If it is approved by Congress, it would be not only unconstitutional, but also violate international pact of which Brazil is a signatory, A over, evaluates the Professor of Constitutional Law Flavia Piovesan.
She has worked as Secretary of Human Rights in the presidency of Michel Temer (MDB) and was vice-president of the Inter-American Commission on Human Rights, an integral body of the OAS (Organization of American States) of which he was a member from 2018 to 2021.
“This would mean an international illicit,” he says. “As worse, because it also provides for the secret vote, not only violates the federal, [como] She is unconventional because she violates the American convention. “
According to the text under analysis, federal deputies and senators can only be prosecuted criminally in the (Federal Supreme Court) with prior authorization from the National Congress. The same requirement would be valid for state deputies, by ripple effect.
For Piovesan, the proposal approved by and now in the Senate, disrespect not only the parameters of the pact to which Brazil joined in 1992 but also a 2021 sentence that occurred in 1998 practiced by a deputy – which had the procedural progress barred at the time thanks to the rule.
“It is an absolutely anachronistic and violating proposal of the rule of law, violating the heart of constitutional values,” she says, who is a professor of constitutional law and human rights at PUC-SP (Pontifical Catholic University of São Paulo) and scientific coordinator of the unit of monitoring and supervision of decisions of the inter-American system in the CNJ (National Council of Justice).
She also criticizes the forecast of confidential voting, which she sees as an additional problem to the previous version. “The secret vote is an aberration and means an inadmissible setback. It is unacceptable in the legal field, the moral field and the political field.”
International law affront
The case that resulted in the condemnation of the Brazilian State in 2021 was.
This was after the Legislative Assembly of the State of Paraíba – from the same type of immunity as the House now wants to rescue – twice a request from the State Court of Justice to start a criminal case against one of its members.
State Representative Aércio Pereira de Lima was accused by the murder of young Marcia Barbosa de Souza. In 1998, at the age of 20, she was found dead in a thicket. The autopsy pointed to suffocation asphyxiation preceded by beating.
The lawsuit against the deputy only started years later, in 2003, when he had no mandate, and the rule had already been changed by Congress. Sentenced to 16 years in prison, Aércio died without serving the sentence: he suffered a heart attack in 2008 still with an appeal pending analysis.
According to the decision of the Inter -American Court, the way the parliamentary immunity was regulated at the time “was contrary to the right of access to justice and the duty to adopt provisions of internal law.”
“It is not that parliamentary immunity is the central element [deste caso]But it is an important element to be considered because it is the one who will justify the ineffectiveness of the justice system, “says Piovesan, who even contributed one of the civil society groups that mobilized to formulate the complaint brought to analysis in the commission.
She currently sees the PEC discussed in Parliament today as a violation of articles 8 and 25 of the American Convention, which deal with judicial guarantees and protections, as well as Article 2, which establishes the commitment of the states to adopt the necessary measures to make the rights and freedoms agreed.
“Brazil, as part of the American Convention, and must fulfill it in good faith, must harmonize its internal legal order in the light of these minimal protective parameters,” says Piovesan. “If the state is beyond them, better, it cannot be short, as it happened here [no caso de Márcia].”
Unconstitutionality
In addition to considering the measure a violation of international law, it also argues that the shielding PEC would be unconstitutional. Quoting excerpt from the Constitution that “the law will not exclude from the judiciary’s assessment of injury or threatening the right” and using as an example what happened in the case of Marcia Barbosa, she sees a violation of the right to access to justice.
As a second point, she sees an affront to the separation of powers. “It is an act that shields so abused, excessive and disproportionately the legislative power, which empties the function of the other power, which hinders the realization of justice.”
Finally, she also cites what she sees as a violation of the principle of transparency and advertising, criticizing the prediction of the secret vote.
Piovesan counteracts the argument that, as it was foreseen in the original text of the Constitution, the norm now seeking to redeem could not be considered unconstitutional. “I understand that the Constitution of 88 must be interpreted evolutionary and dynamic,” she argues, also pointing to jurisprudence as an important element.
She also mentions that, in 2013, a constitutional amendment eliminated the forecast of the secret vote for the analysis of presidential vetoes by Congress and for process of loss of mandate. “We walk to improve our democracy, to densify and strengthen the principle of transparency and advertising.”
