CRFB/88 - Art. 53, § 1º - Estatuto dos Congressistas - Parte II

Summary

The transcript discusses the concept of 'foro por prerrogativa de função' (forum by prerogative of function) in Brazil, clarifying misconceptions around the term 'foro privilegiado' (privileged forum). It explains that members of Congress (deputies and senators) are judged by the Supreme Federal Court (STF) for common crimes, but emphasizes that this is meant to prevent delays and ensure quicker trials. The speaker warns against calls to abolish this prerogative, suggesting instead that the focus should be on judicial reform to address inefficiencies, not on removing a crucial part of the legal system. The importance of judicial efficiency and timely legal proceedings is highlighted.

Takeaways

• 😀 The term 'foro privilegiado' is a misnomer in Brazilian law; the correct term is 'foro por prerrogativa de função' (forum by function privilege), and it doesn't imply a special privilege, but rather a procedural mechanism for the efficient handling of cases involving high-ranking public officials.
• 😀 Members of Congress (deputies and senators) are subject to judgment by the Supreme Federal Court (STF) for common crimes once they are officially sworn in, as per Article 53, Paragraph 1 of the Brazilian Constitution.
• 😀 The 'foro por prerrogativa de função' exists to ensure that high-ranking officials are judged by the STF to prevent prolonged legal battles and reduce the risk of impunity, which could arise from cases being dragged through lower judicial instances.
• 😀 The system aims to avoid the potential for extended legal proceedings across various judicial levels, which could result in delayed justice and public disillusionment with the legal process.
• 😀 Despite popular misconceptions, 'foro privilegiado' is not a form of immunity; it's a legal framework meant to ensure more timely and efficient judicial processes for those in positions of significant authority.
• 😀 The article warns against public calls to abolish 'foro privilegiado,' emphasizing that such calls ignore the reasons behind this legal provision and could worsen feelings of impunity if removed.
• 😀 In the case of crimes of responsibility (not common crimes), the respective legislative houses (Chamber of Deputies or Senate) are responsible for the judgment, not the STF.
• 😀 The script discusses the Mensalão case as an example where the STF's jurisdiction over congressional members' common crimes helped ensure a timely resolution, avoiding lengthy delays in the judicial process.
• 😀 The importance of the STF's role in dealing with cases involving congress members lies in the need to have such cases addressed quickly due to the significant public trust vested in these officials.
• 😀 A key point discussed is the possibility that if a congress member resigns while being investigated or prosecuted for a crime, the STF retains jurisdiction if the resignation is seen as an attempt to evade justice, maintaining the integrity of the judicial process.

Q & A

What is the key difference between 'foro privilegiado' and 'foro por prerrogativa de função'?

'Foro privilegiado' is a term used incorrectly in the media and public perception to describe special legal treatment for certain individuals, particularly politicians. In reality, the correct term is 'foro por prerrogativa de função,' which refers to the legal provision that grants certain authorities, such as senators and federal deputies, the right to be judged by the Supreme Federal Court (STF) in the case of common crimes, not because of privilege but to ensure quicker resolution of cases involving important public figures.

Why is it important for a representative, such as a federal deputy or senator, to be judged by the STF in the case of a common crime?

The importance lies in avoiding the eternalization of the judicial process. By being judged by the STF, the case is handled quickly and effectively, preventing delays that could arise from a lengthy judicial process across various lower courts and tribunals, thus reducing the perception of impunity in society.

What does the Constitution say about the legal jurisdiction of federal deputies and senators?

According to Article 53, Paragraph 1 of the Brazilian Constitution, federal deputies and senators are subject to judgment by the Supreme Federal Court (STF) starting from the moment they are officially sworn in and hold their diplomatic mandate. This rule only applies to common crimes, while crimes of responsibility are handled by the respective legislative houses.

What happens if a federal deputy or senator commits a crime of responsibility?

In the case of a crime of responsibility, the respective legislative house—the Chamber of Deputies for federal deputies and the Senate for senators—takes on the responsibility of judgment, not the Supreme Federal Court.

Can a federal deputy or senator be tried by the STF even after they renounce their mandate?

Yes, even if a federal deputy or senator renounces their mandate, the jurisdiction of the STF remains intact if it is evident that the resignation was used as a tactic to escape the STF's jurisdiction and transfer the case to lower courts. The STF does not allow such maneuvers.

Why is the concept of 'foro por prerrogativa de função' sometimes criticized in Brazilian society?

It is often mistakenly referred to as 'foro privilegiado' in the media, leading to confusion and a perception of unfair legal treatment for politicians. Critics argue that it creates a sense of impunity for public figures, although the intention is to ensure quick and effective legal proceedings for important authorities.

What was the issue with the judgment of the Mensalão case?

The Mensalão case, involving numerous federal deputies, highlighted the importance of having the STF handle such cases directly. Without 'foro por prerrogativa de função,' the case could have been delayed by multiple levels of the judiciary, potentially prolonging the trial for decades. The swift action by the STF helped bring the case to a conclusion.

What would happen if the 'foro por prerrogativa de função' was removed from the Constitution?

If the provision were removed, it is likely that high-ranking officials, such as federal deputies and senators, would be judged in lower courts, increasing the length of legal proceedings and potentially leading to an even greater perception of impunity due to prolonged judicial delays.

What is the real issue with the judicial process in Brazil, according to the speaker?

The real problem lies not in the existence of 'foro por prerrogativa de função,' but in the inefficiency and delays of the judicial system as a whole. The speaker argues that the judicial system, including the STF, needs reform to speed up cases and reduce unnecessary delays, as seen in the prolonged judgment of cases like Mensalão.

What is the main takeaway regarding public demonstrations against 'foro privilegiado'?

The speaker urges caution in public demonstrations against 'foro privilegiado,' explaining that the term itself is a misunderstanding. Instead of calling for its removal, the speaker advocates for judicial reform to address inefficiencies and delays in the system, ensuring that cases are processed more efficiently while respecting constitutional provisions.