Gilmar Mendes votes to extend privileged forum to authorities

The minister of the STF (Supreme Federal Court) Gilmar Mendes voted this Friday (29.Mar.2024) for the Court to maintain the forum by function prerogative (the so-called privileged forum) even after the end of politicians’ mandates. The action is being voted on in the virtual plenary of the Supreme Court until April 8th. In this modality, the judges cast their votes and there is no debate.

The STF analyzes a habeas corpus filed by senator Zequinha Marinho (Podemos-PA). The Supreme Court ministers will decide whether the Court can judge an action against the congressman for the alleged practice of “crack” when he was still a federal deputy.

In the action, the congressman states that he successively held positions with function prerogative. Therefore, he says he should be judged by the STF and not by the 1st Instance. The Court’s current rule establishes that an action must be referred to the First Instance after the end of the mandate, unless the case is in the final stage of processing.

Gilmar Mendes is the rapporteur of the habeas corpus filed by the senator. In an order dated March 13 (full – PDF – 143 kB), he declared that the case could “recalibrate” the contours of the privileged forum and the question is “relevant and has a constitutional basis”.

In his vote (in full – PDF – 223 kB), inserted into the STF system in the early hours of this Friday (29th March), the Minister of the Court 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, impeachment, etc.)”.

Gilmar declared that his understanding differs from the Court’s current jurisprudence and, therefore, proposes “that the Plenary revisit the matter, in order to define that leaving the position only removes the private jurisdiction in cases of crimes committed before the investiture in the position or, even, those that have no relation to its exercise; As for functional crimes, the forum prerogative must persist even after the termination of functions”.

According to the judge, the discussion “does not alter the essence of the Court’s current jurisprudence“, but “advances to establish the special forum even after the cessation of functions”. Gilmar’s vote reads: “In practical terms, the approval of the proposal would stabilize the forum in the Courts when the requirements of contemporaneity and thematic relevance are present”.

The STF minister stated that, in the specific case of Zequinha Marinho, “the complaint itself indicates that the conduct attributed to the patient was carried out during the exercise of his mandate and due to his functions”. For this reason, Gilmar Mendes recognized the Supreme Court’s competence to prosecute and judge the action.

“I propose the immediate application of the new interpretation to ongoing processes, with the exception of all acts carried out by the STF and other Courts based on previous jurisprudence”, said the magistrate.