Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 84 CPP – By function prerogative.

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Art. 84. The Federal Supreme Court, the Superior Court of Justice, the Federal Regional Courts and State and Federal District Courts of Justice have jurisdiction over the prerogative of office, in relation to persons who must answer before them for common crimes and crimes of responsibility. (Wording provided by Law No. 10,628 , of December 24, 2002.)
§ 1 The special competence by prerogative of function, related to administrative acts of the agent, prevails even if the investigation or legal action is initiated after the end of the exercise of public service. (Included by  Law No. 10,628  , of December 24, 2002. ) (DECLARED UNCONSTITUTIONAL BY  ADIN No.  2797. )
§ 2 The action for impropriety, referred to in Law No. 8,429  , of June 2, 1992, will be filed before the competent court to prosecute and criminally judge the employee or authority in the event of prerogative of forum due to the exercise of function public, subject to the provisions of § 1. (Included by  Law No. 10,628  , of December 24, 2002. ) (DECLARED UNCONSTITUTIONAL BY  ADIN No.  2797. )

Present. Initial and final term of the special forum

Justification of the institute: Competence by function prerogative is not a privilege and goes beyond protecting the person of the accused. This prerogative aims to preserve the public administration from unfounded, frivolous, unproved, political, ideological accusations, since the accusation made against a holder of public office (with or without an elective mandate) affects, even indirectly, the administration itself. In courts, decisions are collective. In the collective, the ideology, the political tendency, dissolves. The different opinions tend to compensate each other. The error, the failure to evaluate the test, tends to be smaller, since it is assumed that more and more experienced judges are capable of making better decisions. Otherwise, courts would not have judges with longer careers in their composition, nor would they be collective bodies. And let it not be said that magistrates do not have ideologies, political tendencies, preconceived ideas. They have. Some more, some less. There is nothing objectionable about that. It’s normal. It’s expected. When it comes to magistrates, the problem is not those who have a little more or a little less. The problem is with those who have too many of them. It is therefore not a privilege. Being judged by the Superior Courts may, depending on the case, be worse for the accused than in the 1st instance, as there are fewer resources available. Competence by prerogative of function (” The problem is with those who have too many of them. It is therefore not a privilege. Being judged by the Superior Courts may, depending on the case, be worse for the accused than in the 1st instance, as there are fewer resources available. Competence by prerogative of function (” The problem is with those who have too many of them. It is therefore not a privilege. Being judged by the Superior Courts may, depending on the case, be worse for the accused than in the 1st instance, as there are fewer resources available. Competence by prerogative of function (“ratione funae ”) does not take into account the person of the accused, but the function that he exercises. She is not “ ratione personae ”. So much so that the prerogative is only valid while the person is exercising the function. 

Beginning and end of the special forum:  The right to the forum by function prerogative of the public servant begins with the possession. Upon inauguration, the nominee accepts the position and undertakes to serve the administration with commitment and dedication. The right to the special jurisdiction of the elected person begins with the diploma, a formal act with which the Electoral Court certifies the election by delivering the diploma, enabling the candidate so far to effectively exercise the mandate (Electoral Code, article 215). There are those in office who are not elected or civil servants, but chosen and appointed freely, such as ministers and secretaries of state. In this case, the right to the special forum counts, as in the case of public servants, from the time of possession. The extinction of the right occurs with the end of the mandate or the exercise of public office. It is important to make it clear: no matter when the crime occurred (before or during the inauguration), it does not matter when the criminal proceedings began (before or during the inauguration), during the course of the mandate, the process must be processed before the special forum, since competence is by function prerogative. The process may or may not end in the special forum. If the mandate or the exercise of the position ends before the process, the records will be sent to the competent jurisdiction, since, with the end of the mandate/position, competency is extinguished by prerogative of function. There is no extension of competence with the end of the exercise of the office or mandate.

Current rule:  The right to the forum by function prerogative only exists as long as there is effective exercise of the function. It is the necessary actuality of the function. At the end of possession, the records must be sent to the competent judge so that the process can be continued. All acts performed in the special forum are valid and do not need to be redone or ratified by the judge who receives the records.

Contemporary rule: STF Precedent 394  ,  canceled when  Inquiry 687 was judged , contained the contemporary rule. This was the wording: “If the crime is committed during the functional exercise, special competence prevails due to the prerogative of the function, even if the investigation or criminal action is initiated after the cessation of that exercise.” As can be seen, this summary, providing for the commission of the crime contemporaneous with the exercise of the function, ensured the perpetuation of competence by the prerogative of function.

Unconstitutionality of paragraphs 1 and  2 :  Paragraphs 1 and  2  of Article 84, added by  Law No. 10,628 ,  of December 24, 2002 , were an attempt to revive the late  Precedent 394 of the STF . Paragraph 1 stipulated  that the special competence prevailed even if the investigation or legal action was initiated after the end of the exercise of the public function. In other words, the public function ceased and the process persisted in the special forum. Already paragraph 2 the established that the action for impropriety referred to in Law No. 8,429, of June 2, 1992, would be filed before the competent court to prosecute and criminally prosecute the official or authority in the event of prerogative of forum due to the exercise of public function, subject to the provisions of § 1 . That is, it continued in the special forum, even after the end of the mandate. That paragraph 2 contained it  as a rule at best anomalous, since it brought a civil action to criminal jurisdiction. Renato Brasileiro de Lima, in a comment on article 84, authoritatively considers that, “with an eye above all on the sanctions provided for in the Law of Administrative Improbity (Law no . 8429/92, art. 12), the ordinary legislator expanded the hypotheses of competence by prerogative of function, extending them to the civil action of administrative improbity, of a civil nature. We say that there was an expansion of the hypotheses of competence by function prerogative, since this prerogative forum has always been restricted to criminal proceedings. Competence by function prerogative has always been limited to criminal actions in which the persons referenced in the Federal and State constitutions appear as accused. Therefore, it does not cover class actions, public civil actions, precautionary actions, ordinary actions, declaratory actions and other civil actions filed against these authorities, except for the case of a writ of mandamus, which has an express constitutional provision. (…) The Federal Supreme Court, who never admitted that the National Congress could change its original competences through ordinary legislation, was called upon to consider the issue once more. It was concluded that the ordinary legislator could not intend to impose, as the immediate objective of Law n.10.628  /02, authentic interpretation of the Constitution, usurping the jurisdiction of the Federal Supreme Court” (Lima, Renato Brasileiro.  Code of Criminal Procedure Commented . 2nd. Ed. Editora Juspodivm: 2017).

Example:  To clarify how competence by function prerogative works, let’s assume that Carlos, who is being prosecuted for personal injuries in the city of Guaíba, Rio Grande do Sul, is graduated by the Electoral Justice as mayor of that city. Its process is sent to the Court of Justice of the State of Rio Grande do Sul, where it resumes its march from the phase in which it was interrupted. If, at the end of Carlos’ term, the process has not ended, he will be transferred to Guaíba, where he will continue. All procedural acts practiced before the TJRS will be used, regardless of ratification. In this example, the process was in progress at the time of graduation; however, if it were not, it could start before the TJRS, even the crime having occurred before the diploma.

Investigations and jurisdiction by prerogative of function:  Still using the example of Carlos, mayor of Guaíba: if news of crimes committed by him before or after diplomat reaches the Police Station, the police chief is prohibited from investigating. He must bring the news to the attention of the TJRS. It will be up to the TJRS to decide whether there are sufficient evidentiary elements to initiate investigations. If they exist, it will be up to the police authority to carry out the investigations, but under the supervision of the TJRS.

Court proceedings:  See comments to Law n. 8.038/1990, which institutes procedural norms related to the procedure before the courts, in the title  The law applicable to criminal actions of original jurisdiction (in notes to this device).

Doctrine

Eloísa Machado de Almeida:  STF decision on forum leaves endless list of doubts  The constitutionalists.

Fabio Bittencourt da Rosa.  Forum privilege: summary or constitutional amendment?  Living Space.

Guilherme Nucci:  Criminal procedural inequalities in Brazil . William Nucci.

Jorge Octávio Lavocat Galvão Three arguments for maintaining the forum by function prerogative . Conjure 

Rômulo de Andrade Moreira:  Who investigates who has prerogative of function?  jus.com.br.  The STF understands that its competence to prosecute authorities with forum prerogative includes the investigation phase. Once the participation of these authorities has been identified, the records must be immediately sent to the Court. 

Rômulo de Andrade Moreira:  The Supervised Criminal Investigation: the STJ decides against the understanding of the STF . jusbrasil.com.br.As decided by the Superior Court of Justice, the initiation of criminal investigation procedures by the Public Prosecutor’s Office, related to a public agent with jurisdiction by function prerogative, does not depend on prior authorization from the respective Court. The understanding was adopted by the Fifth Panel, which accepted an appeal by the Public Ministry of Rio Grande do Norte against a second instance decision that had considered judicial authorization necessary to initiate an investigation.

