Brazil: Cases against Bolsonaro in the Supreme Court must go to the first instance

Defeated at the polls on Sunday, Oct. 30, President Jair Bolsonaro (Liberal Party – PL, right) will again be treated by the courts as an ordinary citizen.

As of 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 respond to cases only at the Supreme Court (STF).

Cases in progress at the court involving Bolsonaro fall to the first instance of Justice in Brasilia.

Currently, he responds to 58 complaints of common crimes filed during his term as President of the Republic.

But many may continue to be processed at the court, according to the understanding of the ministers who judge the cases.

The jurisprudence of the Supreme Court provides, as a rule, that all cases against authorities with the prerogative of the forum should be assigned to the first instance after the loss of the mandate.

However, colleagues of the Court ministers see loopholes in the rules that would allow the rapporteurs to decide whether the cases remain under their responsibility or are distributed to other courts.

On this list could be the investigations of fake news and digital militias, which caused friction between the STF and the Presidential Palace.

In cases investigating authorities with jurisdiction and people who have lost this prerogative, there are conflicts of understanding about whether the court should dismember the cases to focus only on those investigated under its jurisdiction.

Among the cases against Bolsonaro at the Supreme Court, 12 cases indict Bolsonaro jointly against other people, among which are authorities with a privileged forum, such as former minister and senator-elect Sergio Moro (União Brasil-PR), re-elected federal deputy Carla Zambelli (PL-SP) and two sons with activities in Congress: re-elected federal deputy Eduardo Bolsonaro (PL-SP) and senator Flávio Bolsonaro (PL-RJ).

According to jurisprudence, the privileged forum applies as long as the official holds public office.

“The forum by the prerogative of office, often seen as a privilege, is not. It is historically applied in all countries of the democratic world as a possibility for the person who holds public office to be protected and not be persecuted for his actions and his expression of opinion.

“When this function is over, 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, a constitutional law professor at the University of São Paulo (USP).

In 2014, the Supreme Court decided, based on a vote by former Justice Marco Aurélio Mello, that only “inquiries involving holders of the prerogative of the forum” should be processed at the court.

However, people in the ministers’ offices understand that it is up to the rapporteur of each case to collect 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 people without forum should continue to be tried 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 rapporteur to decide what remains in the Supreme Court.

“In each case or inquiry, 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 more reason for him specifically to be tried at the STF,” he explained.

Despite internal disagreements about the rule adopted in this case, at least two cases against Bolsonaro can keep him in the sights of the Supreme Court and of the minister Alexandre de Moraes, who he considered his main opponent.

The president is the target of two petitions incorporated into the investigations of fake news and digital militias.

There is an understanding that the forum remains because the possible crimes are against the Supreme “institution”.

It explains, for example, why former Congressman Roberto Jefferson was arrested last week on the orders of Moraes.

In these cases, it will be up to Moraes to 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 the investigations after making a live broadcast at the headquarters of the Planalto Palace, where he disseminated false news about the electoral system and attacked the electronic ballot boxes.

Besides the actions 58 faced in the Supreme Court, Bolsonaro can still have more than 100 acts of his government overturned by the ministers.

Cases filed by opposition parties and associations against the president’s decisions are pending Court analysis.

These accusations do not deal with Bolsonaro’s conduct but with acts he performed in the office, which do not generate criminal consequences.

“There are actions against acts exercised by the president of the Republic, such as decrees and provisional measures.

“It all stays at the Supreme Court. What goes down (to the first instance) are very personal acts of a criminal nature, that is, the crimes that he (Bolsonaro) would have committed,” explained Professor Georges Abboud, constitutional law and civil procedure professor at the Pontifical Catholic University of São Paulo (PUC-SP).

Abboud ponders that, depending on the gravity 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 may be indicted for misconduct, which is also judged by the first instance,” he said.

With information from Estadão