ARE CUNHA AND RENAN CASES EQUAL?

If Eduardo Cunha* was suspended from his Office by the Supreme Court (STF), Renan Calheiros** shouldn’t be also?

* Eduardo Cunha was a Deputy and President (or Chief Speaker) of the Chamber of Deputies in Brazil (our House of Representatives).
** Renan Calheiros is a Senator and President of the Senate.

According to our Constitution and laws, should they have been suspended after all?

I don’t know exactly. I had a lot of work gathering all references and information to make this comparison… So, let’s see. First, the order of the facts, then I’ll try to see what are the Constitution and the Law rules in each case.

CUNHA’S CASE

2015, March 9th – the first inquiry is filed against Eduardo Cunha at the Supreme Court, (Inquiry no. 3983).

2015, August 20th – the Prosecutor General of the Republic – PGR (similar to United States Attorney General) files a complaint against Eduardo Cunha at the Supreme Court in the Inquiry no. 3983.

2015, October 13th – PSOL and REDE political parties, filed a petition at the Ethics Commission of the Chamber of Deputies to oust Deputy Eduardo Cunha from Office. The main reason (among countless) was that Cunha lied to Congress about the existence of his accounts in Switzerland Banks.

2015, October 15th – the second inquiry is filed against Eduardo Cunha (Inquiry 4146), which was filed by the Prosecutor General of the Republic, Rodrigo Janot, based on evidence that Eduardo Cunha did had accounts in Switzerland Banks. On the same day, it was filed a new impeachment petition against President Dilma Rousseff written by the lawyers Hélio Bicudo, Miguel Reale Jr. and Janaina Paschoal, a review of their original petition filed in September 2015.

2015, December 2nd – PT party announced that it would vote for the acceptance of the process for Eduardo Cunha’s withdrawal from Office at the Ethics Committee meeting scheduled for December 8th, 2015.

After that, in the same day, December 2nd, 2015, Eduardo Cunha (Chief Speaker) accepts the request for President Dilma Rousseff’s impeachment of a petition filed one month and a half earlier (to my point of view an obvious backfire).

2015, December 16th – the PGR files a Precautionary Action, or Injunction, (AC no. 4070) at the Supreme Court, requested by PSOL and REDE parties, which calls for the immediate suspension of Eduardo Cunha’s mandate as a representative and consequently his suspension as Chief Speaker of the Chamber of Deputies. Briefly, the urgency request was based on 11 motives, almost all involving Eduardo Cunha’s maneuvers to disrupt all processes he was the defendant, the withdrawal process at the Ethics Committee and also the STF’s criminal Inquiries.

It is worth mentioning that Eduardo Cunha is known to be the “King of Maneuver” in Congress, by the use of any subterfuge to reverse decisions that are against his own interests, like the case of votes on the Criminal Liability Age Reduction, and the Political Campaign Financing by Corporations (mini Political Reform, which was already ruled unconstitutional by the STF) and even meddling in the affairs of the Ethics Committee’s Board.

2016, March 3rd – the Supreme Court accepted the complaint based on the Inquiry No. 3983 and Eduardo Cunha becomes a defendant.

2016, March 7th – the PGR files a complaint against Eduardo Cunha based on the Inquiry No. 4146 at the Supreme Court.

2016, May 3rd – REDE Party, represented by none other than Daniel Sarmento Professor of Constitutional Law at UERJ, files a Claim of Non-Compliance with a Fundamental Precept (ADPF No. 402). Mainly based on Article 86, paragraph first, Item I, of the Constitution; the action asks a Supreme Court ruling that a person who is a defendant in a criminal prosecution cannot hold position in any Office of the Presidency of the Republic’s succession line, which would be Presidency of the Chamber of Deputies, Presidency of the Senate and Presidency of the Supreme Court, in this order. In my view, this ADPF has two main objectives: one, make such obstacle opposed to any citizen (erga omnes and binding effect); and two, legal maneuver to make a new request for Eduardo Cunha’s immediate suspension as Chief Speaker (but not from his mandate as representative), since Justice Teori Zavascki had not yet decided about the Injunction filed on December 16th, 2015.

2016, May 5th – almost 6 months later, the STF’s Full Court rules, in the AC 4070 injunction, to finally suspend Eduardo Cunha from his mandate as well as Chief Speaker. Since the ADPF 402, in which Justice Marco Aurélio was the rapporteur, was scheduled to this day, Justice Teori felt compelled to speed up his decision in the AC 4070 case where he was the rapporteur. So he scheduled the AC 4070 for this day because the same kind of decision could be ruled before in a newer process (ADPF 402).

2016, June 22nd – The Supreme Court accepted the complaint based on the Inquiry No. 4146 and Eduardo Cunha turns defendant again.

2016, September 13th – the Chamber of Deputies decides do expel Eduardo Cunha from Office.