Vladimir Aras: The rise and fall of the privileged forum . Blogdovladimir. 

Vladimir Aras: The Special Forum for Public Prosecutors . Blogdovladimir. 

Vladimir Passos de Freitas. Appointment to grant privileged jurisdiction to a defendant is an administrative act void . Conjure

Vladimir Aras: Obtaining special jurisdiction and administrative impropriety . jus.com.br. 

Jurisprudence

Judgment of admissibility of exception of the opposite truth in the face of authority that has prerogative of forum:  The exception of the opposite truth in face of authority that has prerogative of forum can be inadmissible by the judgment of the criminal action of origin if verified the absence of the admissibility requirements for the processing of said incident ( Rcl 7.391-MT, Reporting Min. Laurita Vaz, judged on 6/19/2013 – Newsletter No. 0522 ). 

Subpoena of authority to render statements:  The authorities with prerogative of forum provided for in art. 221 of the CPP, when they are investigated in the police investigation or accused in the criminal action, they do not have the right to be questioned in a place, day and time previously agreed with the police authority or with the judge ( HC 250.970-SP, Rel . Justice Jorge Mussi, judged on 9/23/2014 – Newsletter No. 547 ).

If there is a tie in the vote regarding the receipt of the complaint, it is resolved by rejecting it:  Due to the lack of a regimental rule, the tie in the vote regarding the admissibility of part of the complaint is resolved by rejecting the accusatory initial, as it is more favorable to the accused ( Inq 3.670/RR, rel. min. Gilmar Mendes, judged on 9/23/2014, judgment published in the DJE of 12/10/2014 – Newsletter 760, Second Panel).

Receipt of a complaint by an incompetent authority and prescription:  When the authority that receives the complaint is incompetent due to the prerogative of the defendant’s forum, the receipt of the accusatory piece will be an absolutely null act and, therefore, will not interrupt the prescription (STJ, APn 295- RR, Justice Jorge Mussi, judged on 12/17/2014, DJe 2/12/2015 – Bulletin 555).

Use of elements declared useless by the Federal Supreme Court due to violation of the prerogative of the forum leads to the archiving of the police investigation:  The use of elements declared useless by the Federal Supreme Court (STF) to be used against the investigated person, taking into account jurisdictional prerogative, leads to the shelving of the police investigation ( Inq  3.552 QO/RS, rel. min. Marco Aurélio, judged on 12/16/2014, judgment published in the DJE of 2/25/2015 – Newsletter 772, First Panel).

Validity of procedural acts performed before a supervening cause of change of competence:  In the event that, after the criminal action has been initiated before a certain court, there is a change of competence due to the defendant’s investiture in a position that attracts jurisdiction due to the prerogative of function, they will be valid the procedural acts – including the receipt of the complaint – carried out before the supervening cause of change of competence, being unnecessary, within the scope of the new judgment, any ratification of these acts, which, if it occurs, will not need to follow the rules that should be observed for the practice, in original action, of acts equivalent to ratified acts (STJ, HC 238.129-TO, Rel. original Min. Maria Thereza de Assis Moura, Rel. for Judgment Min. Rogerio Schietti Cruz, judged on 9/16/2014, DJe 2/25/2015 – Bulletin 556 ).

The constitutional jurisdiction of the Jury Court prevails over the jurisdiction by prerogative of function:  The constitutional competence of the Jury Court prevails over the jurisdiction by prerogative of function established exclusively by the State Constitution (PSV 105, judgment on 4-8-2015, entry published in the DJE of 17-4-2015 – Bulletin 780, Plenary).

Evidence of involvement of a privileged forum holder during instruction does not result in violation of the STF ‘s  competence 21,419 AgR, rel. Min. Teori Zavascki, judgment on 7-10-2015, judgment published in the DJE of 5-11-2015  – Bulletin 802, Plenary).

When acts performed by the declining judgment do not need to be renewed by the declined judgment:  The acts performed in the declining judgment, if competent when they were, do not require ratification or renewal in the declined judgment ( AP 971, rel. min. Edson Fachin, judgment on 28-6 -2016, DJE of 10-11-2016  – Bulletin 832, First Panel). 

The loss of prerogative of forum in the STF does not remove the competence of the Court to assess violation of its own decision  : decision ( Rcl 20,132 AgR-second, original rel. min. Teori Zavascki, red. p/ o ac. min. Gilmar Mendes, judgment on 2-23-2016, DJE of 4-28-2016 – Bulletin 815, Second  Panel ).

Delegation of instructive acts in criminal proceedings with original jurisdiction of a higher court is appropriate:  It is appropriate to delegate instructive acts to be performed by judges of criminal courts in the criminal proceedings with original jurisdiction of a higher court ( HC 131.164, rel. Min. Edson Fachin, judgment on 24-5-2016, DJE of 14-9-2016  – Bulletin 827, First Panel).

The alteration of competence due to a subsequent diploma does not invalidate the acts regularly performed:  The alteration of the initial competence due to a subsequent diploma of the defendant does not invalidate the acts regularly performed, and the deed must continue from the stage in which it is found ( AP 905 QO, rel. min. Roberto Barroso, judgment on 2/23/2016, DJE of 3/22/2016  – Bulletin 815, First Panel).

Dismemberment of the criminal action and new complaint:  After the dismemberment of the criminal action regarding the defendant whose complaint was not received at the higher court, it is possible to file a new complaint of different content before the competent court ( HC 137.637, rel. min. Luiz Fux , DJE of 25-4-2018 ).

The special jurisdiction does not extend to actions of administrative impropriety:  The special jurisdiction by function prerogative provided for in the CF in relation to common criminal offenses does not extend to actions of administrative improbity, of a civil nature ( Pet 3.240 AgR, rel. p/ o ac. min. Roberto Barroso, DJE of 22-8-2018 ).

Rite of Law 8.038/1990. There is no space for the production of evidence between the complaint and the admissibility judgment:  In the rite of Law 8.038/1990, there is no space, between the offering of the complaint and the admissibility judgment to be rendered by the Court, for probative delays ( Inq 4.506 and Inq 4,506 AgR-second, 2018, rel. for ac. min. Roberto Barroso and rel. min. Marco Aurélio, respectively ).

Competence to prosecute and judge members of the MPU:  Members of the Public Ministry of the Union (MPU) must be prosecuted and judged in the court before which they acted at the time of the facts ( Pet 7.063, rel. p/ o ac. min. Ricardo Lewandowski, DJE of 6-2-2018 ).

Criminal action against the governor and unnecessary action by the Legislative Assembly:  There is no need for prior authorization from the Legislative Assembly to receive a denouncement or complaint and to file a criminal action against the state governor for a common crime, with the Superior Court of Justice (STJ) act of receipt or in the course of the process, provide, in a reasoned manner, for the application of criminal precautionary measures, including removal from office ( ADI 5.540, rel. min. Edson Fachin, DJE of 3-28-2019 ).

Proceedings before the STF and due diligence after questioning witnesses:  The phase provided for in art. 10 of Law 8.038/1990 is intended to carry out measures whose indispensability is due to a fact that occurred in the course of the criminal investigation ( AP 996, rel. min. Edson Fachin, DJE of 2-8-2019 ).

Jurisprudence – Prerogative of function and dismemberment

 The dismemberment of investigations or criminal actions within the jurisdiction of the STF should be a general rule, exceptions allowed : related that the separate judgment may cause significant damage to the judicial provision ( Inq 3.515 AgR/SP, rel. min. Marco Aurélio, judged on 2/13/2014, judgment published in the DJE of 3/14/2014  – Newsletter 735, Plenary ).

Breakdown of the inquiry. Forum by prerogative of function. Absence of potential and relevant damage:  Absent potential and relevant damage that justifies the gathering of facts, it is necessary to dismember the investigation in relation to all those investigated who do not hold jurisdiction due to prerogative of function, so that the investigation continues before the Supreme Court only in relation to the one who has it ( Inq 4.130 QO, rel. Dias Toffoli, judgment on 9/23/2015, judgment published in the DJE of 2/3/2016 – Newsletter 800, Plenary).

The competence of the STF can be extended when the defendant no longer holds the attractive position of that competence and, on the other hand, the competence of the ordinary instance is not extended when the defendant comes to hold a position that holds the forum by prerogative of function: The competence of  the Federal Supreme Court (STF) may be extended to judge criminally holder of jurisdiction by prerogative of function, in the event that the defendant ceases to hold the attractive position of that competence during the judgment in that Court. However, the same does not occur in the opposite situation, that is, the jurisdiction of the ordinary instance is not extended when, in the course of the trial initiated there, the defendant comes to hold a position holding the forum by prerogative of function before the STF, unless it becomes characterized situation of fraud or manipulation (AP 634 QO/DF, rel. min. Roberto Barroso, judged on 6-2-2014, judgment published in the DJE of 30-10-2014  – Bulletin 734, Plenary).

