The Federal Supreme Court (STF) validated, by majority vote, the increase in penalties for crimes against honor committed against public officials due to their duties, including the presidents of the Federal Senate, the Chamber of Deputies and the Court itself as potential victims of the offenses. The legislation being questioned amended the Penal Code to establish that this situation can increase the punishment by a third.
Crimes against honor are insult, slander and defamation. The debate took place through an action presented by the Progressive Party (PP), which questioned the validity of the rule that established an increase of one third in the sentence in these cases. The provision was changed in 2021 by a law that expanded the scope of protection for public servants to include the presidents of the Senate and the Chamber of the STF.
According to the PP, the device violates constitutional principles, such as political pluralism, equality and the free expression of thought and gives excessive protection to the honor of public agents in comparison with other citizens, which would violate the Democratic Rule of Law.
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According to the position of the majority, led by minister Flávio Dino, functional immunity and freedom of expression cannot serve as a shield for criminal practices. For him, public agents must withstand criticism, even when harsh or unfair, as long as these manifestations do not exceed the limits established by Criminal Law.
Also according to the minister, the removal of the aggravating factor could generate a social consequence by allowing offenses against public servants under the argument of freedom of expression. Dino was accompanied by ministers Cristiano Zanin, Alexandre de Moraes, Gilmar Mendes and Nunes Marques.
The case’s rapporteur was Minister Luís Roberto Barroso, who before retiring had voted for only the crime of slander — the false attribution of a crime to someone — to have an increased sentence. He was accompanied by ministers Edson Fachin, André Mendonça and minister Cármen Lúcia.
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In his vote, Barroso stated that the constitutional issue under debate was not the validity of the criminal types themselves, but the legitimacy of aggravating the sentence just because the victim performed a public function. When accompanying the rapporteur this Thursday, Fachin stated that freedom of expression guarantees the right to blunt criticism of state conduct and constitutes an indispensable element for pluralism and democratic control of power. Therefore, he pointed out that public agents must be subject to greater social scrutiny, and it is not legitimate to increase the sentence just because of the role performed by the victim.
