Expansion of the privileged forum increases pressure on the Chamber and Bolsonaro

The majority reached in the plenary session of the Federal Supreme Court (STF) this Friday (12) in favor of expanding the privileged forum, for politicians outside the exercise of their mandates, increases the pressure on the Chamber of Deputies to address the issue. In another aspect, the decision will provide another argument for the Court to refute challenges from Jair Bolsonaro’s (PL) defense regarding the STF’s competence to judge the former president.

In the Chamber, parliamentarians aligned with the former president want to put on the agenda the so-called Proposed Amendment to the Constitution (PEC) to end the privileged forum, an old demand from the right that was approved in committees and sent almost six years ago by the Senate, leaving only go to plenary. The president of the Chamber, Arthur Lira (PP-AL), signaled that he wants the vote later this year, but it generates suspicion that he does not want to confront the STF.

The movement to reopen the discussion on PEC 333/2017, proposed by then senator Álvaro Dias (Podemos-PR), is a response to the consolidation of a majority in the STF around the vote presented by minister Gilmar Mendes in favor of expanding the forum privileged.

The function prerogative forum system, popularly known as privileged forum, guarantees that several authorities are judged directly by the STF, instead of going through lower judicial instances. Deputies, senators, ministers, president of the Republic and vice president, as well as ambassadors, members of the higher courts and members of the Federal Audit Court (TCU), among others, are part of this group of 57 thousand citizens, a number unparalleled in the world .

The current understanding, established in 2018 by the STF, says that the special forum prerogative only applies to crimes committed in the exercise of office and related to the functions performed. The loss or change of mandate implies sending the cases against this authority to lower jurisdictions, if they are not in the final stage of procedural investigation.

Now the ministers have formed a majority to maintain cases against authorities who lost their mandate or changed positions in the STF, invoking the principle of legal certainty to justify maintaining a wide spectrum of authorities under the jurisdiction of the last instance of the Judiciary.

“The prerogative of forum for judging crimes committed in office and due to functions remains even after removal from office, even if the investigation or criminal action is initiated after its exercise has ceased”, established Gilmar Mendes in his vote, being accompanied, until now, by ministers Cristiano Zanin, Flávio Dino, Alexandre de Moraes, Luís Roberto Barroso and Dias Toffoli.

Barroso’s vote, which served to close the majority of six among the 11 ministers in the Court this Friday, agrees with Mendes when he states that maintaining the forum even after losing his mandate will contribute to “putting an end to shifts in jurisdiction that generate delays, inefficiencies and prescription”.

The trial was interrupted again this Friday, following a request from Minister André Mendonça for more time to analyze the case, and must be released for resumption within a maximum of 90 days, according to the STF’s internal regulations.

The privileged forum is currently being discussed by the STF based on two specific cases. The first case comes from the request of Senator Zequinha Marinho (Podemos-PA) for an analysis of the complaint against him in the Federal Court. The other is a demand from former senator Rose de Freitas (MDB-ES), who tries to close the complaint against her in the Court itself.

The PEC on the end of the privileged forum, currently being processed in Congress, goes in the opposite direction to the STF’s new understanding, seeking to restrict the prerogative to the heads of Powers. In the last consultation carried out by Arthur Lira with the leaders of the Chamber, only PT and MDB took a position against the need to analyze this topic.

Decision on privileged forum could affect proceedings against Bolsonaro

Although the STF ministers have used other justifications to keep the investigations against Bolsonaro in the Supreme Court, the change in the understanding of the forum should reinforce the ministers’ arguments to keep the investigations against the former president under their analysis.

Since ending his presidential term, Bolsonaro has been the target of a series of investigations conducted by the STF. They include investigations such as the embezzlement of gifts intended for the Executive, suspected creation of digital militias and alleged participation in coup d’état plans.