Jurisprudence – Prerogative of function and the legislature

Competence to decree the loss of mandate in case of final criminal conviction rests with the Legislative House:  The controversy within the scope of the Supreme Court regarding the competence to decree the loss of mandate in case of final criminal conviction must follow the guidance in sense of attributing it to the Legislative House to which the condemned parliamentarian belongs, in accordance with the intelligence of art. 55, § 2, of the Federal Constitution ( AP 563/SP, rel. Min. Teori Zavascki, judged on 10/21/2014, judgment published in the DJE of 11/28/2014  – Bulletin 764, Second Panel).

Authorization from the City Council for criminal action is not required if the accused no longer holds the office of mayor : beginning of the process ( AP 595/SC, rel. Min. Luiz Fux, judged on 11-25-2014, judgment published in the DJE of 2-10-2015  – Newsletter 769, First Panel).

Relativity of the personal incoercibility of the congressmen:  The personal incoercibility of the congressmen (CF, art. 53, § 2º1) is a guarantee of a relative nature ( AC 4.036 MC-REF and AC 4.039 MC-REF, rel. min. Teori Zavascki, judgment on 25 – 11-2015, decision published in the DJE of 29-2-2016 and decision pending publication, respectively – Newsletter 809, Second Panel ).

The application of preventive detention is forbidden to congressmen:  It is not possible for congressmen, from the issuance of the diploma, to apply the preventive prison sentence provided for in article 312 of the Code of Criminal Procedure ( ADI 5.526, rel. p/ o ac. min. Alexandre de Moraes, DJE of 7-8-2018 ).

The judiciary is authorized to apply precautionary measures to parliamentarians:  The Judiciary has the power to impose on parliamentarians, by its own authority, the precautionary measures referred to in article 319 of the CPP (ADI 5.526 , rel. p/ o ac. min. Alexandre de Moraes, DJE of 7-8-2018 ).

Consideration by the congress of judicially applied injunction:  Art. 53, § 2, of the CF applies whenever the precautionary measures applied make it impossible, directly or indirectly, the full and regular exercise of the parliamentary mandate ( ADI 5.526, rel. p/ o ac. min. Alexandre de Moraes, DJE of 7-8 -2018 ).

Connection, dismemberment of the action, search and seizure at the home of a federal congressman under the pretext that the warrant refers to another person:  individualized from entities endowed with probative capacity in the domicile of a federal parliamentarian investigated before the STF, under the pretext that the warrant refers exclusively to another person, who does not hold jurisdiction by prerogative of function, and criminally investigated for facts related by salute or connection, after the dismemberment of the feat ( Rcl 24,473, rel. min. Dias Toffoli, DJE of 6-9-2018 ).

Jurisprudence – Prerogative of function and mayor

Competence to investigate alleged electoral crimes committed by mayors:  In investigations of alleged electoral crimes committed by mayors, the investigation cannot be supervised by a first degree electoral court, much less can the police authority direct the investigative diligences to investigate the mayor and indict him ( AP 933 QO, rel. Min. Dias Toffoli, judgment on 10/6/2015, judgment published in the DJE of 2/3/2016  – Bulletin 802, Second Panel).

Role prerogative. New mayoral order. Crime in a previous mandate:  There is no extension of jurisdiction by prerogative of function for a crime committed by a mayor in a previous mandate when the accused is elected for a new mandate of mayor after a four-year interregnum between the end of the first mandate and the beginning of the other one ( RE 1,185,838 AgR, rel. for the ac. min. Alexandre de Moraes, DJE of 8-8-2019 ).

Jurisprudence – Extension of jurisdiction

Criminal actions originating from the STF. Resignation of parliamentarian after the end of the criminal instruction. The competence of the Court remains:  In criminal actions originating from the Federal Supreme Court (STF), the eventual resignation of a parliamentarian from the elective office – after the end of the criminal investigation – does not entail the loss of competence of the Court to judge the process ( AP 606 QO / MG, rel. Min. Roberto Barroso, judged on 7/12/2014, judgment published in the DJE of 11/5/2014  – Newsletter 754, First Panel).

The loss of a parliamentary mandate implies a decline in the competence of the STF:  Except for the occurrence of exceptional situations, the loss of a parliamentary mandate, for any reason, implies a decline in the competence of the Federal Supreme Court ( AP 536 QO/MG, rel. min. Roberto Barroso, judged on 27-3-2014, judgment published in the DJE of 12-8-2014  – Newsletter 740, Plenary).

The resignation of a parliamentarian, after the end of the instruction, does not remove the competence of the Federal Supreme Court:  The resignation of a parliamentarian, after the end of the instruction, does not remove the competence of the Federal Supreme Court (STF) to process and judge the fact. However, in the event of a candidate not being re-elected to the subsequent legislature, this understanding does not apply, with jurisdiction falling to the lower court ( AP 568, rel. min. Roberto Barroso, judgment on 4/14/2015, judgment published in the DJE of 18-5-2015  – Newsletter 781, First Panel).

Restrictive proposal in Congress, statistics and crimes of responsibility

PEC 10/2013: The Proposal for Amendment to the Constitution 10/2013  is pending in the National Congress  . According to it, deputies, senators, ministers of State, governors, ministers of superior courts, judges, ambassadors, military commanders, members of federal regional courts, federal judges, members of the Public Ministry, Attorney General of the Republic and members of the Justice Councils and the Public Prosecutor’s Office. The only exceptions are the heads of the Three Powers of the Union (Executive, Legislative and Judiciary).

Which and how many authorities have jurisdiction in Brazil:  In 2017, the Federal Senate published a study entitled  “Foro, prerogativa e Privilege. Which and how many authorities have jurisdiction in Brazil? ”. The objective is to define which authorities have special jurisdiction in Brazil, what is the normative source for the prerogative in relation to each one of them, as well as how many people are effectively subject to this special jurisdiction regime. It’s a great source of information on the topic. There are 54,990 authorities with special jurisdiction, 38,431 by virtue of the CF and 16,559 by virtue of state constitutions.

Common and responsibility crimes:  Common crimes are all those that are not responsibility crimes. Therefore, military crimes, electoral crimes, under the jurisdiction of Common Justice (Federal and State), JECRIM and misdemeanors are included. See the subtitle Political Jurisdiction  of the title Jurisdiction, competence and natural judge , in comments to article 69. The so-called crime of responsibility is not exactly a crime, but an illicit act committed by a political agent. This is a violation of content or a political/administrative nature. Law  No. 1.079 /  50 takes care of crimes for which the president of the republic, ministers of state and the Federal Supreme Court are responsible, governors and state secretaries (see article  85 of the CF  on crimes for which the president is responsible). Decree  -Law No. 201/67  deals  with crimes committed by mayors and councilors.

Jurisprudence

Public agents are subject to both civil liability for acts of administrative impropriety and political-administrative liability for crimes of responsibility:  Political agents, with the exception of the President of the Republic, are subject to a double sanctioning regime, so that they are subject to both civil liability for acts of administrative impropriety in terms of political-administrative liability for crimes of responsibility ( Pet 3,240 AgR, rel. p/ o ac. min. Roberto Barroso, DJE of 8-22-2018 ).

Competence by prerogative of function in the STF

Jurisdiction of the STF and common crimes:  It is incumbent upon the Federal Supreme Court to originally prosecute and judge, in common criminal offenses, the President and Vice President of the Republic, members of the National Congress, its own ministers and the Attorney General of the Republic ( article 102, item I, letter “b” of CF ).

Jurisdiction of the STF, responsibility and common crimes:  It is incumbent upon the Federal Supreme Court to originally prosecute and judge, in common criminal offenses and crimes of responsibility, the Ministers of State and the commanders of the Navy, Army and Air Force, subject to the provisions of  article 52, I, of the CF , members of the superior courts and the Federal Court of Accounts and heads of permanent diplomatic missions ( article 102, item I, letter “c” of the CF ). The exception to  article 52, item I , means that the Federal Senate will be responsible for prosecuting and judging the crimes of ministers of State, commanders of the Navy, Army and Air Force in crimes related to those of the president and vice president of the Republic.

Crimes for which the President of the Republic is responsible:  Article  85 of the CF  lists the crimes for which the President of the Republic is responsible, that is, acts that violate the Federal Constitution, especially against:  I – the existence of the Union; II – the free exercise of the Legislative Power, the Judiciary Power, the Public Prosecutor’s Office and the constitutional powers of the units of the federation; III – the exercise of political, individual and social rights; IV – the internal security of the country; V – probity in administration; VI – the budget law; VII – compliance with laws and court decisions .

