In Brazil, privileged jurisdiction, formally known as jurisdiction by virtue of office in the legal system, is a mechanism that establishes a differentiation in judicial competence for the trial of certain public authorities.
This institution, situated within the context of Administrative and Constitutional Law, has its roots in the very structure of the State and in the need to balance the administration of justice with the functional protection of high-ranking public officials.
The prerogative of special jurisdiction seeks to ensure that high-ranking authorities, due to the relevance and sensitive nature of their functions, are judged by superior courts. This arrangement is justified by the premise that such authorities, because of their strategic positions and decisions that can broadly affect society and the State, require differentiated jurisdictional treatment to ensure the impartiality and independence necessary for the performance of their duties.
The aim of this article is to provide a comprehensive understanding of how this mechanism operates within the Brazilian legal system, its implications for the administration of justice and the balance of powers, as well as the challenges faced in its application and reform.
Constitutional Basis
In the context of Brazilian law, the special jurisdiction for public officials rests on a solid and intricate constitutional basis, reflecting the complexity of the justice system and the country's political structure. In this sense, we will unfold its constitutional foundations, highlighting the specific provisions of the 1988 Federal Constitution that underpin it.
Key Articles of the Constitution:
Article 102: This article is crucial because it establishes the jurisdiction of the Supreme Federal Court (STF).
Paragraph I, subparagraph “b”, of article 102 specifies that the Supreme Federal Court (STF) has original jurisdiction to try 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. This provision ensures that the highest-ranking authorities are judged by a court of recognized technical capacity and impartiality.
Furthermore, item I, subparagraph “c”, of the same article, outlines the competence of the STF to prosecute and judge common criminal offenses and crimes of responsibility, Ministers of State and the Commanders of the Navy, Army and Air Force, members of the Superior Courts, members of the Federal Court of Accounts and heads of permanent diplomatic missions.
It is worth highlighting the exception provided for in Article 52, paragraphs I and II of the Constitution, regarding the trial of crimes of responsibility involving the participation of the President and Vice-President of the Republic, as well as the Ministers of the Supreme Federal Court, the members of the National Council of Justice and the National Council of the Public Prosecutor's Office, the Attorney General of the Republic and the Solicitor General of the Union, in which case jurisdiction will fall to the Federal Senate.
Article 105: It outlines the competencies of the Superior Court of Justice (STJ).
According to item I, subparagraph “a”, this court is responsible for judging governors of states and the Federal District, judges of the State Courts of Justice and the Federal District, Regional Federal Courts, among others, in cases of common criminal offenses. This provision aims to ensure that trials of figures of high regional stature are conducted at the national level, seeking greater neutrality and specialization.
Article 29: It outlines the organizational structure of the Municipality.
As stipulated in item X of the aforementioned article, the method for judging Mayors before the Court of Justice will be established in the Municipal Organic Law.
It is worth noting the position established in the judgment of CC 120.848/PE, reported by Minister Laurita Vaz, 3rd Section of the STJ. This later gave rise to Precedent 702 of the STF, namely:
Summary No. 702 The jurisdiction of the court of justice to judge mayors is restricted to crimes within the jurisdiction of the ordinary state courts; in other cases, original jurisdiction will belong to the respective court of second instance.
Article 96: Describes some exclusive competencies.
In its item III, it determines that it is the exclusive responsibility of "the Courts of Justice to judge state judges and those of the Federal District and Territories, as well as members of the Public Prosecutor's Office, in common crimes and crimes of responsibility, without prejudice to the jurisdiction of the Electoral Courts."
Article 108: It determines the jurisdiction of the Regional Federal Courts.
In this sense, item I points out that it is the responsibility of the Regional Federal Courts to prosecute and judge "federal judges within their jurisdiction, including those of the Military Justice and Labor Justice, in common and official crimes, and members of the Federal Public Prosecutor's Office, without prejudice to the jurisdiction of the Electoral Justice;"
Criticisms and Discussions
We can observe that the institution under study is the subject of intense criticism and debate. Critics argue that it creates a kind of "caste" of individuals above the law, contributing to impunity. Furthermore, they point out that the higher courts, such as the STF (Supreme Federal Court) and the STJ (Superior Court of Justice), lack the necessary structure to judge the large number of criminal cases, leading to significant delays in justice.
