How stable are the STF's decisions?
Article in Correio Braziliense, on 17/05/2018, on the STF decision limiting the trial of members of Congress to facts related to their term of office.
Translated from the original.
In the recent STF judgment, it was decided that the Court will prosecute only a senator or deputy who is investigated or accused for facts related to the term of office and by virtue of the position. It was also decided that, once the evidence-gathering phase has ended, even if the term of office of the person under investigation or defendant has ended, the Court’s jurisdiction remains. The decision affects only 1% of the 54,990 people benefiting from foro privilegiado in Brazil, and it should still generate major procedural turmoil in the STF itself, creating incidents in the cases where it applies, since it will lead to countless controversies.
If this recent tendency of the Court to change its understandings in the short term prevails, imagine the prospect of legal uncertainty in the face of a possible change of interpretation on the horizon, since the understanding on privileged forum was by majority, just as occurred in the case of the deliberation on the execution of sentence from second-instance decisions.
Recall that this decision on special forum was handed down in a Point of Order concerning Criminal Action 937, which involves the Mayor of Cabo Frio (RJ). Can one rely on the stability of this understanding — that is a fundamental question?
If we take as a reference what is happening with the debate on imprisonment after a second-instance ruling, which was consolidated in February 2016, and then in October of the same year, but now undergoes a turnaround, what may happen with the special forum prerogative?
This is a decision of enormous impact on national life and with gigantic repercussions throughout the Brazilian justice system. Its most immediate consequences, moreover, signal an immense bureaucracy in the handling of cases and a multiplication of incidents and formal debates. Fertile ground for procedural law scholars.
There is another intriguing concern: if special forum is relevant to criminal proceedings and deserves an interpretation by the Constitutional Court, as proclaimed, it is incomprehensible that improbity actions should be left out.
What is improbity? These are offenses parallel to crimes, defined in Law 8,429/92, whose nature is not criminal but that of administrative sanctioning law. They are severe penalties, which affect individual liberties. Would a literal interpretation of the constitutional rule prevail for these actions?
That is: for imprisonment after a second-instance ruling, there is no literal interpretation; to understand the text of the special forum of senators and deputies, there is no literal interpretation; but to leave out those accused in administrative improbity actions, who are exposed to the sanctions of suspension of political rights, loss of office, bans on rights and the system of administrative sanctioning law (whose legal regime historically imports the rules and principles of criminal law by analogy), then yes, literal interpretation is appropriate?
I understand that, at a minimum, the STF should act coherently. The late Justice Teori Zavascki defended special jurisdiction by reason of office in improbity actions, as in criminal actions, following the criminal-law regime for the regime of administrative sanctioning law.
Legal certainty is an essential value for contemporary democracies. And within it falls the ideal of coherence of judicial decisions and case law. If there is no special forum by reason of office for anyone, this will apply to criminal actions and to improbity actions. If there is for criminal actions, by reason of the relevance of the office, it will be necessary to extend identical protection in the scope of improbity to those same authorities, since otherwise there will be a risk of serious incongruity, including of judicial decisions.
Fábio Medina Osório is a lawyer and former minister of the Office of the Attorney General of the Union