STF forms majority to expand scope of special forum – 04/12/2024 – Power

The STF (Supreme Federal Court), with the vote of Minister Luís Roberto Barroso, formed a majority in the early hours of this Friday (12) to expand the scope of the special forum of authorities.

Barroso, who is the president of the court and had requested a review (more time for analysis) and stopped the trial on the 29th, accompanied the case’s rapporteur, Gilmar Mendes.

They are in favor of the understanding that, in cases of crimes committed in and because of the position, the special forum is maintained even after leaving the position.

Despite this, André Mendonça asked to be seen minutes after the opening of the virtual session and interrupted the analysis of the case again.

In addition to Gilmar, four other ministers had already voted with this understanding: Cristiano Zanin, Dias Toffoli, Flávio Dino and Alexandre de Moraes. With Barroso’s vote, the Supreme Court reaches six ministers in favor of the change.

The thesis proposed by Gilmar was that “the prerogative of the forum to judge crimes committed in the
position and by reason of the functions persists even after removal from office, even if the investigation or criminal action is initiated after its exercise has ceased”.

In his vote, Barroso stated that “the procedural ups and downs produced obvious harm to the closure of investigations, affecting the effectiveness and credibility of the criminal system. It also fueled the permanent temptation for defendants to manipulate jurisdiction.” .

The trial takes place in a virtual session of the Supreme Court, a platform in which ministers present their votes during a certain period, and was scheduled to be concluded on the 19th, before Mendonça’s request for a review.

The judgment gives the court more power over parliamentarians and increases the court’s pressure on the Legislature — which has adopted a series of proposals that contradict the judges.

The last time the Supreme Court had changed the understanding of the special forum was in 2018, in the wake of Operation Lava Jato and the increase in the number of ongoing criminal actions.

At the time, the court decided that only crimes committed during the mandate and related to the exercise of office should fall under its jurisdiction.

When voting this Friday, Barroso said that, in his assessment, the new change does not alter the 2018 proposal, but rather the 1999 one, which understood that the end of the position ended the STF’s jurisdiction over the processes.

“Considering the constitutional purposes of the forum prerogative and the need to resolve the problem of fluctuations in jurisdiction, which continue to produce the undesirable effects of slowness and dysfunctionality of the criminal justice system, I believe it is appropriate to define the stabilization of the forum by function prerogative, even after the cessation of functions”, he said, in his vote.

Initially, it was Gilmar who suggested the new change. He proposed that the “plenary revisit the matter, in order to define that leaving the position only removes the exclusive jurisdiction in cases of crimes committed before the investiture in the position or, even, those that have no relation to its exercise”.

He also stated that, “with regard to functional crimes, the forum prerogative must persist even after the termination of functions”.

According to the minister, “in practical terms, the approval of the proposal would stabilize the forum in the courts when the requirements of contemporaneity and thematic relevance are present.”

In his vote, Moraes followed the same line and stated that maintaining the forum “even after the end of the mandates” is an “important issue”.

Dino, in turn, stated that the thesis proposed by Gilmar “increases legal certainty” and provides “stability over the natural judge of the process, in addition to better enabling the reasonable duration of the process”.

When the jurisprudence on the subject changed in 2018, the new rules were approved by a narrow majority, with just 6 votes in favor, the minimum necessary.

The winning thesis decided that, if the politician loses his mandate at a time when the process is already in the final arguments phase, the action remains in the Supreme Court.

From a legal point of view, there are ministers who state that the current rule has gaps that need to be filled to avoid generating legal uncertainty, which justifies re-discussing the topic.

From a political perspective, one wing defends the expansion of the possibilities for judging authorities by the court as a way of strengthening the Supreme Court before the other Powers.

The current trial began in a context in which the Supreme Court is trying several people without positions involving a special jurisdiction due to investigations related to the coup acts of January 8, when the headquarters of the three Powers were invaded and vandalized.

Another public fact with an impact on the topic was the arrest of deputy Chiquinho Brazão (formerly from União Brasil-RJ) suspected of being involved in the death of councilor Marielle Franco (PSOL-RJ). At the time of the crime, he was a councilor, which, in theory, could remove the Supreme Court’s jurisdiction over the matter.

The analysis was resumed because Gilmar sent to the plenary a habeas corpus from senator Zequinha Marinho (Podemos-PA), who is responsible for the alleged practice of “rachadinha” when he was a federal deputy to the court.

The case is currently being processed in the Federal Court in Brasília, in the first instance. The parliamentarian claims to have never stopped holding an elected position and only changed his role — he was a deputy from 2007 to 2014, deputy governor of Pará between 2015 and 2018 and has been a senator since 2019.

Data from 2022 shows that the number of criminal actions and court inquiries fell by 80% compared to the period in force before the rule change, in 2018.