STF changes privileged forum rule when judging 8/1 coup plotters

Article 102 of the Federal Constitution lists the authorities with the right to be judged by the STF (Federal Supreme Court). Although the text is clear, for the last 16 years the Court has experienced a kind of accordion effect in the interpretation of the rule. Each new understanding has a different political scenario in the background.

The newest interpretation for the special forum was wide enough to house 1,390 accused of participating in the anti-democratic acts of January 8. Among those investigated, there are five federal deputies, a position that gives the right to trial in the Supreme Court.

In the analysis of the two waves of complaints, the scoreboard counted only two votes against the receipt of 300 complaints: Kassio Nunes Marques and André Mendonça. The quickest reading is that both were appointed by former President Jair Bolsonaro and, therefore, turn a blind eye to the attempted coup d’état.

But the votes of both explore points that could have yielded a heated debate in the plenary, were it not for the fact that the trial is in a virtual environment.

Most STF ministers considered that the crimes are related and there is potential involvement of parliamentarians. As the evidence of the infractions committed would be interconnected, the authorities with jurisdiction would drag the other investigated parties to the Supreme Court. Another argument is that, if the investigation is sliced ​​and distributed to different judges of first instance, the judgments could present different treatments to people who adopted similar behaviors.

Nunes Marques and Mendonça consider that, for the infractions to be considered related, it is necessary to demonstrate the connection points precisely, and not generically. And more: according to recent jurisprudence of the court, for the authorities to pull the forum of the other investigated, it is necessary that concrete facts demonstrate the involvement of the holders of the positions – which would not have occurred in the complaints presented by the PGR (Attorney General of the Republic).

“The original judgment before the STF of a person who does not hold jurisdiction due to prerogative of function is absolutely exceptional and strictly linked to hypotheses of connection or continence, under the terms of procedural law. These hypotheses must be well demonstrated and surrounded by minimal concreteness, not only based on possibilities that may or may not materialize in the future,” wrote Mendonça.

“Such an understanding also aims to preserve the Court and the rationality of the jurisdictional provision, as well as the exceptional character of the judgment by prerogative of forum, which, on the one hand, is a guarantee only of certain positions and, on the other, ends up excluding instances to which the accused in criminal proceedings would normally have access”, he added.

Nunes Marques stated that the STF “has been following the line of moving away from the trend of concentration of cases in the same jurisdictional unit”. The minister recalled that, in a Lava Jato investigation, the court established: “No jurisdictional body can exercise universal judgment of any and all crimes related to the diversion of funds for party-political purposes, in breach of the rules of competence “. It was a response to the concentration of cases in the 13th Federal Court of Curitiba, then commanded by Sergio Moro.

The two ministers also considered that, in 2018, the STF interpreted the forum by prerogative of function in a restrictive way. In a matter of order taken to plenary by Minister Luís Roberto Barroso, the ministers agreed that only authorities investigated for acts committed while in office and as a result of this would be entitled to the special forum.

In 2007, the scenario in the STF was different. In the trial of the monthly allowance denunciation, the plenary rejected the suggestion of the rapporteur, Joaquim Barbosa, now retired, to split the inquiry. Barbosa appealed for the rationality of the works and for the speed of the judicial provision. Did not work. The ministers at the time thought like most of the current ones: it would not be fair to distribute parts of the investigations by judges across the country, under the risk of giving different treatment to defendants investigated for the same crimes.

Since the final trial of the Mensalão criminal case in 2012, other tools have emerged to prevent a new giant lawsuit from monopolizing the court’s activities. The main mechanism today is the virtual plenary, which allows several simultaneous judgments to be held. It is one of the reasons why the ministers of the STF allowed themselves to extend the privileged forum without running the risk of swamping the court with the 1,390 complaints.

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