The decision of the Federal Supreme Court of expanding the scope of the special forum by prerogative of function eliminates a gap that brought uncertainty, but generates questions due to the comings and goings of the Court on the matter.
The court fixed last Tuesday (11) that a. The understanding extends the previous notion that the jurisdiction of the Supreme Court is circumscribed to cases of crimes committed in the mandate and because of it.
For a score of 7 to 4, the ministers understood that the new interpretation must have immediate application, and all acts performed based on the previous understanding is preserved. The thesis was proposed by the minister.
Lawyers and teachers heard by Sheet They claim that the new rule closes a breach that allowed suspects to renounce to escape a judgment in court, but say the position on the theme has lodged in recent years, generating legal uncertainty.
It is up to the Supreme to sue common criminal offenses of presidents, vices, congressmen, court ministers and prosecutors of the Republic, as well as common crimes and the responsibility of other agents.
The last major change of understanding on the subject occurred in 2018, when there was a change in the rules to reduce his scope to crimes “committed during office and related to the functions performed”.
The competence of the judging body was determined by the current rule, which observes the exercise of the function during the process. That is, by leaving the function, the occupant of the position could be tried by another court or judge.
For Alberto Zacharias Toron, lawyer and professor of criminal procedure at FAAP, this is the main point changed by the new decision of the Supreme Court. “Corrected dysfunction has to do with the impossibility of the accused, upon waiving the position for convenience, to be able to choose the judge who will judge him, that is, the court or the first instance judge.”
The lawyer and former president of IBCCRIM (Brazilian Institute of Criminal Sciences) Renato Vieira considers that the adjustment of understanding is a healthy step, but does not solve the problem of comings and goings of the Supreme Court depending on the period.
“This problem will be resolved when we relocate the penal jurisdiction originating from the Court, which goes far beyond attempts to willingly and corrected the ministers,” he says, who defends the approval of a constitutional amendment to sediment the subject.
“We will face it [um novo impasse acerca do alcance da prerrogativa de foro especial] In a few years. In about 10 years, at most this problem will emerge again, “Renato Vieira predicted.
Eloísa Machado, FGV’s professor Law, states that the court’s shuttle over the forum comes from almost two decades ago and that the supreme now expands and sometimes restricts competence because it faces challenges in the application of understandings.
For example, in 2010, the deputy (then PMDB-RO) resigned on the eve of the trial session. The congressman was accused of gang and embezzlement formation. The Supreme Court decided that it would not remove its competence, judged the case and condemned it to 13 years, 4 months and 10 days in prison.
“The main concern of the Supreme, at least the one explicit in these decisions, is to ensure that these investigated and these defendants have a dismissal, that the criminal action and the investigation comes to the end. And this is a challenge,” says Machado.
According to her, “what we are seeing is a challenge that has been put into the Supreme for many decades, which is precisely when this resignation affects the court’s ability to judge that case. The question is not trivial.”
The teacher maintains that there must be stabilization in understanding to avoid constant changes in interpretation to similar situations. It also says that although oscillations are not uncommon in courts, the speed in changes generates instability and legal insecurity, which is problematic.
Guilherme Carolós, president of IDDD (Institute of Defense of the Law of Defense), states that constant changes on topics such as the special forum negatively impact democratic guarantees and the credibility of the justice system.
“I have to give a defendant and even someone who is not being accused of a crime for the exact certainty of how the game will follow,” says Carlós. “As you change the game rule, with the ongoing game, and then you move back to the previous rule, there is an impact on this democratic principle of warning the rule before the game begins.”
Professor of Constitutional Law at Insper, Diego Werneck says that the moment the decision is made also seems to be related to the complaint offered by (Attorney General’s Office) of alleged coup plot in 2022.
The Attorney General of the Republic, denounced last month () and 33 others to the Supreme Court on charges of participating in the coup plan to keep the former president in power.
Bolsonaro is suspected of crimes of armed criminal organization, violent abolition of the Democratic Rule of Law, coup, damage qualified by violence and serious threat and deterioration of listed heritage.
The former chief executive is expected to avoid possible contamination in the 2026 presidential elections. The case should be considered by the rapporteur, the rapporteur, minister.
According to Werneck, the prosecution does not deal with the detail of the Supreme Court. With the new interpretation of the Supreme Court, however, it reduces the space that the defenses had for contestation, as part of the accused occupied positions with forum prerogative, but have already left the positions.
The teacher says, however, that there is still a “margin of maneuver” that can lead to unpredictability and uncertainty in judgments, which is the classification by ministers of crimes as being related to the functions performed.
“Deep down, this decision solves a problem that was real,” he says. “A source of uncertainty is controlled with this change of understanding, but essential uncertainty remains, which is the articular court to know what crimes are considered linked to the exercise of the function.”
