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The deputies did not analyze the merit (content) of the text, only the formal aspects. That is, if the wording conforms to the legislative technique and does not violate legal or constitutional principles. The alleged admissibility had to be approved by the majority of those present. As 461 deputies participated, 231 votes were needed.
The PEC is a reaction to the flagrant arrest of Deputy Daniel Silveira (PSL-RJ), determined by the Federal Supreme Court (STF). The arrest was motivated by a video that he posted on the internet with an apology for AI-5, the toughest act of the military dictatorship, and the defense of the removal of ministers from the Supreme Court. Both guidelines are unconstitutional.
7 min House tries to hastily vote an amendment to make it more difficult to arrest deputies
House tries to hastily vote an amendment to make it more difficult to arrest deputies
If the PEC had already existed, Daniel Silveira, from the PSL, could not have been arrested on the spot, for example.
The content of the proposal can already be analyzed on Thursday (25). As it is an amendment to the Constitution, the PEC must be voted on in two rounds. To be approved, it needs the votes of at least 308 of the 513 deputies. Then it goes to the Senate.
The PEC was included in the agenda of the Plenary of the Chamber hours after its presentation, without previously going through any commission, which generated criticism from some parties, such as PSOL and Novo.
The opinion of the Constitution and Justice Commission (CCJ), the first stage of processing a PEC, was presented directly to the plenary by the rapporteur, Margarete Coelho (PP-PI).
When the merit is analyzed, a new opinion will be presented, which may keep the original text or suggest changes.
6 min PEC parliamentary immunity: text restricts possible detentions of deputies and senators
PEC parliamentary immunity: text restricts possible detentions of deputies and senators
The deputies are trying to approve, in prison, a constitutional reform proposal that makes the detention of parliamentarians much more difficult than the commission of atrocious crimes, as in the cases of Messrs. Daniel Silveira and Flordelis. The proposal, which is on the agenda today, prevents a congressman from being removed or imprisoned on the orders of a single STF minister.
Discover, point by point, what the proposal that is debated in the House says:
How it is today: Parliamentarians enjoy parliamentary immunity and can only be arrested on the spot for heinous crimes.
How is it: The parliamentarian can only be arrested in flagrante delicto for a heinous crime provided for in the Constitution. Among them, racism, torture, illicit drug trafficking, terrorism, atrocious crimes and the action of armed groups, civil or military, against the constitutional order and the Democratic State.
In the case of Daniel Silveira, the prison was framed by Minister Alexandre de Moraes in crimes against public order provided for in the National Security Law.
According to the author of the PEC, Celso Sabino (PSDB-PA), the arrest of a parliamentarian in the act does not need to be confirmed by the plenary session of the Supreme Court, which brings together the 11 ministers.
If the proposal is approved, the parliamentarians believe that the changes would have a retroactive effect and could benefit cases like Daniel Silveira’s. This is because, according to Deputy Fabio Trad (PSD-MS), the Constitution establishes that the criminal law must retroactively favor the accused.
- Rite in case of arrest on the spot
How it is today: The Chamber (in the case of a deputy) or the Senate (if it is a senator) must be notified within 24 hours of the arrest in flagrante delicto and submit to the Plenary the analysis of the measure. The Plenary can revoke the prison or keep it by decision of the absolute majority (that is, 257 deputies or 41 senators).
How is it: The detained parliamentarian remains detained in the premises of the Chamber itself or the Senate until the Plenary makes a decision. If the plenary decides to keep the prison, the detained parliamentarian will be subjected to a custody hearing by the competent court. The text says that the judge must relax the prison, granting provisional freedom. You can only keep him in prison if there is a manifestation of the Public Ministry requesting the conversion to preventive detention or the adoption of precautionary measures.
- Scope of parliamentary immunity
How it is today: The deputies and senators enjoy parliamentary, civil and criminal immunity for any opinion, word and vote. The principle of parliamentary immunity is to give institutional guarantees to the parliamentarian so that he is not persecuted for ideas and opinions.
