Imunidades parlamentares: análise sobre a natureza jurídica do instituto, sua legitimidade e alcance na órbita penal

Abstract

The dissertation examines the institution of parliamentary immunities in Brazil, from its origins in the Bill of Rights to the 1988 Constitution, focusing on the legal nature of material immunity. Diverging from the jurisprudence of the Federal Supreme Court, which tends to consider inviolability for opinions, words, and votes as a cause for exclusion of criminality, the thesis argues that it is a functional cause for exemption from punishment. This dogmatic definition preserves the typical and unlawful nature of the conduct, allowing for the accountability of co-authors without a mandate, in line with Precedent 245 of the STF. The application of the institution combines the theories of Blackstone and Stuart Mill, granting absolute protection within the parliamentary chamber and relative protection in external environments, conditional on the functional link with the mandate. The analysis of paradigmatic cases, such as the arrests of Delcídio do Amaral and Daniel Silveira, demonstrates that the prerogative is not absolute, not covering permanent crimes that are not bailable or acts against the Democratic Rule of Law. By symmetry, federal rules extend to the state and district levels, while at the municipal level, protection is restricted to material immunity, covering statements on the Internet when linked to the oversight of the Executive. It can be concluded that immunities aim to guarantee the independence of the Legislature and do not constitute personal privileges or a shield for impunity.