Process and judgment:  In accordance with  article 86 of the CF , once the accusation against the President of the Republic has been admitted by two thirds of the Chamber of Deputies, he will be submitted to trial before the Federal Supreme Court in common criminal offenses or before the Federal Senate in criminal crimes. of responsability. The president will be suspended from his duties:  I – in common criminal offenses, if the complaint or criminal complaint is received by the Federal Supreme Court; II – in crimes of responsibility, after the initiation of the process by the Federal Senate . During his mandate, the President of the Republic cannot be held responsible for acts outside the exercise of his functions. Law  No. 1079  , of April 10, 1950, which regulates the process and judgment of crimes of responsibility, says in its article 2 that  the crimes defined in this law, even when simply attempted, are liable to the penalty of loss of office, with disqualification of up to five years for the exercise of any function public, imposed by the Federal Senate in proceedings against the President of the Republic, Ministers of State and the Federal Supreme Court and Attorney General of the Republic.

STF, deputies, senators, immunities, flagrante denunciations:  According to the  CF, in its article 53, paragraph 1 , deputies  and senators are inviolable, civilly and criminally, for any of their opinions, words and votes. The deputies and senators, from the issuance of the diploma, will be submitted to judgment before the Federal Supreme Court . However, it was decided in  Criminal Action No. 937  that  “the jurisdiction by prerogative of function applies only to crimes committed during the exercise of the position and related to the functions performed”, that is, they only respond to proceedings before the STF if the the offense is committed during the term of office (not before) and is related to the function. Under the terms of  Precedent 245, “parliamentary immunity does not extend to the defendant without this prerogative”. Deputies and senators cannot be arrested except in flagrante delicto of a non-bailable crime. In that case, the records will be sent within 24 hours to the respective house so that, by the vote of the majority of its members, it decides on the arrest ( article 53, paragraph 2 of  the CF ). Upon receipt of the complaint against the parliamentarian for a crime that occurred after the graduation, the STF will inform the respective house, which, on the initiative of the political party represented in it and by the vote of the majority of its members, may, until the final decision, stop the progress of the action  (Article 53, paragraph 3 of  the CF). The request for suspension will be considered by the respective house within a non-extendable period of 45 days from its receipt by the Board of Directors. Suspension of the process suspends the prescription for the duration of the mandate ( article 53, paragraphs 4 and  5 of  the FC ).

Congressmen and senators. Special jurisdiction only for crimes committed during the exercise of office:  At the Federal Supreme Court, a matter of order was ruled on in  Criminal Action No.  937 relating to restrictions on forum hypotheses by prerogative of function (valid only for senators and federal deputies). The theses were approved in the sense that the jurisdiction should apply only to crimes committed during the exercise of the position, and should be related to the function performed: “(i) the jurisdiction by prerogative of function applies only to crimes committed during the exercise of the position and related to the functions performed; and (ii) after the end of the procedural instruction, with the publication of the subpoena order for the presentation of final allegations, the competence to prosecute and adjudicate criminal actions will no longer be affected due to the public official taking up or leaving office occupied, whatever the reason. Here is the  vote of Minister Roberto Barroso . And here the vote of Minister Gilmar Mendes .

Court proceedings:  See comments to Law n. 8.038/1990, which institutes procedural norms related to the procedure before the courts, in the title  The law applicable to criminal actions of original jurisdiction (in notes to this device).

Jurisprudence

Constitutionality of the competence of the STF panels to judge investigations and criminal actions originating against federal deputies, senators and ministers of State:It is constitutional for the Panels of the Federal Supreme Court (STF) to judge investigations and criminal actions originating against federal deputies, senators and ministers of State. According to this rule, the definition of the rules of operation of the jurisdictional bodies of the courts constitutes an internal corporis matter, of exclusive attribution of the Judiciary Power, not being subject to invalidation when the violation of any fundamental right or guarantee is not demonstrated. From this perspective, the Internal Regulations even make it possible to send the process from the Panels to the Plenary, by decision of the Rapporteur or of the Panel itself, when the constitutional or legal issue decided upon is considered relevant, or when there is disagreement between the Panels on the matter discussed ( ADI 5,175, rel. min. Gilmar Mendes, DJE of 8-6-2020).

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Crimes against the STF and its competence to investigate and arrest

The Internal Regulations of the STF: Article 43 of the Internal Regulations of the STF, which has the force of law, provides that if a criminal offense occurs at its headquarters or premises, the President must initiate an investigation. The norm has its raison d’être. Allowing the police or the public prosecutor to enter the headquarters of the STF, search cabinets, drawers, shelves, the intranet network, where messages – some confidential – go in and out, would represent a violation of the independence of the Judiciary. If, from the south of Rio Grande do Sul, a distraught member of the National Congress directs a long-distance missile to blow up the STF, one wonders: Can it be investigated by the President of the STF? Well, if the missile explodes in the STF and its dependencies and headquarters go up in the air, then the answer is, obviously, the President of the STF can investigate. The legal grounds? These are: –In the event of an infringement of criminal law at the headquarters or dependency of the Court, the President will initiate an investigation, if it involves an authority or person subject to his jurisdiction ( article 43 of the RI of the STF) ; – Anyone who is committing a criminal offense is considered to be in flagrante delicto ( article 302, item I of the Code of Criminal Procedure ); – The crime is considered committed in the place where the action or omission occurred, in whole or in part, as well as where the result was produced or should have been produced ( Article 6 of the Penal Code) ; It is incumbent upon the Federal Supreme Court to originally prosecute and judge, in common criminal offences, the members of the National Congress (article 102, item I, letter “b” of the CF ). Article 230 of the RI, in its new wording, did not revoke, tacitly or expressly, article 43. Article 230 is inapplicable to crimes committed on the premises or headquarters of the STF. The norms contained therein deal with crimes in general committed by persons with privileged jurisdiction. Article 43 is a special rule in relation to article 230. If the crime is committed on the premises of the STF, article 43 applies and the competence to investigate rests with its President.

The inquiry can investigate third parties without jurisdiction due to prerogative of function: If this crazy act of threat and attack to the STF committed by the parliamentarian is undertaken jointly by a group of people from different States of the Federation and in different ways – including through the internet , with some nuclei centralizing operations –, the jurisdiction, by the rules of connection and continence ( article 76, items I and II , and article 77, item II, of the CPP ), belongs to the STF. The jurisdiction of the STF will cover all these people. These are the words of Precedent 704 of the STF :It does not violate the guarantees of the natural judge, full defense and due process of law to attract salute or connection of the co-defendant’s case to the forum due to the prerogative of function of one of the defendants . The law confirms: competence is determined by connection if, when two or more offenses occur, they have been committed at the same time by several people together, or by several people in competition, although the time and place differ (article 76 of the CPP , item I of the CPP) . The inquiry that is initiated by order of the President of the STF may involve an authority or person subject to its jurisdiction(Article 42 of the RI) and, also, by force of connection, other persons who do not hold jurisdiction by prerogative of function. It is worth mentioning that, in a joint attack on the STF, with the participation of a deputy, all other agents are subject to its jurisdiction. The forum by prerogative of function attracts to the competence of the STF all the others. There is a concurrence of people when more than one agent contributes to the crime, but each one practicing a different conduct from the other, obtaining or seeking, however, a single result.

Crime committed on the premises of the STF : The initiation of an inquiry is appropriate when there is a violation of the criminal law at the headquarters or dependence of the court(RI Article 42). A missile aimed and in the pre-launch stage towards the headquarters of the STF is a crime that is taking place at its headquarters or dependency. It will blow up STF dependencies. But what if the crimes committed are different? If they are crimes of threat and against the honor of ministers and their families, if they are lies launched on the internet against ministers, against their decisions, against the STF? Are these crimes consummated or attempted on the premises of the STF? Yes, because they, going unpunished, go in a crescent that can culminate in the implosion of the STF. Repeated lies will, little by little, become truth in the eyes and ears of the population. When the Internal Regulations of the STF were published (1980), there was no internet, nor social networks. Like this, when RI refers to crime on court premises, it should be understood as a crime against the security of the court, its ministers and its staff. Social networks can, through mass dissemination of messages, serve as an instrument of crime, of crime against democracy, institutions and the Powers of the Republic. In democracy, defending the dictatorship and the closure of the National Congress or the Supreme Court is a crime. If different people and groups provoke, through messages on the world wide web, turmoil in society, trying to destabilize the Judiciary, they may be committing, in competition, the most diverse crimes: In democracy, defending the dictatorship and the closing of the National Congress or the Supreme Court is a crime. If different people and groups provoke, through messages on the world wide web, turmoil in society, trying to destabilize the Judiciary, they may be committing, in competition, the most diverse crimes: In democracy, defending the dictatorship and the closing of the National Congress or the Supreme Court is a crime. If different people and groups provoke, through messages on the world wide web, turmoil in society, trying to destabilize the Judiciary, they may be committing, in competition, the most diverse crimes:maintain a grouping whose objective is to change the current regime or the rule of law, by violent means or with the use of serious threat (article 16); to incite the subversion of the political or social order (article 23); to publicize violent or illegal processes to change the political or social order (article 22); slander or defame the President of the Federal Supreme Court, imputing to them a fact defined as a crime or a fact that is offensive to their reputation (article 26). These are all offenses provided for in Law n. 7170/1983 . Not to initiate an investigation, under these circumstances, would constitute a violation of the duty of the President of the STF, since it is incumbent upon him, under the terms of article 13 of the Internal Regulations , toprotect the prerogatives of the Court.

