The degradation of the Brazilian Federal Supreme Court

 

The 1988 Constitution followed the Brazilian tradition of naming Brazil's highest court the Federal Supreme Court. However, this name originated and was inspired by the United States of America, the so-called "Supreme Court of the United States of America."

In other jurisdictions, the correct term is Constitutional Court, as in Italy, Germany, Spain, and Portugal.

This means that a Constitutional Court cannot be a lower court, nor can it act as one.

Unfortunately, this degradation has been occurring in recent years in our Brazil.

Ministers (Justices) of the Federal Supreme Court are not judges or appellate judges of courts with jurisdiction to hear criminal cases.

They can only act to guarantee the constitutional rights of convicted individuals when their conviction violates any of these fundamental rights.

Therefore, the Supreme Federal Court (STF) is, in fact, a Constitutional Court charged with safeguarding the Constitution. In this sense, the verb "to guard" means to ensure that these fundamental, constitutional rights of all of us are rigorously respected.

The Interpretative Error

In an unconstitutional interpretation of Article 102, I, "b" of the Constitution, Supreme Federal Court (STF) justices began to consider themselves competent to act as if they were members of a criminal court.

This provision of the Constitution governs the jurisdiction for initiating criminal proceedings against the individuals mentioned therein, based on their roles: the President and Vice President of the Republic, members of the National Congress, and the Attorney General.

They can only be sued before the Supreme Federal Court (STF).

However, this does not mean that the Supreme Federal Court can convict them, nor their co-defendants brought therein to trial by connection.

It is important to distinguish between jurisdiction to trial (venue) and jurisdiction to convict the defendant.

No defendant can be deprived of the right to appeal to higher courts. Precisely for this reason, the right to appeal is a constitutionally enshrined clause.

Therefore, Article 102, I, "b" of the Constitution does not authorize the Supreme Federal Court (STF) to criminally convict any defendant.

Once a criminal action has been therein instituted, the Judging Panel must ensure the defendant's right to have the case transferred to the first instance (level) of the Federal Court of the Federal District for assignment to one of its Criminal Law divisions.

The right to appeal to higher courts is a substantive right that takes precedence over procedural rules.

Denial of the right of appeal renders the defendant's conviction null and void.

In order to assure this constitutional right to a fair and valid judgment, individuals so convicted are entitled to file a Criminal Review Suit (Ação de Revisão Criminal) before the Supreme Federal Court itself. The object of such suit is to have his or her conviction declared null and void and to be paid for damages.

Let me repeat: a Constitutional Court is not and may not be a Criminal Court.