Yesterday, the Federal Supreme Court defined a constitutional boundary for freedom of expression: there is no absolute right.
As a result, it limited the immunity of parliamentarians to manifestations, acts and statements linked to the mandate.
There is no legal protection for deputies and senators who use and abuse it for actions punishable as a crime.
The argument was presented by Judge Gilmar Mendes, when reporting a case of injury and defamation against Senator Jorge Kajuru, from Podemos de Goiás, accused of offenses on social networks by two opponents from Goiás, Vanderlan Cardoso, a senator for the PSD, and the former federal deputy Alexandre Baldy, from the PP.
“Although broad freedom of expression is guaranteed,” he said, “in cases of criminal, fraudulent or cunning abuses or uses of this prerogative, [a imunidade] for the offense to third parties or to incite the commission of crimes, it can be concluded that the immunity clause does not apply”.
The senator is now a defendant. In October 2020, the rapporteur of the criminal complaints was Celso de Mello. He recommended the filing, as he understood that Kajuru’s demonstrations on social networks were related to the typical supervisory role of parliamentarians and, thus, would be covered by parliamentary immunity.
Mello retired before the conclusion of the judgment in the Second Panel of the STF, which took place yesterday with the decisive votes of Gilmar Mendes, Edson Fachin and Ricardo Lewandowski. Mello’s thesis on broad parliamentary immunity, including on social media, was defended only by André Mendonça.
Kajuru is subject to other lawsuits. In January, the Attorney General’s Office asked the Supreme Court to open an investigation against the senator for “serious accusations” against Judge Gilmar Mendes in an interview with Jovem Pan radio, in mid-2020.
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With yesterday’s decision, the Supreme Court not only advances the jurisprudence on the inexistence of an absolute right to freedom of expression, but also reaffirms limitations on parliamentary immunity.
In practice, the judges re-edited the message to Congress and the government conveyed in the conviction of deputy Daniel Silveira, from the PTB in Rio, two weeks ago. He was sentenced to eight years and nine months in prison for crimes against the democratic regime and threats to Supreme Court judges and their families.
The deputy received a pardon from his friend and ally Jair Bolsonaro, but he should be ineligible and prevented from holding public office or function. As the court has not yet ruled on Bolsonaro’s pardon, Silveira’s case continues.
Yesterday, he was punished again by Judge Alexandre de Moraes: a fine of R$ 405,000 “for disrespecting” successive court orders, including the determination of permanent use of an electronic anklet. The decision, noted Moraes, has “no relation to the granting of pardon”.
While the Supreme Court, in Brasília, decided on the case of Senator Kajuru and fined Deputy Silveira, in the central forum of São Paulo, Judge Luciana Biagio Laquimia ruled on a lawsuit filed by Abraham Weintraub, another Bolsonaro ally, former Minister of Education and now running for governor of São Paulo.
Weintraub claimed compensation for moral damages from Guilherme Boulos, candidate for federal deputy for the PSol. He alleged offenses on social media.
The judge of the 17th Civil Court refused the request, on the grounds that Bolsonaro’s former minister “has a public and very notable reputation for reputing his opponents to be ‘tramps’, such as the ministers of the Federal Supreme Court, thus expressing himself publicly”. At a ministerial meeting in April 2020, Weintraub said the following: “For me, I would put all these bums in jail. Starting at the STF.”
The judge wrote yesterday: “The author [Weintraub] maintains a standard of public conduct that cares little for respect for the niches of its peers and for the respectability of justice, of which the Supreme Court symbolically represents the apex.” It ordered him to pay the costs of the process and the lawyers of the political opponent.
It was a journey of public messages from the Judiciary. It cannot be said that they were coordinated. However, in Praça dos Três Poderes, in Brasília, it is difficult to find someone who believes in coincidences.
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