Privileged forum for debate in the STF

In 2017, Senator Álvaro Dias presented the Proposed Amendment to the Constitution (PEC) 333 in order to eliminate the privileged forum. It was approved unanimously in the committees and in the plenary of the Senate and was processed in all the committees of the Chamber, where it was also approved, never having been the subject for deliberation by the president of the Chamber, who locked it in his drawer, having exclusive competence to guide the vote.

In May 2018, the Federal Supreme Court (STF), when analyzing a point of order in Criminal Action 937, decided, in my opinion correctly, that the forum prerogative is only applicable during the exercise of the mandate and related to the functions specifically performed. The decision highlighted the practical dysfunctionality of the privileged forum regime due to the successive changes in the positions held by the accused.

Furthermore, with great propriety, the negative aspects of the movement of the STF machine to judge the retail of specific criminal cases were highlighted, which would represent a contributing factor to further congesting the court, to the detriment of its constitutionally defined missions, of be the guardian of the legal order and permanent provider of legal security.

Four years after the decision, there was a substantial reduction, of around 80%, in the collection of investigations and criminal actions, as shown by data from the STF portal. Before 12/31/2017 there were 432 investigations and 95 criminal actions. On 8/1/2018, after the decision, the numbers dropped to 255 and 58, respectively – immediately, 40%. In 2022 there were 68 investigations and 21 criminal actions (80% reduction compared to the period before the ruling on the point of order).

This means that the decision taken in 2018 brought the STF much better conditions to assess direct actions of unconstitutionality, actions for non-compliance with fundamental precepts, in addition to extraordinary resources due to violations of the Constitution, even though more than 80% of decisions in 2023 have have been monocratic, which is not ideal when it comes to a court where collegiality is obviously expected as a rule.

When any authority is judged in a privileged forum by the STF, the double degree of jurisdiction is eliminated and the constitutional principle of equality is called into question. In the Old Republic, Brazil needed institutes of this nature, but today magistrates are selected with extreme rigor through public examinations, in a serious, republican and technical manner, and the judiciary is an independent and vigorous institution.

It is not reasonable to take away the judgment competence of a state or federal magistrate, recruited on a meritocratic basis in a competition of tests and qualifications, to consider accusations made against a former parliamentarian, for example, who does not even retain his mandate.

The hypothesis of eliminating the forum of parliamentarians with a mandate is already being concretely discussed, and it seems like a real step backwards to extend the privileged forum for those who no longer hold their respective positions. Especially since the STF’s own understanding in the opposite direction was established less than six years ago, formed by the majority of the same ministers who are part of the court today.

Undoubtedly, Law is a science of an interpretative nature and jurisprudential precedents are subject to review. But, at the same time, the STF has the mission of offering society the legal security inherent to the last judicial step. And note: the issue was considered less than six years ago by the court without any new element having emerged in the social dynamics. No new facts support this reinterpretation.

For example: a profound topic such as same-sex unions was the subject of discussion in that court, which ruled negatively, and was resumed years later, due to a behavioral change in society, which required a reinterpretation of the topic by the Supreme Court of the country. In the end , in 2011, the Court recognized this right, as the previous decision had become old and required interpretative review, given the material fatigue.

But what fatigue would the interpretation of the decision taken in 2018 have suffered, which generated a substantial reduction in the collection and, therefore, moves towards the democratization of the distribution of justice and the prevalence of republican canons?

In my opinion, the privileged forum is a true excrescence, which should be reduced to very few cases. It should not be broad, it cannot cover superlative numbers like we have in Brazil (almost 54 thousand people), especially because the STF was not designed to instruct and prosecute criminal actions in exorbitant volumes, with such processes doomed to prescription, a source of impunity, as recently warned the Organization for Economic Co-operation and Development (OECD) in its fourth report relating to the implementation of its anti-bribery convention.

Based on the evidence that the restriction proved to be correct, with a reduction in the procedural collection, the expansion of the privileged forum by the STF for former representatives, although it can be legally justified (almost everything can), does not appear to be advisable in the face of relatively recent interpretation in the opposite direction by the court itself. In the name of efficiency, coherence, legal certainty and the prevalence of public interest.

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ATTORNEY OF JUSTICE AT MPSP, DOCTOR IN LAW FROM USP, WRITER, TEACHER, SPEAKER, IS THE IDEALIZER AND PRESIDENT OF THE INSTITUTE ‘I DO NOT ACCEPT CORRUPTION’