A Precautionary Action, or Preliminary Injunction, has at least two essential requirements which are the plausibility of the invoked right and danger in delay (Civil Procedure Code – CPC/73, Art. 273, item I or CPC/2015, Art. 300+). The preliminary injunction rule is an exception to the constitutional due process of law’s right of defense principle. It’s a pre-trial motion so that the judge can issue an emergency measure’s order without hearing the other party (no possibility for the defendant’s right of defense). This is why the Preliminary Injunction order must be grounded on those two requirements above.

The plausibility of the invoked right (or “likelihood of success on the merit of the case”) means that, in a summary and preliminary analysis, all elements, evidences and other clues points to a possibility that the right claimed exists in practice, that the applicant’s claim have strong support and great likelihood of being granted at the end of the process.

The danger in delay means that the right the applicant seek protection can perish or there’s a great risk of suffering serious and irreparable damage if an urgent measure is not taken to prevent it from happening. Therefore the preliminary injunctions can be seen as a preventive measure, a protective order. Prevents the right claimed from being harmed or lost since the action would lose its object and no justice could be achieved if there’s no right to be protected.

In Eduardo Cunha’s case, the plausibility of the invoked right – given the overwhelming evidence and charges against him both in the judicial and the administrative (withdrawal process) spheres – have at least 2 out of 5 foreseeable reasonings from Constitution’s Article 15 possibilities: a future criminal conviction or administrative misconduct – the latter which was eventually confirmed by him being withdrawn from his mandate as Representative.

Well, the danger in delay reasoning is even easier to understand, I think. The existence of an Inquiry in progress and then a second Inquiry, No 4146 of October, starting almost at the same time of the Withdrawal Process in the House of Representatives. The consequence of any of those processes, if confirmed, would be the loss of the mandate as Representative. If this wasn’t enough, Eduardo Cunha was using the power of his Office as Chief of the House of Representatives to protect himself, disturbing processes and obstructing justice – How often did he interfere in the formation and progress of the Ethics Committee of the House of Representatives? – That is, if this precautionary urgency requirement had been complied within a reasonable time (for me, the urgency is something that is decided in one week maximum, not 6 months), perhaps Cunha had been ousted more quickly by the Ethics Committee, which would save us from his maneuvers and wrongdoings in the Congress. It is possible that neither the coup d’etat (impeachment) had gone through ridding us from this institutional chaos Brazil is living in. Therefore, it would be more reasonable if Eduardo Cunha had been ousted by order of the ADPF 402’s preliminary injunction, and not by the almost 6 months late AC 4070’s preliminary injunction.

Could Deputy Eduardo Cunha have been removed by Justice Teori at the request of the AC No. 4070 (if it was granted within a reasonable time – one week maximum)?

Some say that the answer should be NO, like Prof. Gamil El Föppel Hireche from UFPE. His explanation is quite interesting – I recommend his article. I will try to summarize it in two main arguments, one of constitutional order and other about criminal procedure.

Professor Hireche states that the appropriate protective mechanism to ensure the due course of the criminal proceedings would be pretrial detention, which is an exceptional measure. However, Constitution’s Article 53, paragraph second states that Congress members cannot be arrested during the mandate, except if found in the act of committing a non-bailable crime; or, of course, after the final criminal sentence (Article 55, item VI) – almost repeating the text of the Article 5th, item LVII’s presumption of innocence principle. Therefore, we can define it as some kind of “parliamentary immunity”.

This “immunity” brings us to his second argument. Since congressmen is exempted from pretrial detention as a precautionary measure while in office, “a replacement measure could not be adopted in exchange” like the suspension of the civil service exercise provided by the article 319, item VI, of the Criminal Procedure Code – CPP (again, I recommend reading Prof. Hireche’s article linked above).

I understand Prof. Hireche’s arguments, but I tend to disagree. I’m more aligned to Prof. Lenio Streck’s reasonings, which seems more consistent with the integrity of the law to me. Briefly, the “immunity” is a prerogative granted to the Office position to protect the Parliament institution, not the individual. So, if a person uses those prerogatives’ powers for its own benefit precisely to obstruct the due process in which he is a defendant, the preliminary injunction (Article 319, item VI) is needed and justified as a preventive procedural measure, and not as a punitive measure. So it’s aimed to protect both the Representative Office and the due process of law from wrongdoings. Here is an excerpt of his argument:

“Note that the lack of decorum by prerogatives abuse is a hypothesis of mandate loss provided by the Constitution, Article 55, item II and paragraphs 1º and 2º. And who decrees the mandate loss is the House of Representatives. But, why does the Supreme Court, who must judge a deputy for any crime committed (article 53, paragraph 1º), could not order a precautionary measure to ensure due process in the case where the parliamentary prerogatives abuse involves itself in the obstruction of his own inquiry and judgment process? Precautionary measure is not the legal protection, but the process guarantee. The precautionary withdrawal is not a punitive measure, is not even subject the same way as the punishments system. It is a procedural measure to ensure the due process and not to be confused with the merits.”

