Court has majority to expand jurisdiction, including for those who have already left office; case would affect trials involving former president Jair Bolsonaro
The STF (Supreme Federal Court) resumes this Friday (20.Sep.2024), in a virtual plenary session, the trial that discusses the maintenance of the forum by prerogative of office – including after leaving office –, known as privileged forum.
The Court already has a majority to expand the scope of the forum, but a request for more time for analysis by Minister André Mendonça postponed the conclusion. The trial ends next Friday (September 27).
In 2018, the Supreme Court had determined that When a politician or authority leaves office, they lose their privileged status. Therefore, the proceedings or investigations ceased to be the jurisdiction of the STF and were referred to lower courts.
With the new understanding, trials of authorities who held jurisdiction will return to the highest court. The decision may affect the jurisdiction of the trial of cases related to the former president. Jair Bolsonaro (PL) and former Minister of Human Rights Silvio Almeida, for example. There is also a risk of drowning in cases in the Supreme Court.
CONCRETE CASES
The Court is analyzing 2 different cases. One deals with a habeas corpus filed by the senator Zequinha Marinho (Podemos-PA). The ministers decide whether the STF can judge an action against the congressman for alleged practice of “rachadinha” (payroll transfer) when he was still a federal deputy.
In the lawsuit, the congressman claims that he has successively held positions with prerogatives of office. Therefore, he says that he should be tried by the Supreme Court, and not by the 1st Instance. The Court’s current rule establishes that an action must be sent to the 1st Instance after the end of the term, unless the case is in the final stage of processing.
The other process is an investigation against the former senator. Rose de Freitas (MDB-ES) for alleged crimes of passive corruption, fraud in bidding, money laundering and criminal organization. The crimes involve Codesa (Espírito Santo Dock Company). Rose was not reelected and left her position as senator in 2023. As a result, the rapporteur of the investigation, Minister Nunes Marques, forwarded the case to the State Court of Espírito Santo. The former senator appealed to the Court and requested that the case be shelved by the STF.
REPORTER’S VOTE
The rapporteur of the case, Minister Gilmar Mendes, voted to expand the scope of the Court’s jurisdiction even after the end of the politicians’ term. In his vote (full – PDF – 223 kB), Gilmar stated that he was convinced that “the jurisdiction of the Courts to judge functional crimes prevails even after the cessation of public functions, for any reason (resignation, non-reelection, dismissal, etc.)”.
The vote is accompanied by: ministers Alexandre de Moraes, Cristiano Zanin, Dias Toffoli, Flavio Dino and Roberto Barroso (president).
The majority of ministers understood that sending the case back to another instance when a mandate ends harms the procedural process and postpones the conclusion of the investigations.
If the rule is valid, several cases against politicians and authorities must be referred from the 1st Instance to the STF, as long as they were committed in the exercise of their functions. Cases underway at the Supreme Court continue to be under the jurisdiction of the Court if the politician or authority loses their position.
There are still 5 ministers left to vote: André Mendonça, Cármen Lúcia, Edson Fachin, Luiz Fux and Nunes Marques.
WHO HAS THE RIGHT TO THE JURISDICTION
By determination of the Constitution, the following have special jurisdiction, for example, the President of the Republic and the Vice President; congressmen; the Attorney General of the Republic; ministers of the Union; members of the (Superior Electoral Court), STJ (Superior Court of Justice), TCU (Federal Court of Auditors); and the ministers of the Supreme Court themselves, among others.
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