Demystifying the privileged forum
- Hélio Jansen
- Mar 4, 2023
- 7 min read
The end of this privileged forum will bring more harm than good, as a matter of fact. The benefit it will bring will be for the investigated authority itself...
Summary
Comments on the forum by prerogative of function; referred to as a privileged forum. General objective: analysis of the privileged forum; specific objective: the historical evolution, what it is for and the damage to the legal system of its extinction, "in force" to impunity and analysis of the immunity of public functions.
KEYWORDS: Forum by prerogative of function. Privileged forum. Immunity from public functions.
Analysis of the forum by prerogative of function
The legal system has legal dictates to be applied to any jurisdiction. To solidify a parsimony, society needs to be organized with laws to perpetuate it, and the construction of these legal norms is done by members of the same society; speaking at the level of Brazil – and contemporary, democratic, legal Brazil –, there is the forecast of public figures for the construction of these legal norms.
Brazil, legally as we know it, was formed in 1824 with the Imperial Constitution, which already provided for the construction of these legal norms by a group of public figures, which came to be called Deputies and Senators. Such public figures are likely to be prosecuted for any crimes they may commit and, for that, a legal body is necessary to prosecute them. This is where the famous privileged forum is born.
However, where is the privileged forum in the imperial legal order?
It is foreseen in Art. 2 of the law of September 18, 1828. In Verbis:
LAW OF SEPTEMBER 18, 1828
Creates the Supreme Court of Justice and declares its attributions.
(Brazilian Empire: validity of the 1824 constitution, granted on March 25, 1824).
CHAPTER II
FUNCTIONS OF THE COURT
2nd. Be aware of the crimes, and errors of office, committed by its Ministers; the illegible Relations, the employees in the Diplomatic Corps, and the Presidents of the provinces[1].
[1] BRAZIL. law of September 18, 1828 (1828). law of September 18, 1828. Creates the Supreme Court of Justice (September 18, 1828). Rio de Janeiro, 1923. Available at: <http://www.planalto.gov.br/ccivil_03/leis/lim/LIM-18-9-1828.htm>. Accessed on February 18, 2023.
Thus, the forum was born by prerogative of function that the doctrine called a privileged forum, needing to have a competent court to judge certain authorities. The media synonymizes with impunity, but it has nothing to do with impunity; and this will be explained.
The first Republican Constitution, enacted on February 24, 1891, brought the phenomenon of the forum by prerogative of function, legal provision in Art. 59, I, "a", "b", "c", "d", "e" of CF/1891. In Verbis:
Art 59 - The Federal Supreme Court is responsible for:
I - Prosecute and judge originally and privately:
a) the President of the Republic in common crimes and the Ministers of State in the cases of Art. 52;
b) Diplomatic Ministers in common crimes and those of responsibility;
c) the causes of and conflicts between the Union and the States, or between these with one another;
d) disputes and claims between foreign nations and the Union or States;
e) Conflicts between Federal Judges or Courts among themselves, or between them and States, as well as between Judges and Courts of one State and Judges and Courts of another State[2].
[2] BRAZIL. Constitution (1891). Constitution of the Republic of the United States of Brazil (February 24, 1891). Rio de Janeiro, 1891. Available at:<http://www.planalto.gov.br/ccivil_03/constituição/constituicao91.htm>. Accessed September 18, 2023.
I beg you to speak of the introduction of this legal phenomenon only with these two legal norms, constitutions. Now, I will make a time jump and go to the neocontemporaneity, in order to talk about the Republican Constitution of 1988, which also provides for the forum by prerogative of function, infamous privileged forum. Authorities determined in the Constitution have this forum to “facilitate” the judgment of these authorities when they commit illegalities.
The prediction is in Art. 53, § 1, CF/1988. In Verbis:
Art. 53. Deputies and Senators are inviolable, civilly and criminally, for any of their opinions, words and votes. (Wording provided by Constitutional Amendment No. 35 of 2001)
§ 1 Deputies and Senators, from the issuance of the diploma, will be submitted to judgment before the Federal Supreme Court. (Wording provided by Constitutional Amendment No. 35 of 2001)[3].
[3] BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil, 1988. Brasília, DF: President of the Republic, [2023]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on February 18, 2023.
The forum by function prerogative (privileged forum) is nothing more than the competent court to judge that particular authority; so it is clear that it has nothing to do with impunity. The basis of the jurisdiction of the Federal Supreme Court is provided for in Art. 102, I, of the Federal Constitution of 1988. In Verbis:
Art. 102. It is incumbent upon the Federal Supreme Court, primarily, to safeguard the Constitution, being responsible for:
I - Prosecute and judge, originally:
b) in common criminal offences, the President of the Republic, the Vice-President, members of the National Congress, their own Ministers and the Attorney General of the Republic;
c) in common criminal offenses and crimes of responsibility, the Ministers of State, subject to the provisions of Art. 52, I, members of the Superior Courts, those of the Federal Court of Accounts and heads of permanent diplomatic missions;
c) in common criminal offenses and crimes of responsibility, the Ministers of State and the Commanders of the Navy, Army and Air Force, subject to the provisions of Art. 52, I, members of the Superior Courts, those of the Federal Court of Accounts and heads of permanent diplomatic missions; (Wording provided by Constitutional Amendment No. 23 of 1999)[4].
[4] BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil, 1988. Brasília, DF: President of the Republic, [2023]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on February 18, 2023.
