In the last session as a member of the Supreme Federal Court (STF), Minister Celso de Mello reiterated the understanding that criminal procedural rules should be applied in full to the President of the Republic, without any kind of privilege. The res judicata refers to President Jair Bolsonaro’s appeal against the decision that denied the possibility of giving written testimony in Inquiry 4,831, which investigates an alleged attempt at political interference in the Federal Police. In his vote, in which the President’s appeal was dismissed, the Dean of the STF recalled fundamental aspects of the Republic.
“The idea of a Republic translates an essential value, expresses a fundamental dogma: that of the primacy of equality for all before the laws of the State. (…) Nobody, absolutely nobody, is above the authority of the State’s legal system ”, said Celso de Mello. For the dean, the procedural law is clear. As witnesses, the authorities of the Executive, Legislative and Judiciary Powers can be heard at a place, day and time previously agreed between them and the judge. However, there is no such prerogative in the Criminal Procedure Code, when the authorities are in the condition of being investigated. In this case, the investigation investigates the conduct of Jair Bolsonaro.
“The republican postulate repels privileges and does not tolerate discrimination, preventing the establishment of selective treatments in favor of certain people and preventing serious restrictions to be imposed at the expense of others, due to their social condition, birth, kinship, gender, of friendship, of ethnic origin, of sexual orientation or of a state position, behold, nothing can authorize the imbalance among the citizens of the Republic, under penalty of violating the fundamental value that informs the very configuration of the idea of Republic, which is oriented by the axiological vector of equality ”, said the Dean of the STF.
Minister Celso de Mello also recalled that “the strict observance of the procedural form represents full guarantee of freedom and respect for the rights and prerogatives that the positive order confers on anyone under criminal prosecution”. In other words, the application of the law in the specific case, without inventing a prerogative that does not exist in the law, is not an act of persecution against the President of the Republic, nor does it represent an attempt to restrict his rights and guarantees as investigated.
“The protection of freedom, in this context, represents an insurmountable constitutional limitation to the State’s persecutory power, not least because – no one ignores it – the criminal process qualifies as an instrument to protect the fundamental rights and guarantees of those who are submitted, at the initiative of the State , to acts of criminal prosecution, whose practice is only legitimate within an insurmountable circle and predetermined by the restrictions set by the Constitution of the Republic ”, recalled Minister Celso de Mello.
In his vote, the Dean of the STF acknowledged that, in recent years, there have been monocratic decisions by the Justice authorizing authorities, even as investigated, to give written testimony. The Attorney General’s Office (PGR) claimed that, due to the principle of equality, the same treatment should be granted to President Jair Bolsonaro.
Minister Celso de Mello recalled a fundamental reality. “The principle of isonomy is precisely aimed at avoiding the granting of unjustifiable privileges – and nonexistent by law – for a certain group of people or for certain public authorities, even if it is the Head of State,” he said.
This teaching by Minister Celso de Mello, in his last session of the Supreme Court, should serve as a reflection for the entire Judiciary, in its various instances. Often, the principle of equality is applied in a distorted way. The improper concession of a privilege in a case becomes a pretext for repeating and expanding the error. The principle of equality guarantees equal rights, and does not extend privileges. The criterion is always the law.