Parliamentary immunities represent constitutional guarantees for members of the National Congress, that is, federal deputies and senators, with the aim of ensuring the independence of the Legislative Branch from the other branches and allowing parliamentarians to perform their duties without fear of external pressure or reprisals. These guarantees are mainly provided for in Article 53 of the 1988 Federal Constitution of Brazil. In verbis:

Article 53. Deputies and Senators are inviolable, both civilly and criminally, for any of their opinions, words, and votes.

§1. Deputies and Senators, from the moment their credentials are issued, will be subject to trial before the Supreme Federal Court.

§2. From the issuance of their credentials, members of the National Congress may not be arrested, except in flagrante delicto for a crime that is not subject to bail. In such cases, the records shall be forwarded within twenty-four hours to the respective House, so that, by a majority vote of its members, it may decide on the arrest.

§3 Upon receiving an indictment against a Senator or Representative for a crime committed after their swearing-in, the Supreme Federal Court shall notify the respective House, which, at the initiative of a political party represented therein and by a majority vote of its members, may, until the final decision, suspend the proceedings.

§4 The request for suspension will be considered by the respective House within a non-extendable period of forty-five days from its receipt by the Board of Directors.

§5 The suspension of the proceedings suspends the statute of limitations for the duration of the mandate.

§6. Deputies and Senators shall not be compelled to testify about information received or given in the course of their duties, nor about the persons who entrusted them with or received information from them.

§7 The incorporation of Deputies and Senators into the Armed Forces, even if they are military personnel and even in times of war, will depend on prior authorization from the respective House.

§8 The immunities of Deputies or Senators shall remain in effect during a state of siege, and may only be suspended by a two-thirds vote of the members of the respective House, in cases of acts committed outside the premises of the National Congress that are incompatible with the execution of the measure. (CF/88)

Thus, this article seeks to present, in a concise manner, the legal concepts related to Parliamentary Immunity and to encourage the reader to seek more information about the guarantees of the Democratic Rule of Law, as in our brilliant article by Professor Manassés: What are the mechanisms for defending the Democratic Rule of Law?

Who are the Immunities Targeted For?

Parliamentary immunities are exclusively granted to members of the National Congress—federal deputies and senators—during their terms of office. These guarantees aim to protect the integrity of the legislative process against undue interference from other branches of government.

How do parliamentary immunities work?

Material Immunity or Inviolability

Also called Absolute Immunity, material immunity grants parliamentarians inviolability for their opinions, words, and votes expressed in the exercise of their functions and within the jurisdiction of the National Congress. As Professor Dário states, "These are the so-called crimes of opinion or speech, such as crimes against honor, incitement to crime, etc."

This means they cannot be prosecuted civilly or criminally for statements made during their term that are related to legislative activity. This guarantee is provided for in the preamble of Article 53 of the 88 Brazilian Constitution.

It should be noted that, as stipulated in the constitutional provision, this immunity is understood to cover any and all opinions, whether expressed in the exercise of the mandate, related to it or not. 

This hypothesis is reckless; parliamentary guarantees are intended to protect democracy and the effective separation of powers. In other words, they are intended to guarantee the Constitution itself and the foundation of the democratic rule of law.

In this vein, it does not seem reasonable to us that there should be a systemic suppression of various fundamental rights and guarantees of ordinary citizens, in the face of offenses against honor, defamation, and slander uttered by a holder of an elected mandate in the National Congress simply to express their "opinion," even if it has nothing to do with the exercise of their office.

Formal or Procedural Immunity

Known as relative immunity, formal or procedural immunity protects parliamentarians from being arrested, except in cases of flagrant crimes that are not subject to bail, as defined by law, as well as the prerogative to refuse to serve as a witness.

Furthermore, members of Congress can only be prosecuted and judged by the Supreme Federal Court (STF), establishing a prerogative of jurisdiction by virtue of their office. It is important to mention that criminal proceedings against parliamentarians require prior authorization from the respective House to which the parliamentarian belongs in order to be initiated.

Formal immunity protects parliamentarians against political persecution, ensuring the free exercise of their legislative functions. This immunity, both material and formal, defends the legislative institution and cannot be waived by the individual. 

It is important to point out that, recently, the Supreme Federal Court (STF) restricted this prerogative to crimes committed during and because of the mandate (functional crimes), excluding crimes not related to parliamentary functions, which will follow ordinary jurisdictional competence.

What are the exceptions to Parliamentary Immunities?

Despite the broad protections, there are significant exceptions to parliamentary immunities. As mentioned earlier, in the case of being caught in the act of committing a non-bailable crime, procedural immunity does not apply, and the parliamentarian can be arrested. 

Additionally, immunities do not protect parliamentarians from actions arising from acts unrelated to the exercise of their duties, such as common crimes unrelated to legislative activity.

Want to read more about this topic? Check out the article: Legislative Process and Legistics: How does the proposal and processing of Ordinary Bills work?

Conclusion

Parliamentary immunities are essential instruments for maintaining the independence and sovereignty of the Legislative Branch. They guarantee that elected representatives can exercise their legislative functions without fear of persecution or undue interference, thus contributing to a balance of powers that is vital for the functioning of a robust and healthy democracy.

In this context, a professional well-prepared to handle the intricacies of the legislative process and the nuances of constitutional provisions and mechanisms is extremely important, including when it comes to advising or defending parliamentarians in court.

With this in mind, IDP promotes the Online Postgraduate Program in Legislative Law, aimed at all legal professionals seeking a relevant role in the highly volatile and dynamic environment of the National Congress.

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References

Brazil. Constitution of the Federative Republic of Brazil – 1988.

Dário, César. The Limits of Parliamentary Immunities. Conjur. Available at: < https://www.conjur.com.br/2021-mar-04/cesar-dario-limites-imunidades-parlamentares/ > Accessed on 04/14/2024.