Privileged Forum: Lifetime Officeholders Keep Their Prerogative

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The Special Court reaffirmed, by majority vote, that authorities holding lifetime offices keep their privileged forum by virtue of office (foro por prerrogativa de função), even for crimes unrelated to the exercise of the office, until the Supreme Court settles the issue.

Lifetime offices and privileged forum by virtue of office

The decision held firm to the position that justices of the superior courts, state appellate judges (desembargadores), members of the Public Prosecutor’s Office, and other holders of the lifetime offices listed in art. 105, I, “a,” of the Constitution remain under the original jurisdiction of the STJ (Brazil’s Superior Court of Justice). That position holds even when the criminal charge involves conduct unrelated to the official’s duties.

The justices who favored a restrictive reading of the privileged forum, limited to crimes committed while in office and because of it, were outvoted. The disagreement arose from a procedural motion (questão de ordem) raised in a private criminal complaint (queixa-crime) involving a deputy attorney general for labor matters, who was accused of making threats and committing a crime against honor in a private setting.

The restrictive view requires a link to the office and to the time in office

The losing side argued that case law has been moving in a restrictive direction since the judgment of Criminal Action 937 in 2018. Under that reading, the privileged forum would cover only crimes with a temporal link and a causal link between the criminal act and the public office, and it would not extend to private acts or to acts committed before the person took office.

The privileged forum protects the independence of lifetime offices and should not be confused with a personal privilege of the accused.

The justices on this side also cited a recent ruling by a panel of the Supreme Court (Brazil’s Supreme Federal Court) that accepted keeping the privileged forum for members of the Public Prosecutor’s Office and the Judiciary in cases unrelated to the office. They noted, however, that the matter still awaits resolution under Theme 1.147 of general repercussion (the Supreme Court’s mechanism for cases of broad national importance), which would call for caution before locking in a shift in case law.

The specific case under review

In the case at hand, the restrictive side voted to send the case to the special criminal court (juizado especial criminal), finding no connection between the facts and the public office. That position would be consistent with a more limited reading of the prerrogative, a recurring topic in administrative law and in modern criminal procedure.

The prevailing view preserves settled case law

The prevailing view was that the Court has its own constitutional jurisdiction and may set guidance while the Supreme Court has not taken a final position on lifetime offices. The dissent that carried the day, opened by Justice Antonio Carlos Ferreira, argued that Criminal Action 937 dealt specifically with elected mandates and does not automatically extend to other authorities.

The privileged forum protects the independence of lifetime offices and should not be confused with a personal privilege of the accused. The prevailing side also pointed to the practical consequences of a possible shift in case law, such as sending investigations and cases down to the trial courts or to the Electoral Courts. For the majority justices, that shift could create legal uncertainty and undermine the institutional integrity of the criminal justice system.

In practice, state appellate judges, members of courts of accounts, and equivalent authorities will remain under the Court’s original jurisdiction, even for acts committed before they took office or with no direct relation to their duties. That position stands unchanged until the Supreme Court rules under general repercussion.

Open issues for a new session

The panel did not resolve every dispute over the privileged forum. Questions such as whether the procedural benefit continues after the person leaves office, and the exact moment at which original jurisdiction is fixed, will be addressed in a session scheduled for early May. Settling those points should further refine the limits of original criminal jurisdiction.

Until the new judgment, the criteria already in place remain in force. Authorities in lifetime offices will continue to be prosecuted by the STJ when they fall within the constitutional categories, which gives stability to pending investigations and criminal cases. Any future adjustment will depend on how the STJ and the STF (Brazil’s Supreme Federal Court) align on Theme 1.147.

The pending issue highlights the institutional dialogue that marks the debate over privileged forum in Brazil. Waiting for a final position from the Supreme Court signals deference to the system of binding precedents, but it also preserves the Special Court’s interpretive autonomy until the higher courts reach a consensus.

Frequently Asked Questions

Who keeps the privileged forum by virtue of office under the reaffirmed position?

Authorities in the lifetime offices listed in art. 105, I, “a,” of the Constitution, such as state appellate judges, members of courts of accounts, and members of the Public Prosecutor’s Office, remain subject to the Court’s original jurisdiction. The forum continues to apply even if the alleged crime has no connection to the exercise of the office, in line with the position settled by the Special Court.

What was the main argument of the losing side?

The losing side argued for a restrictive interpretation that would limit the privileged forum to crimes committed while in office and because of it. This group invoked the requirement of a temporal link and a causal link between the crime and the public office, following the direction of Criminal Action 937 and recent decisions. In these justices’ view, the case at hand should have been sent to the special criminal court.

Why did the debate not end with this judgment?

The Court left two related and important questions for another session: whether the forum continues after the person leaves office, and the procedural moment at which original jurisdiction is fixed. These points, together with the pending Theme 1.147 before the Supreme Court, suggest that the final shape of the prerogative will go through further refinements in the coming months.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.