No violation of the accusatory principle : The accusatory principle means that the prosecutor accuses, the defender defends and the judge judges. And that’s all. Prohibits the judge from having probative initiative in the process . In the process , only. In the current legal order, the investigation carried out by the judge outside the process does not violate the accusatory principle, as this principle focuses on the process, not on the investigation or the inquiry. No one is accused in an investigation, but investigated. Investigating with an accusatory principle is the same as playing football with basketball rules, that is, it is not knowing the rules of the game. The accusatory principle, as it is not included in the world of investigation, does not prevent authorities other than the police chief from investigating. The police authority is not the only State body that can carry out investigations. Others can too. When the President of the STF investigates a crime committed against the STF – or whoever he designates to preside over the inquiry – he will not, subsequently, pass judgment. If it did, there would be impediment ( article 252 of the CPP ), a cause of absolute nullity of the process. Nor will he accuse. Once the investigation is concluded, the records will be sent to the Public Prosecutor’s Office, which will then, on that occasion – repeat, on that occasion– may determine the archiving of the investigation or file a complaint.

It is not only the police that have the power to investigate : The sole paragraph of article 4 of the Code of Criminal Procedureit reserves the competence of other authorities that may carry out the inquiry with the purpose of providing evidence for the filing of criminal proceedings. Professor and Judge José Antônio Paganella Boschi lists: the IPM (Military Police Inquiry), provided for in the Code of Military Criminal Procedure; the Civil Inquiry of Law n. 7,347, of June 24, 1985, chaired by the Public Ministry; the CPIs (Parliamentary Committees of Inquiry), with constitutional grounds (Article 58 of the CF), dealt with in Law n. 1,579, of March 18, 1952; the inquiry provided for in Precedent 397 of the STF, which is the responsibility of the Chamber of Deputies and the Federal Senate in the event of a crime committed on their premises; the investigation presided over by the Court, as established by the Organic Law of the National Judiciary (Complementary Law No. 35, of March 14, 1979, article 33, sole paragraph), in case of involvement of a judge; the investigation presided over by the Attorney General of Justice provided for in the Organic Law of the Public Ministry (Law n. 8.625, of February 12, 1993, article 41, sole paragraph), in case of involvement of a member of the State Public Ministry; chaired by a Member of the Public Ministry designated by the Attorney General of the Republic, in the case of involvement of a member of the Federal Public Ministry (Article 18, sole paragraph, of Complementary Law No. 75/93) (BOSCHI, José Antônio Paganella. in case of involvement of a member of the State Public Ministry; chaired by a Member of the Public Ministry designated by the Attorney General of the Republic, in the case of involvement of a member of the Federal Public Ministry (Article 18, sole paragraph, of Complementary Law No. 75/93) (BOSCHI, José Antônio Paganella. in case of involvement of a member of the State Public Ministry; chaired by a Member of the Public Ministry designated by the Attorney General of the Republic, in the case of involvement of a member of the Federal Public Ministry (Article 18, sole paragraph, of Complementary Law No. 75/93) (BOSCHI, José Antônio Paganella.Criminal action: complaint, complaint and amendment . Rio de Janeiro, AIDE, 2002).

The legitimacy of the STF to arrest in flagrante delicto : If someone is committing a crime against ministers of the STF or against the STF itself, arrest in flagrante delicto is appropriate. Anyone who is committing a criminal offense is considered to be in flagrante delicto ( article 302, item I of the CPP ). If the offense is committed through a statement published on social networks, the agent is understood to be in flagrante delicto as long as the stay does not cease ( article 303 of the CPP ), that is, as long as the published message is on the internet. Arrest in flagrante delicto must be determined by the minister presiding over the investigation, as any member of the public can and the authorities must arrest anyone in flagrante delicto (article 301 of the CPP ).

Legality of the official initiation : When the commission of a crime comes to the knowledge of the police authority, the initiation of an investigation can (and should) be determined. When the Presidency of the Senate or the Chamber of Deputies becomes aware of the commission of a crime in the premises of the legislative house, the investigation can (and should) be determined ex officio. Even the Public Prosecutor’s Office, it has been admitted, can initiate investigations ex officio, even if there is no express legal provision authorizing it. The Internal Regulation of the STF, which has the force of law, expressly authorizes its President to initiate an ex-officio inquiry when a criminal offense occurs at the headquarters or dependency of the Court.

Legality of the delegation of the investigation : Crimes committed on the premises of the STF must be investigated by its President. As the President has multiple duties and occupations, RI authorizes him to delegate this assignment to another minister. The possibility of delegation without drawing lots, therefore, does not violate the principle of the natural judge, because crimes in the house involve administration, and administration is the responsibility of the President. What the President can do for himself, he can do by delegation.

Legality of the imposition of precautionary measures with reservation of jurisdiction : Since the President of the STF is a magistrate – as is the delegated minister – he has, in the current system, powers to determine precautionary measures. Article 3, letter “a” of the CPP, which prohibits the judge’s initiative in the investigation phase, is suspended by decision of Minister Luiz Fux in ADI 6,298. If the ADI is deemed unfounded, with recognition of the constitutionality of article 3, letter “a”, of the CPP, the investigations eventually carried out by the STF are not annulled, as they were validly carried out under the validity of the law that was in force . If article 3, letter “a” comes into effect, investigations that are in progress will persist under the presidency of their ministers, but new precautionary measures with reservation of jurisdiction must be requested by the president of the investigation to one of the panels of the STF, which must be done through regular distribution. The minister presiding over the inquiry will now exercise the role of investigator, and the reporting judge to whom the precautionary requests are distributed will be the guarantee judge. Both, in any future proceedings, are prevented from acting. As demonstrated, there is a legal arsenal available to defend the Federal Supreme Court and democracy. It works when handled by men with skill, determination and courage.

Doctrine

Aury Lopes Jr. and Alexandre Morais da Rosa:  Understand the judgment of the Supreme Court and the restriction of the prerogative of function . Conjure The criminal lawyer Aury Lopes and the magistrate Alexandre Morais da Rosa, in this exceptional article, make a very clear exposition of what was decided in AP 937, in the STF. Its conclusions are five: 1. The jurisdictional prerogative of federal deputies and senators only applies to crimes committed during the exercise of office, considering the beginning of the diploma date; 2. The prerogative only applies to crimes committed during the exercise of the office and “related to functions”, that is, propter officium. 3. There is more: once the instruction is closed, there will be perpetuatio jurisdictionis; 4. The new understanding will apply to all cases pending before the STF; 5. The decision affects only federal deputies and senators.

Alexandre de Moraes:  Choice of STF ministers needs more participation from all powers . Conjure

Alexandre de Moraes:  Fundamental relevance in choosing the member of the STF .  Conjure

Alexandre de Moraes:  Prerogative of jurisdiction and split of shares . Conjure

Alexandre de Moraes:  Control of Justice in bills, only in exceptions . Conjure

César Caputo Guimarães:  Can parliamentarians be punished for expressing an opinion? No. _ ffernandes.adv.br.

Gilmar Mendes:  Subversion of the Judiciary Hierarchy . Gilmar Mendes.

Pedro Canário:  “STF cannot create interpretive mechanisms and provide solutions outside the law” – interview with Nelson Jobim . waltersorrentino.com.br.

Alexandre de Moraes:  Supreme must decide on judicial supervision in criminal investigations .  Conjure

Vladimir Aras: The rise and fall of the privileged forum .  blogdovladimir. 

Doctrine – Federal Supreme Court

Alexandre de Moraes:  Choice of STF ministers needs more participation from all powers . Conjure

Alexandre de Moraes:  Control of Justice in bills, only in exceptions . Conjure

Alexandre de Moraes:  Fundamental relevance in choosing the member of the STF . Conjure

Aline Cardoso dos Santos :  The federal supreme court and the crisis of legitimacy regarding fundamental and social rights in Brazil: the effectiveness of fundamental rights in the fight against slave labor . repository.ul.pt. 2015.

Conrado Hübner Mendes:  STF, illusionist vanguard  The constitutionalists.

Dimitri Dimoulis and Soraya Lunardi:  The power of those who define the STF agenda  The constitutionalists.

Fábio Martins de Andrade :  Critical contributions on the current mode of operation of the Supreme Court .  Conjure

Fábio Bittencourt da Rosa :   Necessary limits to the power of the STF . Living Space.

Fernando Martines:  “STF is the safeguard of democracy and must be defended”, says Dias Toffoli .  Conjure

Israel Nonato:  When you get stuck, you have to push the Supreme  The constitutionalists.

Leonardo Isaac Yarochewsky:  The reviewer’s role is clear in the Internal Regulations of the STF .  Conjure

Maíra Fernandes:  Supreme selectivity  The constitutionalists.