Although he claimed parliamentary immunity, President Jair Bolsonaro, for example, was convicted in a civil action to compensate deputy Maria do Rosário (PT-RS) for a statement made when he was a deputy. He said that María do Rosário did not deserve to be raped because he considers her “very ugly” and she was not his “type.” By the same statement, Bolsonaro became a defendant in two criminal actions, which are suspended since, as head of the federal Executive, he cannot answer for events prior to his mandate.
How is it: Parliamentary immunity is maintained, but the parliamentarian can only answer for his statements in a disciplinary process in the Council of Ethics of the Chamber or the Senate, which can eventually lead to the loss of his mandate. You cannot be held civilly or criminally liable in any way.
How it is today: Precautionary measures, such as removal from office or restriction to attend certain places, may be decided by the competent court of the case.
How is it: Any measure that affects the parliamentary mandate cannot be taken in a system of judicial functions and will only come into force after being confirmed by the full STF. The PEC expressly prohibits the parliamentarian from being temporarily removed from office by judicial decision.
How it is today: The judge in charge of the case can determine the search and seizure directed to the parliamentarians.
How is it: Only the STF may determine the raids and seizures with a deputy or senator as the target and that are carried out in the facilities of the Chamber or Senate or in the residences of parliamentarians. In this case, compliance with the measure must be monitored by the Legislative Police of the House or Senate. The seized assets will remain in charge of the Legislative Police until the full STF confirms the decision to search and seize, under penalty of abuse of authority.
How it is today: The current understanding of the STF, according to the 2018 ruling, determines that the privileged forum is valid only for crimes committed in the mandate and related to parliamentary activity. That is, the deputies and senators have no forum in common crimes or crimes committed before the mandate and respond to these processes in lower instances.
How is it: The norm that restricts the forum is maintained and is expressly included in the Constitution.
How it is today: In the evaluation of parliamentarians, the principle of symmetry already provides that the prerogatives of federal deputies and senators are transferred to state deputies.
How is it: PEC makes this symmetry explicit to give greater legal certainty to the subject. The proposal also provides that state deputies have the same prerogatives as senators and federal deputies in matters of parliamentary immunity. Therefore, they can only be arrested for flagrant and unreliable crimes provided for in the Constitution. Another example is that, if arrested in this situation, the state deputy will also be kept in custody in the respective legislative assembly.
- Double degree of jurisdiction
How it is today: The Constitution says that it is up to the STF to judge the writ of habeas corpus and injunction, for example, when they have been denied by the higher courts. It also provides for the STF to judge an appeal in case of political crime.
In relation to the Superior Court of Justice (STJ), a forum in which state governors and deputies are judged, the Constitution establishes that it is up to the STF to judge appeals against the decisions of the Regional Federal Courts (TRF) .
How is it: The previous situations are maintained, but the text adds that the STF will also judge the resources of criminal actions decided, in a single instance, by the STF itself or by higher courts.
In the opinion of the rapporteur, the changes aim to guarantee “the double degree of competence in criminal proceedings initially judged by the STF (by means of an ordinary appeal before the STF itself), by the Superior Courts (by means of an ordinary appeal before the STF) and by the Courts of second instance (by ordinary appeal before the STJ) ”.
How it is today: In the part that deals with political rights, the Constitution refers to the complementary law to other cases in which citizens cannot be elected. According to this law, known as the Clean File Law, the candidate whose mandate is revoked is ineligible for eight years, resigns to avoid revocation or is sentenced by decision of a collegiate body, although there is still the possibility of appeal.
How is it: The proposal establishes that the disqualification provided for in the Clean Registry Law will only take effect with the observance of the double degree of competence. In practice, this means that ineligibility only occurs after an appeal.
In the evaluation of critical parliamentarians to measure, this leaves a gap for someone to simply decide not to appeal a decision so as not to become ineligible.
