A, whose text of only five paragraphs was approved on Wednesday (17) by the House, keeps in its lean size a range of doubts and gaps with the potential to paralyze processes across the country, including related to state deputies.
The central objective of the bill is to oblige the Supreme Court (STF) to request a prior license from Congress to criminally prosecute federal deputies and senators, a rule that existed from 1988 to 2001 and fell due to a broad scenario of impunity.
The bill has followed for senators analysis and, if approved, will be promulgated. Amendments to the Constitution do not go through a presidential veto or sanction.
PEC is an ancient desire for much of the political world that publicly argues to need to defend itself with judicial coercion by ideological discourses and positions. Behind the scenes, the main fear is investigations by the suspicion of the application of billionaires parliamentary amendments.
See, point to point, the breaches, doubts and potential effects of PEC.
Precautionary measures
The first point of the PEC amends the current paragraph 1 of article 53 of the Constitution, which today is to say that deputies and senators will be submitted to trial in the Supreme.
PEC adds that “at any time,” they “will only be targeted by precautionary measures of a personal or real nature of it [STF] coming “.
The interpretation is that the newsroom gives rise to the armor of parliamentarians, at any time, against measures such as search and seizure, breach of confidentiality, blockade of goods and salaries ,.
“There is a risk that it is understood that parliamentarians cannot be the target of any kind of precautionary measure, even from civil or labor processes. That is, they are immune even regarding illicit or acts of non -compliance with no relationship with the mandate,” says Guilherme France, manager of the International Transparency Anti -Corruption Center.
The essay also suggests a widely prerogative forum, including protection of non -nexus facts with the position or prior to the mandate, colliding with jurisprudence of the Supreme Court. Today congressmen has only forum in the Supreme Court for criminal offenses committed in the exercise of the mandate and related to him.
Precautionary measures against federal deputies determined by other instances are not uncommon.
Recently, for example, an allied federal deputy of (-PB) was (Superior Court of Justice) for alleged offenses committed when he was a state deputy.
Federal Deputy Arthur Lira (PP-AL), one of the main articulators of the current PEC, had years ago blocking goods and part of the salary ordered by the court of Paraná, in civil processes within the Lava Jato.
Congress endorsement
The second and third paragraphs of the PEC establish the need for prior authorization of chamber and Senate so that parliamentarians are criminally prosecuted in the Supreme Court. The vote for license, secret, should occur within 90 days
There is no mention of transition period. As amendments to the Constitution have immediate effect, processes in progress can be frozen.
In 2022, for example, the Supreme Court decided that the slowdown in the congressional misconduct law in the previous year was worth in progress.
“It is possible for parliamentarians to demand an authorization from the houses to which they belong to the continuity of even the processes already started. After all, any new act in the context of these criminal proceedings would represent an exception to the rule,” says France.
There is also doubt about what happens in cases not yet tried and are in lower instances because they are not related to forum. Will they have to be sent to the STF? Should there be congressional authorization to follow the course?
There is also no mention of implications if Congress does not deliberate within 90 days. Heard experts say there is some consensus that eventual omission means tacit approval to the process. Others say there is doubt.
“There is no prediction about what happens if the deadline is not respected. This normative emptiness can generate legal uncertainty and even paralyze investigations, as ongoing processes in lower instances would need to be sent to the STF and be pending the political endorsement of Congress,” says Berlinque Cantelmo, a lawyer specializing in criminal law and partner of the RCA Advogados.
Cascade effect for state deputies
The Constitution states that state deputies apply the same rules regarding inviolability and immunity.
The Supreme Court has already decided in specific cases that immunities guaranteed by the Federal Constitution to federal and senators are also applicable to the 1,059 state deputies.
If this interpretation prevails, proceedings at the state level across the country that mirror state deputies will also need to endorse the respective legislative assemblies.
Prescription
The fourth paragraph of the PEC states that only if Congress refuses the STF’s request to prosecute parliamentarians there is a suspension of the prescription while the term lasts.
In cases where the process remains suspended without the congressional deliberation, the prescription time follows, benefiting parliamentary targets of processes.
Shielding party president
The last paragraph of the PEC extends the special forum in the Supreme Court to presidents of political parties with representation no.
This has the potential to benefit politicians who command subtitles, but have no mandate, such as those of the three largest subtitles of the Chamber: Valdemar Costa Neto (PL), Edinho Silva (PT) and Antonio Rueda (União Brasil).
“Political party president is not a public authority. The political party, although carries with it eminently public, is a legal entity of private law. There is no reason, especially in a discursive context of protection of Congress prerogatives, to extend the forum by the prerogative of function to the political party leader,” says Guilherme Barcelos, a doctor in constitutional law and a partner of Barcelos Advogados.
How will it work in practice
If promulgated, the PEC must be the subject of questions in the Supreme Court, which can consider it, in whole or in part, unconstitutional. The fact that the 1988 Constitution established the shield would make a decision to do so.
The measure approved by the constituents, however, had as its backdrop the need to protect parliamentarians in an environment in which the country had recently been dictated, which persecuted and sparked politicians due to their political positions.
In addition, the shielding PEC has differences and is broader from the rule that was worth from 1988 to 2001.
The Supreme Court should also comment on the practical application of various points of the proposal.