Marcus Melo:  STF stress test is unprecedented  The constitutionalists.

Marcelo Casseb Continentino:  The problem of excessive doctrinal citations in the STF .  The constitutionalists.

Marcelo Semer:  It is possible to democratize appointments to the STF .  The constitutionalists.

Rodrigo de Oliveira Kaufmann:  Federal Supreme Court must seek political invisibility  The constitutionalists.

Oscar Vilhena Vieira:  From ‘Supremocracy’ to ‘Ministerocracy’  The constitutionalists.

Oscar Vilhena Vieira:  STF occupied empty space left by Congress  The constitutionalists.

Thais Lima:  The miseries of the Federal Supreme Court . The constitutionalists.

Jurisprudence

Criminal actions originating from the STF. Resignation of parliamentarian after the end of the criminal instruction. The competence of the Court remains:  In criminal actions originating from the Federal Supreme Court (STF), the eventual resignation of a parliamentarian from the elective office – after the end of the criminal investigation – does not entail the loss of competence of the Court to judge the process ( AP 606 QO / MG, rel. Min. Roberto Barroso, judged on 7/12/2014, judgment published in the DJE of 11/5/2014  – Newsletter 754, First Panel).

Inapplicability of art. 28 of the CPP in investigative procedures originally processed by the STJ:  If a member of the MPF, acting at the STJ, requests the shelving of the police investigation or any pieces of information that were originally processed by this Superior Court, the latter, even considering the reasons invoked to be unfounded, shall determine the requested archiving, without the possibility of sending it to the Attorney General of the Republic, not applying art. 28 of the CPP ( Inq 967-DF, Reporting Judge Humberto Martins, judged on 3/18/2015, DJe 3/30/2015 – Newsletter 558 ).

The resignation of a parliamentarian, after the end of the instruction, does not remove the competence of the Federal Supreme Court:  The resignation of a parliamentarian, after the end of the instruction, does not remove the competence of the Federal Supreme Court (STF) to process and judge the fact. However, in the event of a candidate not being re-elected to the subsequent legislature, this understanding does not apply, with jurisdiction falling to the lower court ( AP 568, rel. min. Roberto Barroso, judgment on 4/14/2015, judgment published in the DJE of 18-5-2015  – Newsletter 781, First Panel).

Jurisdiction of the Federal Supreme Court to prosecute and judge the regulatory grievance in which  the monocratic decision of a member of the Court is contested: no longer holds forum prerogative ( RHC 122.774, rel. Dias Toffoli, judgment on 5/19/2015, judgment published in the DJE of 6/11/2015  – Newsletter 786, First Panel).

The accused person has a  double deadline to present his answer in cases of original competence of the courts : Zavascki, rapporteur for Judge Gilmar Mendes, judgment on 9/1/2015, judgment published in the DJE of 3/31/2016 – Newsletter 797, Second Panel ).

Situation of flagrance and determination of precautionary arrest of a parliamentarian:  Present situation of flagrance and the requirements of art. 312 of the CPP, the precautionary arrest of a federal parliamentarian is appropriate ( AC 4.036 MC-REF  and AC 4.039 MC-REF,  rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and ruling pending publication, respectively  – Newsletter 809, Second Panel). 

Imprisonment of parliamentarian and criminal organization:  Art. 2, caput and § 1, of Law 12.850/20135, which provides for criminal organization, is capable of giving rise to the arrest of a parliamentarian under the terms of art. 53, § 2, of the Federal Constitution ( AC 4,036 MC-REF  and AC 4,039 MC-REF,  rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending of publication, respectively  – Bulletin 809, Second Panel).  

Imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the legislative house:  Once the factual and legal requirements have been fulfilled, the imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the respective legislative house ( AC 4.036 MC-REF  and AC 4.039 MC-REF,  rel. Min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively  – Newsletter 809, Second Panel).  

There is no double deadline for investigation in criminal actions originating in the STF in the electronic process:  The subsidiary application of art. 229, caput, of the Code of Civil Procedure (CPC/2015) in inquiries and criminal actions originating in progress at the Federal Supreme Court, in which the procedural acts of the parties are performed electronically ( Inq 3.980 QO, rel. min. Teori Zavascki , judgment on 6/7/2016, DJE of 6/30/2016  – Bulletin 829, Second Panel).

Supervenience of a new prison decree, which basically maintains the foundations of the previous precautionary custody. Jurisdiction of the STF: The eventual supervenience of a new prison decree, which basically maintains the foundations of the previous precautionary custody, does not limit the exercise of the competence of the Federal Supreme Court in the appreciation of habeas corpus filed against the first prison decree (HC 132.233, rel Min. Teori Zavascki, judgment on 4/26/2016, DJE of 5/18/2016 – Bulletin 823, Second Panel).

The precautionary removal of a federal deputy is possible : Exceptionally, the precautionary removal of a federal deputy, defendant in a criminal action for a common crime before the Federal Supreme Court (STF), from the exercise of the parliamentary mandate and the function of president of the Chamber of Deputies ( AC 4.070 REF, rel. min. Teori Zavascki, judgment on 5-5-2016, DJE of 10-21-2016  – Newsletter 824, Plenary).

The binding force of decisions issued by the STF does not affect future behavior of the patient:  The binding force of decisions issued by the STF within the scope of a given process does not reach conduct that may be imputed to the patient in the future ( HC 134.240, rel. min. Edson Fachin, trial on 6/28/2016, DJE of 9/15/2016  – Bulletin 832, First Panel).

Precautionary action judged by the STF that removed EC from the role of President of the Chamber of Deputies:  This is a historic decision given by Minister Teori Zavascki ( Min. Teori Zavazcki- Precautionary action 4.070 – STF ).

Precautionary measure of removal from the public functions of councilor: Precautionary measure of removal from the public functions of councilor and mayor. ADI no. 5,526/DF. municipal parliamentarians. No incidence. It is possible that the first-degree judge, with good reason, imposes precautionary measures to remove them from their legislative functions on municipal parliamentarians without the need for referral to the respective House for deliberation. It should be noted that the legal situation of the records remains sound, despite the judgment handed down by the Federal Supreme Court in the records of ADI 5.526-DF, which established the understanding that it is incumbent upon the Judiciary to impose, by its own authority, the precautionary measures to which Article 319 of the CPP refers to parliamentarians, however, it must be forwarded to the respective Legislative House to which the parliamentarian belongs for the purposes of the provisions of art. 53, § 2, of the Federal Constitution when the precautionary measure applied prevents, directly or indirectly, the regular exercise of the parliamentary mandate. The aforementioned article provides for formal immunity conferred on federal deputies and senators, being, therefore, a constitutional prerogative conferred on parliamentarians of the National Congress and, precisely because it is an exception rule, it must be interpreted restrictively. The Supreme Court, based on this parameter, has already supported, in previous judgments, an understanding in the sense that the relative personal inconsistency provided for in article 53, paragraph 2, of CF/88 is applicable, as expressly provided, to federal deputies and senators and, due to the principle of symmetry, to state deputies regardless of provisions in the respective state Constitutions, provisions, however, Newsletter no. 617 ).

Public agents are subject to both civil liability for acts of administrative impropriety and political-administrative liability for crimes of responsibility:  Political agents, with the exception of the President of the Republic, are subject to a double sanctioning regime, so that they are subject to both civil liability for acts of administrative impropriety in terms of political-administrative liability for crimes of responsibility ( Pet 3,240 AgR, rel. p/ o ac. min. Roberto Barroso, DJE of 8-22-2018 ).

Competence by prerogative of function in the STJ

Jurisdiction of the STJ and common crimes:  It is incumbent upon the Superior Court of Justice to originally prosecute and judge, in common crimes, the governors of the states and the Federal District ( article 105, item I, letter “a”, first part ).

Competence of the STJ, common and responsibility crimes:  It is incumbent upon the Superior Court of Justice to originally prosecute and judge, in common crimes and those of responsibility, the judges of the courts of Justice of the states and of the Federal District, the members of the audit courts of the states and the Federal District, the federal regional courts, the regional electoral and Labor courts, the councils or audit courts of the municipalities and the Public Prosecutor’s Office of the Union that officiate before courts (article 105, item I, letter “a”, second part ).

Court proceedings:  See comments to Law n. 8.038/1990, which institutes procedural norms related to the procedure before the courts, in the title  The law applicable to criminal actions of original jurisdiction (in notes to this device).

Doctrine

André Karam Trindade:  The size of the STJ and the institutionalization of defensive jurisprudence  Conjure In any case, one thing is certain: time and study make it possible to make better-founded decisions. And that is a good reason to ask ourselves whether we should insist on merely quantitative reforms. When will we really care about the quality of jurisdiction? Maybe it’s a good time to stop worrying about “problem solving” and think a little more about “solution problems”.

