Defeated in the polls on Sunday, October 30, President Jair Bolsonaro (Liberal Party – PL, right) will once again be treated by the courts as an ordinary citizen.
From January 1, when Luiz Inácio Lula da Silva is sworn in as the new president, Bolsonaro will lose the “privileged forum”, which gives him the right to answer cases only in the Supreme Court (STF).
Cases pending in court involving Bolsonaro fall to the first instance of justice in Brasilia.
Currently, he responds to 58 complaints for common crimes filed during his term as President of the Republic.
But many may continue to be processed in court, at the discretion of the ministers who judge the cases.
The jurisprudence of the Supreme Court provides, as a rule, that all cases against the authorities with prerogatives of the forum must be assigned to the first instance after the loss of the mandate.
However, colleagues of the Court’s ministers see loopholes in the rules that would allow the rapporteurs to decide whether cases remain under their responsibility or are distributed to other courts.
On this list may be the investigations of fake news and digital militias, which caused friction between the STF and the Presidential Palace.
In cases investigated by authorities with jurisdiction and persons who have lost this prerogative, there are conflicts of understanding as to whether the court should dissolve the cases to focus only on those investigated under its jurisdiction.
Among the cases against Bolsonaro in the Supreme Court, 12 cases sued Bolsonaro together against other people, among them are authorities with a privileged forum, such as former minister and senator-elect Sergio Moro (União Brasil-PR), deputy re-elected federal Carla Zambelli (PL-PS) and two sons with activities in Congress: re-elected federal deputy Eduardo Bolsonaro (PL-PS) and senator Flávio Bolsonaro (PL-RJ).
According to jurisprudence, the privileged forum applies as long as the official holds public office.
“The forum with the prerogative of duty, which is often seen as a privilege, is not. Historically, it is applied in all countries of the democratic world as an opportunity for the person holding public office to be protected and not persecuted for his actions and expression of his opinion.
“When this function ends, the forum ceases to exist. The authority is treated as a normal person subject to examination by the competent authorities in the first and second instance,” explains Rubens Beçak, professor of constitutional law at the University of São Paulo (USP).
In 2014, the Supreme Court ruled, based on a vote by former judge Marco Aurélio Mello, that only “investigations involving forum prerogative holders” should be dealt with in court.
However, the people in the ministers’ offices understand that it is up to the reporter of each case to gather the opinion of the Attorney General and analyze whether the facts of the case have a “close connection” between the accused and only then decide whether the people without a forum should continue to be judged by the court.
Constitutional law professor Thomaz Pereira from Fundação Getúlio Vargas (FGV-Rio) reinforces the understanding circulating in the court that it is up to each reporter to decide what remains in the Supreme Court.
“In every case or investigation, an individual decision must be made. Depending, for example, on other investigated persons who may still have jurisdiction.
“But in principle, if the president loses his position, there would be no reason for him to be tried specifically in the STF,” he explained.
Despite internal disagreements over the rule adopted in the case, at least two cases against Bolsonaro could keep him in the eyes of the Supreme Court and Minister Alexandre de Moraes, whom he considered his main opponent.
The president is the target of two petitions involved in investigations of fake news and digital militias.
It is understood that the forum remains because the possible crimes are against the High “institution”.
It explains, for example, why former Congressman Roberto Jefferson was arrested last week on Moraes’ orders.
In these cases, Moraes will decide whether to keep the charges against the president under his jurisdiction or to refer the investigations to the first instance.
Bolsonaro became the target of investigations after he made a live broadcast at the headquarters of the Planalto Palace, where he spread fake news about the electoral system and attacked electronic ballot boxes.
In addition to the actions that 58 faced in the Supreme Court, Bolsonaro may still have more than 100 acts of his government overturned by ministers.
The issues raised by opposition parties and associations against the president’s decisions are awaiting analysis by the Court.
These accusations are not related to Bolsonaro’s behavior but to acts he has committed in office, which do not have criminal consequences.
“There are actions against acts exercised by the President of the Republic, such as decrees and provisional measures.
“Everything rests with the Supreme Court. What comes down (in the first degree) are very personal acts of a criminal nature, that is, the crimes that he (Bolsonaro) would have committed,” explained Professor Georges Abboud, professor of constitutional law and civil procedure at the Pontifical Catholic University of. São Paulo (PUC-PS).
Abboud believes that, depending on the weight of the acts committed during the exercise of the presidency, Bolsonaro may still suffer administrative consequences in the courts.
“Depending on the outcome of the trial of some of the president’s acts, Bolsonaro could be sued for misconduct, which is also judged by the first instance,” he said.
With information from Estadão
