It concluded on Tuesday (11) trial in which it decided to extend the scope of the. The new understanding, which was limited to crimes committed during the mandate and because of it.
The ministers argue that the decision that allowed the accused to handle the judging body of their proceedings from the possibility of resignation. Over the decades, the theme has had several comings and goings in the Supreme, generating one.
With a score of 7 to 4, the case was reported by the minister. Ministers André Mendonça, Edson Fachin, Carmen Lúcia and Luiz Fux were won by the majority.
Frequently called privileged forum, the forum by prerogative of function has back the Constitution and ensures that some public authorities are judged by higher courts of justice, with the objective of avoiding pressures that could occur in lower instances.
Because of the premise, parliamentarians must be tried by, mayors in the second instance and governors in the (Superior Court of Justice).
Maíra Salomi, lawyer and vice president of the IASP Criminal Law Commission (São Paulo Lawyers Institute), says there are two rules that guide the incidence of the special forum.
Regarding the nature of the crime, the contemporary rule concerns the connection between the offense and the functions of the position. The current rule, in turn, observes the simultaneity between the practice of crime and the.
“Our Constitution speaks what are the forum holders by prerogative of function, but it does not bring what the exact interpretation is due to this device,” says Maíra about the reasons that explain the shift of matter in the STF.
As it was
The last relevant decision on the subject had been issued in 2018, in the wake of the. At the time, it was common in debates in the model’s critical political and legal media to point out that the prerogative crashed investigations, contributing to impunity. From the judgment of a matter of order in criminal action 937, the Supreme restricted its own competence in cases with special forum.
The rule began to consider that the accused had to occupy the position at the time the case was instituted. In addition, the mandate exercised should be the one who kept relation to the crime committed.
For this understanding, if a federal deputy, for example, suffered an investigation resulting from a suspicion related to the period in which he was mayor, the case should not be the attribution of the Supreme. Still, if the federal deputy is prosecuted at the Supreme Court, but the mandate ends before the judgment is concluded, the case is sent to the first instance.
Maíra states that more restrictive interpretations of the special forum can decrease the overload of courts. This is what happened in the STF after the 2018 change. Data from 2022 show that the number of criminal actions and inquiries in the court.
As it was
Again expanded, the rule that is worthwhile extends the competence of the Supreme even after the accused fails to occupy the positions they led to the special forum.
Thus, it is no longer possible for the process to change a judging body by resignation or loss of mandate. Given this new rule, in the case of a federal deputy sued in the Supreme Court, the process will continue to court even if he leaves the function.
In addition, the establishment of inquiries and criminal actions may occur after the investigated or accused has already left office.
A symbolic case is that of the former mayor. In December, Gilmar Mendes had declared the Supreme Court’s competence to judge the former parliamentarian in process of corruption. The minister stated that there was a direct relationship of the facts determined with the exercise of the mandate, justifying the prerogative of forum. But Cunha has not been a deputy since 2016.
Maíra Salomi states that the STF’s decision should reverberate in other bodies that are also competent to judge special forum processes. “As we have positions with a function prerogative in other courts […] We will have the reflection of this understanding in all these courts, “he says.