Jurisprudence

Criminal review and competence:  The judgment by the STF of HC filed against a decision handed down in a special appeal does not in itself remove the STJ’s competence to prosecute and judge a subsequent criminal review ( STJ, RvCr 2.877-PE, Rel. Min. Gurgel de Faria, judged on 2/25/2016, DJe 3/10/2016 – Newsletter n. 578 ).

Competence by function prerogative in the Court of Justice

Jurisdiction of the Courts of Justice:  It is incumbent upon the courts of Justice to judge state judges, as well as members of the Public Prosecutor’s Office, in common crimes and those of responsibility, subject to the competence of the Electoral Justice (article 96, item III of the CF ) . Mayors are also judged by the Court of Justice ( article 29, item X of the CF ). 

Municipal mayor and jurisdiction of the TRF:  “It is incumbent upon the Federal Court to prosecute and judge the municipal mayor for embezzlement of funds subject to accountability before a federal agency” –  Precedent 208 of the STJ .

Municipal mayor and competence of the TJ:  “It is incumbent upon the State Court to prosecute and judge the mayor for embezzlement of funds transferred and incorporated into municipal assets” –  STJ Precedent 209 .

Municipal mayor and original jurisdiction:  “The jurisdiction of the Court of Justice to try mayors is restricted to crimes within the jurisdiction of the state Common Justice; in other cases, the original jurisdiction will rest with the respective court of second degree” –  Precedent 702 of the STF .

Principle of symmetry:  Article 125 of the CF states that  the states will organize their justice, observing the principles established in this Constitution. Paragraph 1 The jurisdiction of the courts will be defined in the State Constitution, with the law on judicial organization being the initiative of the Court of Justice . As Renato Brasileiro de Lima teaches in comments to article 84 of the CPP, “according to the principle of symmetry or parallelism, provided for in art. 125,  main, of the Federal Constitution (‘observing the principles established in this Constitution’), and considering that states cannot legislate on criminal matters, or even procedural matters, reserved for the exclusive competence of the Union (CF, art. 22, I), state constitutions they can only attribute to their political agents the same prerogatives that the Federal Constitution grants to the corresponding authorities, except for crimes that are not subject to the jurisdiction of the state. In other words, article 125 of the Federal Constitution did not grant the state constitutions a blank letter to ensure the privilege to whoever they wanted, granting the Court of Justice powers that do not find a parallel in the Political Charter. (…) By virtue of the principle of symmetry, therefore, the hypotheses of differentiated jurisdiction are those exhaustively defined by the Federal Constitution, leaving to the discretion of the state constituent only its application in cases of correlation between the federal public offices thus contemplated and its correspondent in the state. Thus, if the Federal Constitution grants jurisdiction by function prerogative to the Vice President of the Republic and Ministers of State (CF, article 102, I, “b” and “c”), the State Constitution that assign forum prerogative to the vice-governor and secretary of state before the Court of Justice. We could even admit the provision of jurisdiction by function prerogative to the attorney general of the state when he holds the status of secretary of state, insofar as the Federal Constitution also grants the attorney general of the Union, as minister of state, Code of Criminal Procedure Commented . 2nd. Ed. Publisher Juspodivm: 2017). Next, Renato Brasileiro comments that some STF decisions have removed the principle of symmetry and given greater importance to the function, whether or not it is essential to the state. The right has been recognized for some categories without parallel at the federal level, including public defenders, state attorneys and police chiefs.

Court proceedings:  See comments to Law n. 8.038/1990, which institutes procedural norms related to the procedure before the courts, in the title  The law applicable to criminal actions of original jurisdiction (in notes to this device).

Doctrine

Vladimir Aras:  The Special Forum for Public Prosecutors .  blogdovladimir

Jurisprudence

Jurisdiction to prosecute and judge Public Prosecutors: It is incumbent upon the state courts of justice to prosecute and judge common crimes, not related to the position, in theory committed by Public Prosecutors ( CC 177.100-CE , Reporting Minister Joel Ilan Paciornik, Terceira Section, unanimously, judged on 09/08/2021, DJe 09/10/2021).

State Constitution forum by prerogative of function: The State Constitution cannot, at its discretion, extend the so-called forum by prerogative of function to those who are not covered by the federal legislator ( DI 2.553 , red. p/ o ac. min. Alexandre de Moraes, DJE of 17-8-2020).

Jurisdiction by prerogative of function in the Federal Regional Court

Jurisdiction of federal regional courts:  It is incumbent upon them to originally prosecute and judge federal judges in the area of ​​their jurisdiction, including those of the Military Justice and Labor Justice, in common and responsibility crimes, and members of the Federal Public Prosecutor’s Office, except the competence of the Electoral Justice ( article 108, I, letter “a” of the CF ).

The applicable law in criminal actions with original jurisdiction

Applicable law in criminal proceedings with original jurisdiction:  Law  No. 8038  , of May 28, 1990 , regulates criminal proceedings before the Superior Court of Justice and the Federal Supreme Court. Pursuant to  Article 1 of  Law 8658/93,  it is also applicable to criminal actions of original competence of the courts of Justice of the states and of the Federal District and of the federal regional courts. Pursuant to  Article 2 of  Law No.  8,038 /  1990 , the rapporteur is chosen according to the regulations. Instruction is governed by Law no . 8.038, by the Code of Criminal Procedure where applicable and by the Court’s Internal Regulations. The rapporteur has the attributions that procedural legislation confers on individual judges. Among other powers, it is incumbent upon the rapporteur to summon judges of criminal divisions from the courts of Justice or federal regional courts, as well as judges from criminal courts of state and federal courts for a period of six months, extendable for an equal period, up to the maximum of two years, for carrying out the interrogation and other acts of instruction at the seat of the court or at the place where the act is to be produced ( article 3 , item III). Once the complaint has been filed and after the defense has responded, it is the court that decides on whether or not to accept or reject the accusation, if the decision does not depend on other evidence. Once the denouncement has been received, the process continues in accordance with  Article 7 and  following .

Jurisprudence

Complaint made by the state MP. Need for ratification by the PGR for processing in the STJ:  It is not possible to process and judge in the STJ a complaint originally filed by the state Public Prosecutor’s Office in the state court, later forwarded to this superior court, if the exordial is not ratified by the Attorney General of the Republic or by one of the Deputy Attorneys General of the Republic (APn 689-BA, Reporting Minister Eliana Calmon, judged on 12/17/2012 – Bulletin No. 0511). 

Ratification of the complaint in the event of displacement of the deed due to supervening prerogative of jurisdiction of the accused: It is not necessary to ratify the complaint filed in state court of first degree in the event that, due to the supervening diplomation of the accused in the position of mayor, the case has been moved to the respective Court of Justice without the Attorney General of Justice having highlighted, after having seen the records, the occurrence of any illegality ( HC 202.701- AM, Reporting Minister Jorge Mussi, judged on 14/ 5/2013 – Newsletter No. 0522 ).  

Failure to summon the accused to comply with the steps provided for in art. 10 of Law 8.038/1990 does not generate nullity:  It does not generate procedural nullity – for alleged affront to the principle of due process of law or for curtailment of defense – the lack of subpoena of the accused to comply with the steps provided for in art. 10 of Law 8.038/1990 ( RHC 120.356/DF, rel. Min. Rosa Weber, judged on 4/1/2014, judgment published in the DJE of 10/30/2014  – Newsletter 741, First Panel).

If the prerogative of forum arises during the course of the proceedings, the case passes to the jurisdiction of the STF:  If the prerogative of forum arises after the sentence handed down by the lower court and the appeal judgment is pending, the case passes to the jurisdiction of the Federal Supreme Court (STF ) ( AP 563/SP, rel. Min. Teori Zavascki, judged on 10/21/2014, judgment published in the DJE of 11/28/2014  – Bulletin 764, Second Panel). 

It is the responsibility of the STF to decide on the dismemberment of an investigation procedure or criminal prosecution when one of the investigated has prerogative of jurisdiction before the Court  : of dismemberment of investigation procedure or criminal prosecution, when there are multiple suspects and one of them has prerogative of forum before the Court ( AP 871 QO/PR , AP 872 QO/PR, AP 873 QO/PR, AP 874 QO/PR, AP 875 QO/PR, AP 876 QO/PR, AP 877 QO/PR and AP 878 QO/PR,  rel. Min. Teori Zavascki, judged on 10-6-2014, judgments published in the DJE of 30-10-2014  – Newsletter 750, Second Panel). 

Powers of the rapporteur in an investigation against a magistrate:  The continuation of the criminal investigation in which there was evidence of the commission of a crime by a magistrate does not depend on the deliberation of the special body of the competent court, it being up to the rapporteur to whom the investigation was distributed to determine the steps he deems appropriate ( HC 208.657-MG, Reporting Minister Maria Thereza de Assis Moura, judged on 4/22/2014 – Newsletter No. 540 ). 

