To veto investigations against parliamentarians without the endorsement of Congress and altering the rule of function by prerogative of function would not affect the judgment of the former president () in the action of the coup plot, experts.
The initiative is filed by congressmen after agreement to end what the plenary took for about 30 hours this week in protest against Bolsonaro’s house arrest.
Lawyers and law teachers heard by Sheet They conclude that, although the discussion may be legitimate, the measure would have no effect on the case, either by the procedural stage or because the jurisdiction of the (Supreme Court) is independent of the forum.
Under the current rule, it is up to the Supreme to process 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.
Deputies and senators work for the elaboration of a text that allows the congress to shield them from criminal investigations. The idea is as long as there is no prior legislative endorsement.
Congressmen still aim to reform the Institute of the Special Forum to set three degrees of jurisdiction, starting in the Federal Regional Courts (TRFs), with the possibility of appeals to the (Superior Court of Justice) and the STF itself.
For Miguel Godoy, lawyer and professor of Constitutional Law at UnB (University of Brasilia) and UFPR (Federal University of Paraná), the proposal would be unconstitutional for violating the republican principle by creating a privileged and unequal condition for congressmen without legitimate justification.
For him, the most appropriate would be to keep the forum in the STF for presidents of powers (President and Vice President of the Republic and presidents of the House, and the Supreme), while the others would be tried by the Common Justice.
Still, a proposal is hardly approved in these terms, it would have effects on the coup plot process in which former President Bolsonaro is a defendant, as the instructional phase is over and the case is already in final allegations, he says.
The proposal for legislative authorization for investigations, in turn, would be completely outdated, anti -republican and deeply unequal, he says. “Violates the isonomy between citizens and threatens the credibility of political institutions.”
“Insisting on corporate privileges such as this means not only institutional backwards, but also reinforcing the idea that parliamentarians are above the law. This is incompatible with the foundations of the rule of law.”
Insper Luiz Fernando Esteves’s law professor agrees that the authorization for investigations would be incompatible with, because it could make investigations unfeasible and prevent the accountability of deputies and senators.
He recalls that the 1988 Constitution required the endorsement of processes to open processes until 2001, a model that considers legally valid but still negative from a practical point of view because it makes it difficult to punish crimes.
Regarding the transfer of the Supreme Court forum to the Federal Court, Esteves evaluates that the change is constitutional, but can lead to practical problems, such as magistrates by decreeing precautionary measures against parliamentary.
In addition, Esteves sees an indication of unconstitutionality in the event of including a device in the text to allow the application of the new rule in the former president’s process. “There is a very plausible argument in the sense that this disposition would violate the separation of powers.”
Criminalist Alberto Zacharias Toron, professor of criminal procedure at FAAP, says that the proposal to change the forum is legally valid and democratic, but driven by political interest: escape from a more rigorous supreme.
“As ordinary people [pessoas comuns] They are judged in the first instance, and the nobles are not. Why not parliamentarians? There is an idea from a purely democratic, egalitarian thought that everyone should be judged in the same forum. “
“This is perfectly possible to be done through a PEC [Proposta de Emenda à Constituição]. The big question in the end is not legal, it is political. Politics in the sense that they are doing this to get rid of a more punitive Supreme Court. “
The lawyer, on the other hand, considers one misconception the idea that all cases would go to the Federal Regional Courts, noting that the jurisdiction to prosecute and judge depends on the type of crime, not the position of the person.
In the case of former President Bolsonaro, he evaluates that eventual PEC would not change his situation, because he is tried in the STF for “connection” with other inquiries, a criterion he considers improper and violating due process.
It also classifies as a backwardness to the proposal to demand prior congressional authorization for investigations against parliamentarians because it would generate impunity. “This has to be said with all the letters.”
