SÃO PAULO, SP (FOLHAPRESS) – Although there are elements that could constitute crimes against honor, the parliamentary immunity of federal deputy Marcel Van Hattem (Novo-RS) tends to protect him from a judicial conviction in a process that involves speeches in the plenary session of the Chamber against the PF delegate, Fábio Shor, according to the interpretation of the experts heard by Folha.
They maintain, however, that the STJ (Superior Federal Court) and the STF (Supreme Federal Court) have already adopted a position on the restrictions on the constitutional guarantee, which is not absolute. They also say that they do not see abuse of authority on the part of the PF with the accusation.
The accusation generated a reaction from parliamentarians, and the president of the Chamber, Arthur Lira (PP-AL), said this Wednesday (27) that the Chamber will analyze whether there was abuse of authority. The PF is also investigating deputy Corporal Gilberto Silva (PL-PB) for speeches in the gallery, according to the report.
Van Hattem was indicted on November 13 on suspicion of libel and slander. This happened due to the speeches given in the House on August 14, October 15 and 16 and also through messages on the Internet.
The speech that gave rise to the investigation was that of August 14. In it, the parliamentarian called Shor an “abuser of authority” and a “coward.” He stated that the delegate had made “several absolutely fraudulent complaints” against Filipe Martins, former advisor to former President Jair Bolsonaro (PL), detained in February within the framework of Operation Tempus Veritatis, and other “innocent people.” On the occasion, the deputy, known for criticizing the STF and being a supporter of the former president, showed a photograph of the delegate in the plenary session.
In later speeches, Van Hattem called Shor a “bully.” He said that the police chief is “persecuting”, “threatening” and “committing crimes” and stated that “the Federal Police is dominated by criminals to protect criminals.” Statements were also made on social media calling the police officer “outlaw.”
In the report, the police speak of “the clear intention of Deputy Van Hattem to embarrass, humiliate and offend the DPF Fábio Shor.” It also says that the parliamentarian would have accused the delegate of “carrying out very serious criminal acts, publicly accusing him of having falsified police reports, falsifying information with the intention of intentionally harming third parties under investigation.”
Van Hattem was summoned to clarify the facts, but did not appear, according to the PF report. In his written defense, however, he argued that the criticisms were not personal, but rather pointed to attacks on democracy and freedom.
The deputy’s defense stated in a statement that they considered the accusation “partial and illegal”, in addition to “violating parliamentary immunity.”
In the report, Alexandre Wunderlich, his lawyer, stated that Lira’s statement is in line with the defense’s interpretation of the “illegality of the accusation by the Federal Police.” The lawyer said he hopes the Public Ministry will close the case. “The parliamentarian’s speech was one of denunciation, oversight and has a causal link with the political issue of the exercise of his mandate.”
According to Jordan Tomazelli, master of procedural law at Ufes (Federal University of Espírito Santo), speeches in plenary session or in the exercise of the mandate have, in principle, immunity, but this prerogative is not absolute.
He maintains that the STJ and the STF have already taken a position on the existence of exceptions that, according to the expert, refer to “speeches that aim to attack individual members or people in order to damage their image, without any collective interest.”
“When criticism comes with personal offenses against the public agent, there may be a violation of the principles of impersonality and morality of article 37 of the Constitution. Added to other principles that guarantee the dignity of the human person, privacy and honor, this can eliminate rule 53 [que prevê a imunidade] of the Constitution,” he says.
The expert affirms that he does not see any abuse on the part of the PF in the accusation. He says that, according to the legislation, there is abuse when a criminal investigation is initiated with a clear absence of evidence of authorship and materiality or without just cause.
However, it does not consider this to be the case, since there would be evidence that would support the institution’s decision. “It was understood that what was said in plenary was appropriate to these exceptional situations that the STF has already said could occur,” says Tomazelli.
He states that the deputy was invited to explain the accusation regarding fraudulent complaints, but did not appear, leaving the PF to charge him on suspicion of a crime against honor.
Beatriz Alaia Colin, criminal lawyer and specialist in criminal law and national and European criminal procedure at the University of Coimbra, affirms that there is a subjective aspect to these crimes.
According to her, the fact that Van Hattem spoke about the issue in the House, due to his parliamentary immunity, weighs in his favor. However, he understands that the PF does not abuse by charging him, because it understands that there are issues that can be investigated.
“The mere accusation cannot be an abuse of authority, because otherwise we would also end up mitigating the Federal Police’s own investigative powers,” he says.
Colin, however, says he believes the sentence is inappropriate in this case. “There is a crime, but it cannot be punished due to parliamentary immunity. This excludes illegality,” he says.
According to Maira Scavuzzi, constitutional lawyer, “the case touches on a critical point of material immunity, which has always been the big discussion.”
He states that, in his interpretation, what is most striking in this case is the context of the discussion. “What it seems is that the deputy is trying to discredit the institution of the PF, especially this delegate, to stop or try to stop the institution in its attacks against the coup acts,” he says.
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WHAT IS PARLIAMENTARY IMMUNITY AND WHAT CRIMES IS VAN HATTEM ACCUSED OF?
Accusations
Federal deputy Marcel Van Hattem (Novo-RS) was accused by the PF of suspicion of slander, when it is falsely said that someone committed a crime, and of insult, when a person insults another to damage dignity, honor and integrity. morality; Corporal Gilberto Silva (PL-PB) is investigated for the same crimes, but has not yet been charged
Constitutional text
The Constitution defines, in its article 53, that deputies and senators are exempt from criminal or civil liability for what they say and how they vote on legislative proposals.
special forum
Once they assume the positions for which they were elected, members of the National Congress are tried by the STF (Federal Supreme Court) for any crime committed during their mandate.
Prison
Congressmen can only be arrested in the case of a flagrante delicto in something classified as non-bailable; In the event of detention, the case files are sent to the Legislative Chamber of the deputy or senator within the following 24 hours, so that the deputies themselves decide whether to maintain or revoke the detention. In addition, the legislator remains in the custody of the Federal Police
Deletion and revocation
A judicial decision can remove a congressman from his mandate on a precautionary basis, and the STF can remove a representative or senator in a collective decision; In addition, reports of crimes can lead to loss of office due to failure to comply with parliamentary decorum, which will be analyzed by the congressman’s Legislative Chamber.
Post-dictatorship
The parliamentary immunity rules were constitutionalized in the 1988 text in view of the recurring practice of the military dictatorship, in force from 1964 to 1985, of revoking mandates from the Legislature, especially those opposed to the regime.
