Despite there being elements that could constitute crimes against honor, the parliamentary immunity of federal deputy Marcel Van Hattem (-RS) tends to protect him from being judicially condemned in a case involving PF delegate Fábio Shor, in the interpretation of experts consulted for the Sheet.
They argue, however, that the (Superior Federal Court) and the (Supreme Federal Court) have already taken a position on restrictions on the constitutional guarantee, which is not absolute. They also say they do not see abuse of authority by the PF with the indictment.
The indictment generated a reaction from parliamentarians, and the president of the Chamber, (-AL), said this Wednesday (27) that the . The PF is also investigating deputy Cabo Gilberto Silva (PL-PB) about speeches on the stand, according to the report. Sheet.
Van Hattem was indicted on November 13 on suspicion of slander and slander. This happened due to speeches given in the Chamber on August 14th, October 15th and 16th and also because of messages on the internet.
The speech that gave rise to the inquiry was that of August 14th. In it, the parliamentarian called Shor an “abuser of authority” and a “coward”. He stated that the delegate had made “several absolutely fraudulent reports” against , a former advisor to the ex-president () who was arrested in February in Operation Tempus Veritatis, and other “innocent people”. On the occasion, the deputy, who is known for criticizing the STF and for being a supporter of the former president, showed a photograph of the delegate in the plenary.
In later speeches, Van Hattem called Shor a “thug.” He said that the police chief is “persecuting”, “threatening” and “committing crimes” and said that “it is dominated by criminals to protect criminals”. Statements calling the police officer “outlaw” were also made on social media.
In the report, the police speak of “deputy Van Hattem’s clear intention to embarrass, humiliate and offend the person DPF Fábio Shor”. It also says that the parliamentarian allegedly accused the delegate of “practicing very serious criminal acts, publicly accusing him of having forged police reports, falsifying information with the intention of intentionally harming third parties under investigation”.
Van Hattem was summoned to clarify the facts, but did not appear, according to the PF report. In his written defense, however, he argued that the criticism was not personal, but aimed at attacks on democracy and freedom.
The deputy’s defense said in a statement that they considered the indictment “partial and illegal”, as well as “violating parliamentary immunity”.
HAS Sheet Alexandre Wunderlich, his lawyer, stated that Lira’s statement is in line with the defense’s interpretation of the “illegality of the indictment by the Federal Police”. The lawyer said he hopes the Public Prosecutor’s Office will close the case. “The parliamentarian’s speech was about denunciation, inspection and has a causal link with the political issue of exercising his mandate.”
According to Jordan Tomazelli, master in procedural law from Ufes (Federal University of Espírito Santo), speeches in plenary or in the exercise of the mandate have, in principle, immunity, but this prerogative is not absolute.
He argues that the STJ and the STF have already taken a position on what, according to the expert, involves “speech that aims to attack individual members or people for the purpose of harming their image, without any collective interest”.
“When criticism comes with personal offenses against the public agent, there may be a violation of the principles of impersonality and morality in article 37 of the Constitution. Added to other principles that guarantee the dignity of the human person, intimacy and honor, this can remove rule 53 [que prevê a imunidade] of the Constitution”, he says.
The expert states that he does not see any abuse by the PF in the indictment. He says that, according to the legislation, there is abuse when a criminal investigation is initiated with a clear absence of evidence of authorship and materiality or without just cause.
He, however, does not consider this to be the case, since there would be evidence to support the institution’s decision. “It was understood that what was said in plenary was appropriate to these exceptional situations that the STF has already said could occur”, says Tomazelli.
He states that the deputy was invited to explain the accusation regarding fraudulent reports, but did not appear, leaving the PF to indict him on suspicion of a crime against honor.
Beatriz Alaia Colin, criminal lawyer and specialist in criminal law and national and European criminal procedure from the University of Coimbra, states that there is a subjective aspect to these crimes.
She says that the fact that Van Hattem spoke about the issue in the Chamber weighs in his favor, due to parliamentary immunity. However, he understands that the PF does not abuse when indicting him, as it understands that there are issues that can be investigated.
“The mere indictment cannot be an abuse of authority, because otherwise we would also end up mitigating the Federal Police’s own powers of investigation”, he says.
Colin, however, says he considers a sentence inappropriate in this case. “There is a crime, it just cannot be punished due to parliamentary immunity. It excludes illegality”, he says.
According to Maira Scavuzzi, constitutional law lawyer, “the case touches on a critical point of material immunity, which has always been the big discussion.”
She states that, in her interpretation, what draws the most attention in this case is the context of the discussion. “What it seems is that the deputy is trying to discredit the institution of the PF, especially this delegate, in order to restrain or try to stop the institution in its attacks against coup acts”, he says.
What is parliamentary immunity and what crimes is Van Hattem accused of?
Accusations
Federal deputy Marcel Van Hattem (Novo-RS) was indicted by the PF on suspicion of slander, when it is falsely said that someone committed a crime, and insult, when a person insults another in order to harm dignity, honor and morality ; Corporal Gilberto Silva (PL-PB) is being investigated for the same crimes, but has not yet been charged
Constitutional text
The Constitution defines, in its article 53, that deputies and senators are exempt from criminal or civil liability for what they say and how they vote on legislative proposals.
special forum
As soon as they take office in the positions for which they were elected, the members are judged by the STF (Supreme Federal Court) in case of any crimes committed during their term of office.
Prison
Congressmen can only be arrested in the case of a flagrant crime in something classified as non-bailable; In the event of detention, the case files are forwarded to the Legislative House of the deputy or senator within 24 hours, so that the members themselves can decide whether to maintain or revoke the detention. Furthermore, the member of the Legislature remains in the custody of the Federal Police
Removal and revocation
A court decision can remove a congressman from his mandate on a precautionary basis, and the STF can remove a deputy or senator in a collective decision; Furthermore, reports of crimes can lead to loss of office due to breach of parliamentary decorum, to be analyzed by the congressman’s Legislative House
Powders-dictatorship
The rules of parliamentary immunity were constitutionalized in the 1988 text in view of the recurrent practice of the military dictatorship, in force from 1964 to 1985, of revoking mandates from the Legislature, especially those opposing the regime.
