STF returns to discuss special forum six years after decision on the topic

The Federal Supreme Court will judge, from Friday (29/3), the scope of the forum by function prerogative. The analysis will continue until April 8, in the court’s Virtual Plenary.

In May 2018, the STF decided that deputies and senators should only respond to criminal proceedings in court if the alleged facts occurred during their term of office and are related to the exercise of their position.

At the time, it was also decided that investigations will continue at the Supreme Court only for the duration of the mandate. In other words, if the parliamentarian leaves office due to resignation, impeachment, or because he was not re-elected, for example, the investigation goes to the first instance. Previously, any investigation or criminal action against congressmen, even before their term, went to the Supreme Court.

The guidance may now receive changes. In the case that will be analyzed by the STF, senator Zequinha Marinho (Podemos-PA) asks that the accusation that he had committed the practice of “rachadinha” be sent to the court in 2013, when he was a federal deputy.

The senator states that he held elected positions without interruption, being a federal deputy from 2007 to 2015, deputy governor of Pará from 2015 to 2018, and senator from 2019. At the moment, the case against the politician is in the Federal Court of Brasília.

In 2023, the Superior Court of Justice analyzed the case and maintained the process in the first instance. At the time, the court understood that the Supreme Court ceased to be competent when the politician began to hold the position of lieutenant governor.

According to the court, the maintenance of the forum by function prerogative for Brazilian parliamentarians is restricted to cases in which the different mandates were exercised in a sequential and uninterrupted order, even if in different legislative houses.

Recalibration

The case’s rapporteur at the STF, Minister Gilmar Mendes, sent the senator’s request directly to the Plenary as he understood that the analysis has the potential to “change, in part, the guidance in force” since 2018, and that the trial that begins this Friday can “recalibrate the contours” of the special forum.

“Considering the dimension of the controversy discussed in this demand, which can recalibrate the contours of the forum by function prerogative, I understand that the Habeas Corpus judgment must be referred to the Plenary,” he said in an order dated March 13.

Discussions surrounding the scope of the forum by function prerogative have once again gained strength due to investigations into the murder of councilor Marielle Franco.

The case ended up in the Supreme Court after the Federal Police pointed out the participation of federal deputy Chiquinho Brazão in the murder. He would be one of the leaders. At the time of the crime, however, he was a councilor for the city of Rio de Janeiro.

Click here to read Gilmar’s order
HC 232.627