PRISON OF PARLIAMENTARY

THE LEGAL CONTENT OF PROCEDURAL IMMUNITY OF ART. 53, § 2 OF THE FEDERAL CONSTITUTION

Abstract

Art. 53, § 2, of the Federal Constitution provides for formal immunity to Deputies and Senators, prohibiting, from the issuance of the diploma, that parliamentarians are arrested, except in the act of unbailable crime. A guarantee is given to the exercise of the mandate, essential to the Democratic Rule of Law. However, there has been, recently, the arrest of members of the National Congress, demanding from the Supreme Court interpretations that have not remained stable regarding the legal content of this provision. This research intends to verify the current legal content of the formal immunity prohibiting the imprisonment of federal congressmen, except in the act of unbailable crime. The general objective is to provide a constitutionally adequate answer to this question and to identify the content of this procedural immunity. Specifically, it seeks the meaning that this article had when it was drafted and revised by the constituent legislator and that given to it by the Supreme Court, assessing whether the decisions issued by the Constitutional Court provide an adequate meaning to the text in force. It appears that the content of "unbailable crime", for the purposes of art. 53, § 2, Federal Constitution, covers the unbailable offenses provided for in the Charter of the Republic and also the situations of arts. 322, caput, and 324, I and IV, Criminal Procedure Code, the Legislative House being responsible for the possibility of decreeing preventive detention or precautionary measures other than imprisonment. It was identified that legislative changes inadvertently expanded the content of immunity, requiring its reinterpretation. The research is bibliographical, with literature review and use of decision analysis methodology, with an institutional focus on the Supreme Court.