After all, why this “obsession” in “blaming” the privileged forum?
In my view, it is – precisely – because it is called a privileged forum.
The term “privilege” means “something good”, “advantageous”. But, legally, speaking of the privilege related to the forum, it is (simply) because it is for certain people.
This obsession in the discussion on the privileged forum reached a level where a PEC was proposed, PEC 333/17[5], proposed by the then Senator, Álvaro Dias, sent to the Chamber of Deputies for voting. In case of approval, there would be a constitutional change, ending the infamous privileged forum (until the time of writing this work, the referred PEC was not voted and approved; that is, there was no constitutional change for the end of the privileged forum).
I beg you to outline my opinion on the notorious privileged forum:
The end of this privileged forum will bring more harm than good, as a matter of fact. The benefit it will bring will be for the investigated authority itself. I explain through the following hypothetical scenario: there was a constitutional change and the privileged forum no longer exists. A certain senator is being prosecuted for misuse of funds (Parliamentary Amendments) and, as a result, is being prosecuted by the Federal Court of state X. With all his political influence, he puts pressure on the federal judge of that state (threats and death threats, including ); the federal judge, in turn, afraid of these threats, acquits this defendant and, thus, there is [materiality] impunity. With the special forum, in this case, the influence of that Senator no longer has so much weight to pressure and threaten the ministers of the STF.
So, whose “fault” is this “impunity”?
The immunity of these authorities. We will now talk a little about these immunities regarding the position of Federal Deputy, which has its parliamentary immunity provided for in Art. 53, § 2, of the Federal Constitution of 1988, In Verbis:
Art. 53. Deputies and Senators are inviolable, civilly and criminally, for any of their opinions, words and votes. (Wording provided by Constitutional Amendment No. 35 of 2001).
§ 2 From the issuance of the diploma, members of the National Congress may not be arrested, except in flagrante delicto of a non-bailable crime. In that case, the records will be sent within twenty-four hours to the respective House, so that, by the vote of the majority of its members, it decides on the arrest. (Wording provided by Constitutional Amendment No. 35 of 2001)[6].
[5] DIAS, Álvaro. PEC 333/2017. Chamber of Deputies. 06 Jun. 2017. Available at: <https://www.câmara.leg.br/proposicoesWeb/prop_mostrarintegra;jsessionid=A938076D39D405CA86D4DFB7A43588B0.proposicoesWebExterno2?codteor=1566703&filename=PEC+333/2017>. Accessed on: September 18, 2023.
[6] BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil, 1988. Brasília, DF: President of the Republic, [2023]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on February 18, 2023.
In a specific work, I will talk about the immunity of these authorities and why they exist. But, in order not to stray from the subject, I say that the reason why there is a feeling of impunity is this immunity, mainly due to the obligation of being able to support the investigation by the House.
The President of the Republic, in turn, also has immunity. Its existence would be so that there would be no “difficulty” in exercising the position, as provided for in Art. 86, of the Federal Constitution of 1988. In Verbis:
Art. 86. Once the accusation against the President of the Republic has been admitted, by two thirds of the Chamber of Deputies, he will be submitted to trial before the Federal Supreme Court, in common criminal offenses, or before the Federal Senate, in crimes of responsibility.
§ 1 The President shall be suspended from his duties:
I - in common criminal offenses, if the complaint or criminal complaint is received by the Federal Supreme Court;
II - in crimes of responsibility, after the initiation of the process by the Federal Senate.
§ 2 If, after a period of one hundred and eighty days, the judgment is not concluded, the removal of the President will cease, without prejudice to the regular continuation of the process.
§ 3 Until a condemnatory sentence has passed, in common infractions, the President of the Republic shall not be subject to imprisonment.
§ 4 The President of the Republic, while in office, cannot be held responsible for acts outside the exercise of his functions[7].
[7] BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil, 1988. Brasília, DF: President of the Republic, [2023]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on February 18, 2023.
Therefore, the “guilt” of the “impunity” of these authorities is not the forum by prerogative of function (the privileged forum), but immunity is necessary for the exercise of the function. As every human being has his greed, there are abuses of these immunities that – because of the slowness of justice – ends up in impunity.
So, the solution we see is: a reform (to be very well studied) in terms of immunity for the exercise of elective public functions.
References
DAYS, Alvaro. PEC 333/2017. Chamber of Deputies. 06 Jun. 2017. Available at: <https://www.câmara.leg.br/proposicoesWeb/prop_mostrarintegra;jsessionid=A938076D39D405CA86D4DFB7A43588B0.proposicoesWebExterno2codteor=1566703&filename=PEC+333/2017>. Accessed on: September 18, 2023.
BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil, 1988. Brasília, DF: President of the Republic, [2023]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on February 18, 2023.
BRAZIL. Constitution (1891). Constitution of the Republic of the United States of Brazil (February 24, 1891). Rio de Janeiro, 1891. Available at:<http://www.planalto.gov.br/ccivil_03/constituição/constituicao91.htm>. Accessed September 18, 2023.
BRAZIL. law of September 18, 1828 (1828). law of September 18, 1828. Creates the Supreme Court of Justice (September 18, 1828). Rio de Janeiro, 1923. Available at: <http://www.planalto.gov.br/ccivil_03/leis/lim/LIM-18-9-1828.htm>. Accessed on February 18, 2023.
Hélio Jansen.
Attorney.
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