On the other hand, proponents of privileged jurisdiction argue that it is necessary to protect public functions from frivolous or politically motivated accusations, ensuring independence and impartiality in decision-making.
Current Changes and Trends
The privileged forum in Brazil has undergone significant transformations in recent years, reflecting an evolution in legal understanding and a response to social demands for greater equality and efficiency in the justice system.
One of the most significant changes occurred in May 2018, when the Supreme Federal Court, in a procedural matter related to Criminal Action No. 937, decided, by majority vote, to restrict the scope of privileged jurisdiction.
This decision limited the application of special jurisdiction for public officials to criminal offenses committed during the exercise of their duties and that are directly related to the functions performed by the authority. This change represented a milestone, as it considerably reduced the number of authorities subject to trial by the Supreme Federal Court.
The Supreme Court's decision had the immediate consequence of transferring hundreds of cases to lower courts. This measure aimed to ensure that special jurisdiction was not used as a mechanism for impunity, guaranteeing that only crimes strictly related to public functions were judged in the higher courts.
Another issue, in response to criticism and public debate, concerns the various Proposed Amendments to the Constitution that have been presented in the National Congress. These PECs aim to reform or even eliminate privileged jurisdiction. The objective is to ensure greater equality in the justice system, preventing high-ranking officials from receiving preferential treatment compared to ordinary citizens.
This is the case with Constitutional Amendment Proposal (PEC) 333/2017, authored by Senator Alvaro Dias, which has been awaiting a plenary vote since December 2018. This PEC "amends articles 5, 37, 96, 102, 105, 108 and 125 of the Federal Constitution to eliminate special jurisdiction based on official position in cases of common crimes, and repeals item X of article 29 and paragraph 1 of article 53 of the Federal Constitution."
Want to read more about this topic? Check out the article: The role of the TSE in the investigation of electoral crimes.
Conclusion
In Brazil, the special jurisdiction for public officials is an issue that encompasses the search for a balance between protecting the exercise of public functions and the need to guarantee equality before the law. Recent changes in the jurisprudence of the Supreme Federal Court represent a step towards greater restriction of this institution, but the debate about its existence and form continues to be a relevant topic on the country's legal and political agenda.
Current changes and trends regarding privileged jurisdiction in Brazil reflect an ongoing effort to adapt the legal system to the demands of justice and equality.
For legal professionals to be able and prepared to deal with these changes and to discuss in the public sphere the fundamentals of special jurisdiction and various other issues that permeate Brazilian constitutionalism, it is essential that they seek to stay updated and in constant learning.
Therefore, why not learn from those who are already participating in the public debate and are at the forefront of these changes? With this in mind, IDP offers an online postgraduate course in Constitutional Law. It features renowned professors, such as the current Supreme Court Justice Dr. Gilmar Mendes, and leading authors on constitutionalism such as Professor João Trindade.
References
BRAZIL. Superior Court of Justice. The forum by prerogative of function and the restrictions on its application in the STJ. Available at: < https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/O-foro-por-prerrogativa-de-funcao-e-as-restricoes-a-sua-aplicacao-no-STJ.aspx#:~:text=Em%20maio%20de%202018%2C%20o,fun%C3%A7%C3%A3o%20ou%20em%20raz%C3%A3o%20dela .> Accessed on: 12/30/2023.
BRAZIL. Chamber of Deputies. UNDERSTAND THE PRIVILEGED FORUM AND SEE WHAT COULD CHANGE. Available at: < https://www.camara.leg.br/internet/agencia/infograficos-html5/entenda-foro-privilegiado-e-veja-o-que-pode-mudar/index.html >. Accessed on: 12/30/2023.
