful with that. We need to know how to live with the limits that the Constitution imposes on our impulses”, adds Moreira.

For him, “parliamentary immunity is in disrepute and has been widely relativized by the Judiciary.” “This applies to formal immunity, which has to do with imprisonment, and also to material immunity, which has to do with the parliamentarian’s freedom of expression. This, in my opinion, is even more worrying. I believe that we cannot have more illusions that abuse of power is found only in the use of political power. Abuse of power is also found in the justice system. And this requires us to reinforce the limits that the Law imposes on all powers, not just elected powers “, he observes.

Rafael Domingues, doctor in State Law from USP, does not see the STF’s mistakes in this case, but only in that of deputy Daniel Silveira, who should be supported by article 53 of the Constitution, according to which “deputies and senators are inviolable, civilly and criminally , for any of your opinions, words and votes”. In this case, according to him, “it can be said that parliamentary immunity is really being violated.”

The vote on the validity of Brazão’s preventive detention ended up being postponed for two sessions at the CCJ due to a joint request for review. Arrested on March 24, the deputy is suspected of being one of those behind the murders of former councilor Marielle Franco and driver Anderson Gomes. The Chamber needs to validate arrests for non-bailable crimes committed by deputies.

Brazão’s defense lawyer, Cleber Lopes de Oliveira, said at the CCJ session that his client’s arrest is contrary to the law. “The facts predate the parliamentarian’s mandate and, therefore, there is a void regarding the STF’s competence”, he stated, under criticism from several parliamentarians.

Faced with the controversy, deputies Gilson Marques (Novo-SC), Fausto Pinato (PP-SP) and Roberto Duarte (Republicanos-AC) asked for more time to analyze the defense thesis.