The former president’s defense disputes these accusations, mainly arguing that, because he no longer holds any political office, the Supreme Court does not have the jurisdiction to deal directly with the cases. Their lawyers argue that the cases should be transferred to the first judicial instance, where the so-called “natural judge” would be.

However, Minister Alexandre de Moraes, rapporteur of the investigations, argues that there are connections between the investigations and other processes underway at the STF, which would justify the Court’s competence to judge cases involving Bolsonaro.

The topic gained momentum with PF actions against opposition deputies

The STF’s turnaround in relation to the privileged forum comes amid a recent series of search and seizure operations carried out by the Federal Police (PF) in the Chamber’s offices, against opposition deputies, such as Carlos Jordy (PL-RJ) and Alexandre Ramagem (PL-RJ), which are close to Bolsonaro.

These actions were triggered by inquiries conducted by the Supreme Court and were interpreted by right-wing leaders as political persecution. As a result, many parliamentarians who previously felt protected by the special forum changed their minds.

This discussion also gained momentum after deputy Chiquinho Brazão (União Brasil-RJ) was arrested and his case was analyzed by the STF due to the privileged forum. Suspected of being the mastermind behind the death of Rio councilor Marielle Franco (Psol), in 2018, he was a councilor at the time.

“The plenary’s authorization for the continuation of his arrest, with only 20 votes above the minimum, clearly shows that the Chamber is uncomfortable with certain interferences from the Judiciary”, commented Arthur Lira this Thursday (11), during his participation in the agricultural exhibition in Londrina (PR).

Regarding the PEC at the end of the forum, he limited himself to saying that the majority of deputies agree that a legislative change must occur, but that there is no consensus on its form.

One of the most ardent defenders of the end of the privileged forum in Congress, senator Eduardo Girão (Novo-CE), expresses concern that the STF is transforming this “benefit” into a shield to “guarantee impunity”.

He denounces this possible distortion as yet another failure in the legal system, including the trial of defendants without jurisdiction in the case of the January 8 acts. Therefore, the parliamentarian demands that the Chamber consider the PEC approved unanimously in the Senate, as a measure to improve the dynamics of Justice and strengthen its confidence.

Jurists criticize STF for expanding the forum and point out casuistry

Constitutional law professor Vera Chemim understands that the decision to expand the privileged forum after the end of the authorities’ mandate represents a “constitutional setback”, in addition to “provoking political consequences” in Congress.

“From a legal point of view, the expansion of the privileged forum will promote a significant increase in prescription, since the Court will be overcrowded, with the continuation or entry of actions, in addition to generating delays in the judgment of constitutionality control actions”, he said. .

In the opinion of lawyer and professor Ricardo Peake, the change in jurisprudence proposed by Gilmar and Mendes and already endorsed by the majority of the STF causes, contrary to what Minister Gilmar Mendes says, even more legal uncertainty for the country.

“The new understanding signals casuistry and concern with immediate political aspects and not with the best constitutional interpretation. The privileged forum in Brazil is already very hypertrophied and should be reduced, not expanded”, he highlighted.

Former deputy and former attorney Deltan Dallagnol (Novo-PR) also sees casuistry in the interpretation, as it will grant the STF the authority to investigate, prosecute and judge Jair Bolsonaro without the current embarrassment of lacking legal competence to do so. He argues that Gilmar Mendes’ vote resolves all impasses, preparing the ground for the former president’s future trial.

Dallagnol also expresses concern about the fact that the Court ignores the consequences of its changes in the interpretation of the forum rule, which could lead to the annulment of hundreds of investigations and proceedings against authorities for serious crimes, without the possibility of reparation.

“The current rule on the privileged forum establishes that presidents, vice-presidents, ministers and federal parliamentarians only enjoy this privilege before the Supreme Court if three requirements are met: the crimes must have occurred during the term of office, neither before nor after; the crimes must have be directly related to the exercise of the position; and the privileged forum is only maintained for the duration of the mandate”, he highlighted, in an article for the People’s Gazette.