Lack of citation for prior defense and absence of nullity. Law n. 8.038/1990:  The lack of citation for prior defense – described in art. 7 of Law 8.038/1990 – when, at the time of the preliminary response – art. 4 of Law 8.038/1990 –, arguments have been presented regarding the merits of the criminal action ( RHC 122.806/AM, rel. Min. Cármen Lúcia, judged on 11/18/2014, judgment published in the DJE of 2/24/2015  – Newsletter 768, Second Panel).

The rite that must be applied to criminal actions originating in the STF and STJ is that of arts. 4th to 6th of Law 8.038/1990, and not that of arts. 396 et seq. of the CPP:  The procedure provided for in arts. 4th to 6th of Law 8.038/1990 is more beneficial than that provided for in arts. 396 and following of the Code of Criminal Procedure (CPP). It is that rite, therefore, that must be applied to criminal actions originating in the Federal Supreme Court (STF) and in the Superior Court of Justice ( HC 116.653/RJ, rel. min. Cármen Lúcia, judged on 2-18-2014, judgment published in the DJE of 4/11/2014  – Newsletter 736, Second Panel).

Infeasibility of merging the procedure of Law n. 8038/1990 with that of the CPP:  The merging of the special procedure of Law 8038/1990 with the common procedure of the CPP generates a hybridism (tertium genus) incompatible with the principle of legal reserve ( HC 116.653/RJ, rel. min. Cármen Lúcia , judged on 2/18/2014, judgment published in the DJE of 4/11/2014  – Newsletter 736, Second Panel).

Inapplicability of art. 28 of the CPP in investigative procedures originally processed by the STJ:  If a member of the MPF, acting at the STJ, requests the shelving of the police investigation or any pieces of information that were originally processed by this Superior Court, the latter, even considering the reasons invoked to be unfounded, shall determine the requested archiving, without the possibility of sending it to the Attorney General of the Republic, not applying art. 28 of the CPP ( Inq 967-DF, Reporting Judge Humberto Martins, judged on 3/18/2015, DJe 3/30/2015 – Newsletter 558 ).

Absence of the STF’s obligation to comply with any and all requests for the initiation of an investigation formulated by the Attorney General’s Office:  The ownership of the public criminal action and the attribution to request the archiving of the police investigation (CPP, art. 28) does not mean that any and all requests for initiation of an investigation formulated by the Attorney General’s Office must be unconditionally met by the Federal Supreme Court ( Inq 3.847 AgR, rel. min. Dias Toffoli, judgment on 4/7/2015, judgment published in the DJE of 8- 6-2015  – Bulletin 780, First Panel). 

Displacement of jurisdiction to the STF. Validity of the acts already performed:  In the event of a transfer of jurisdiction to the Federal Supreme Court (STF), the criminal action must continue in the state in which it is found, preserving the validity of the acts already performed in the previous instance ( AP 913 QO, rel. min. Dias Toffoli, judgment on 17-11-2015, judgment published in the DJE of 15-12-2015 – Bulletin 808, Second Panel). 

Jurisdiction of the Federal Supreme Court to prosecute and judge the regulatory grievance in which  the monocratic decision of a member of the Court is contested: no longer holds forum prerogative ( RHC 122.774, rel. Dias Toffoli, judgment on 5/19/2015, judgment published in the DJE of 6/11/2015  – Newsletter 786, First Panel). 

Proceedings of original competence of the Courts and exception of truth:  In the demands that follow the rite of proceedings of original competence of the Superior Courts (Law n. 8.038/1990), the exception of the truth presented within the period of prior defense is timely (art. 8 ), even though the accused has presented a preliminary defense (art. 4) ( STJ, HC 202.548-MG, Judge Reynaldo Soares da Fonseca, judged on 11/24/2015, DJe 12/1/2015 – Newsletter n. 574 ).

Complaint before diplomation and possibility of summary acquittal: Once  the complaint is received before the defendant has been certified as a Federal Deputy, the written defense is presented, the possibility of summary acquittal must be examined, according to the provisions of art. 397 of the Code of Criminal Procedure, even if the rite, since the records were sent to the Federal Supreme Court, becomes that of Law 8.038/1990 ( AP 933 QO, rel. min. Dias Toffoli, judgment on 10-6- 2015, judgment published in the DJE of 3-2-2016  – Bulletin 802, Second Panel).

The fortuitous capture of conversations held by an authority with jurisdictional prerogative without evidence does not justify the immediate referral of the records to the competent court to process said authority: During  telephone interception granted in the first degree of jurisdiction, the fortuitous capture of conversations maintained by an of forum does not impose, by itself, the immediate remittance of the records to the Court competent to prosecute and judge the said authority, without first assessing the suitability and sufficiency of the data collected to establish the conviction about the possible involvement of the holder of forum prerogative with the commission of a crime (STJ, HC 307.152-GO, Rapporteur Min. Sebastião Reis Júnior, Rapporteur for Judgment Min. Rogerio Schietti Cruz, judged on 11/19/2015, DJe 12/15/2015 – Newsletter n. 575 ).

Provisional enforcement:  It is possible to provisionally enforce a sentence imposed in a condemnatory decision handed down in a criminal action with the original jurisdiction of a court (EDcl in REsp 1.484.415-DF, Reporting Judge Rogerio Schietti Cruz, judged on 3/3/2016, DJe 4/14/2016 – Newsletter n. 581).

Competence to prosecute and judge members of the MPU:  Members of the Public Ministry of the Union (MPU) must be prosecuted and judged in the court before which they acted at the time of the facts ( Pet 7.063, rel. p/ o ac. min. Ricardo Lewandowski, DJE of 6-2-2018 ).

It is up to the court of origin to assess the possibility of summary acquittal: Even if the complaint is received before the reforms that took place in 2008 and before the defendant is qualified as a state deputy, the written defense is presented, it will be up to the Court of origin to assess the possibility of summary acquittal or reconsideration of the decision of the first degree judge who received the complaint, pursuant to art. 6 of Law no. 8,038/1990 ( AREsp 1,492,099-PA , Judge Ribeiro Dantas, Fifth Panel, unanimously, judged on 06/15/2021, DJe 06/21/2021).

Precedent 704 of the STF

Appeal of the related offense and non-violation of the natural judge:  If A, without the right to special jurisdiction, practices a related offense with B, with right to jurisdiction by prerogative of function, A and B answer together to process in the special jurisdiction. The attraction of the judgment of A to the forum of B does not violate the principle of the natural judge. These are the words of  Precedent 704 of the STF : “It does not violate the guarantees of the natural judge, of full defense and due process of law, to appeal for salute or connection of the defendant’s case to the forum due to the prerogative of function of one of the defendants”. See  “Jurisprudence subsequent to the statement ”.

Court of Jury and issues involving forum by prerogative of function

Court of the Jury and jurisdiction by prerogative of function:  Both the competence of the Court of the Jury and the forum by prerogative of function are constitutionally foreseen. If a mayor is accused of the crime of intentional homicide, in view of the double provision of competence in the CF (the Jury Court in article 5, item  XXXVIII , letter “d” , and the Court of Justice in  article 29, item X), where should he be judged? Which of the two is the applicable rule? Simplifying the norms: (1) all those who commit crimes against life will be prosecuted before the Jury Court; (2) mayors who commit crimes will be prosecuted before the Court of Justice. Which one is special compared to the other? Some writers claim that the second is special in relation to the first. No matter how hard we try, we cannot assimilate this specialty. Both are equally exceptional. Being mayor is unusual, it is exceptional. However, intentionally killing is not normal. Committing a crime against life is also an exceptionality. Therefore, what effectively justifies the prevalence of competence by prerogative of function over that of the Jury’s Court is not the specialty, but the norm contained in the article 78, item III , of the CPP, according to which, in the contest of jurisdictions of different categories, the highest ranking prevails (see the title  Contest of jurisdictions of different categories  in comments to article 78).

Court of Jury and prerogative of function provided for in the State Constitution:  The forum by prerogative of function does not prevail over the jurisdiction of the Court of Jury if the prerogative of function is established exclusively in the State Constitution. It is the statement of  Binding Precedent No. 45  of the STF : “The constitutional jurisdiction of the Jury Court prevails over the forum by prerogative of function established exclusively by the state constitution” (see  debate that originated the Precedent  and  jurisprudence subsequent to the statement ). On this subject, see the title  “The Jury Court and the forum by prerogative of function ” in comments to article 69 of the CPP.

Jury and function prerogative:  If a prosecutor is accused of intentional homicide in co-authorship with another person who does not have jurisdiction due to function prerogative, even with salute ( art. 77, item I ), the other person is sent to be judged by the jury. The prosecutor responds before the Court of Justice ( article 96, item III, of the CF ). In this case, the competence of the Jury Court, which is also constitutional ( article 5 ,  item XXXVIII, letter “d” of the CF ) must be safeguarded.

Doctrine

Lucio Weber de Abreu:  Five controversial issues in criminal jurisdiction . Five cases with five solutions.  tex.pro.br.

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