So the answer to the above question is YES.

Eduardo Cunha could have been removed immediately from Office (and as Chief Speaker) based on the criteria of the preliminary injunction (Precautionary Action or Measure) presented above (Article 273, item I, of the Code of Civil Procedure of 73 combined with Article 319, VI, of the Criminal Procedure Code).

Since Justice Teori’s decision was wrong, because it was too late, could Eduardo Cunha have been ousted by Justice Marco Aurelio’s decision at the ADPF 402’s preliminary injunction request? (if, of course, granted in a reasonable time – let’s say, a week)

This is a tricky answer, some say yes, others no…

The ADPF 402 is mainly based on Constitution’s article 86, essentially the part that deals with the suspension of the President regarding cases of common crime, but for a maximum period of 180 days.

This article from Prof. Pierpaolo Bottini, with which I agree, has a deeper explanation of the ADPF 402’s merits.

First, we must draw the difference between: common crime committed before or in the course of the mandate.  Article 86, paragraph 4, states that any common crime criminal lawsuit is suspended through the mandate’s term for a crime committed before it. That is, a citizen can exercise the Presidency of the Republic even if he is a defendant in a criminal lawsuit for crimes committed before his Inauguration. After the Inauguration the existing process, and all its deadlines, is suspended until the end of the mandate.

In the case of crimes committed during the term (Article 86’s head), there is another restriction, it cannot be any common crime, but only those “related to the performance of his functions as president. Beyond that, the criminal charge must be accepted by two-thirds of the Chamber of Deputies so that, only then, the complaint can be filed and go to trial at the Supreme Court. In this case, the individual is suspended from Office as President for up to 180 days (Article 86, Paragraph 2). After the 180 days period, he/she can come back to Office even if the trial has not ended. That is, if the STF cannot end the trial in 180 days, the individual-defendant will regularly exercise the Presidency Office.

What does article 86 of the Constitution tells us then? That there is only one possibility for an individual accused of a common crime to be suspended from Office as President: as long as he’s a defendant in a criminal lawsuit related to the exercise of the President function and up to 180 days.

Well, since ADPF 402 is intended to extend this rule to other positions in the presidential line of succession (the Chief Speaker, Senate and Supreme Court’s Presidency), then the criteria should be at least the same as those applied to the Presidency Office, right?

So, the answer to the above question is: I have my doubts, but I would say NO.

In Cunha’s Case, I believe that even if the danger in delay element of the precautionary measure were legitimate, it would lack substance regarding the plausibility of the invoked right element, as I tried to explain above. After all, I might be wrong, but the ADPF 402 seemed to me a subterfuge to circumvent Justice Teori Zavascki’s inertia at the AC 4070 and ensure the same end through other means.

RENAN’S CASE

2007, August 6th – an inquiry is filed at the Supreme Court against Renan Calheiros, Inquiry No. 2593.

2013, January 28th – a complaint is filed by the PGR against Renan Calheiros on the Inquiry No. 2593.

2016, November 3rd – there was a majority of six votes, out of eleven possible, in the Full Court of the STF in favor of ADPF 402, but the process was suspended because Justice Toffoli requested the case docket for examination.

2016, December 1st – almost 4 years later the PGR’s complaint is accepted by the Supreme Court and Renan Calheiros finally becomes a defendant.

2016, December 5th Prof. Daniel Sarmento, representing REDE party, files the petition No. 69829 in the ADPF 402’s process, which asks for the immediate suspension of Senator Renan Calheiros as Senate President at a preliminary injunction. In addition to the ADPF 402’s main merit its initial petition request also asked for Eduardo Cunha’s immediate removal as Chief Speaker, since he was a defendant and Lower House Chief Speaker at that time: this request had lost its object due to the STF’s decision in the AC 4070 process. Therefore, the Petition No. 69829 claims mainly two arguments: one, that, even though the trial is not finished yet, the majority of six justices had already been achieved in favor of the case merit; two, the subsequent event (the above decision of December 1st, 2016) took another congressman, Renan Calheiros, to the same position that Eduardo Cunha displayed. Thus, this new petition reiterates the initial ADPF 402’s preliminary injunction request replacing Eduardo Cunha for Renan Calheiros to order his immediate suspension from Senate Presidency.

2016, the same day: (this is what we can call urgent!) Justice Marco Aurélio accepts the request and decided monocratically (i.e. individual decision) that Renan Calheiros should be suspended from Office as Senate President. This order was ignored by the Senate’s Board in the aftermath, which would be a crime of disobedience (article 330 of the Criminal Law Code), but this is not important for this article’s debate.

2016, December 7th – Justice Marco Aurélio’s monocratic decision goes to the STF’s Full Court deliberation and all other justices decided to partially endorse it, i.e., Senator Renan Calheiros can remain as President of the Senate, but no longer in the Presidency succession line.

Senator Renan Calheiros could have been removed from the Senate Presidency by Justice Marco Aurélio in the ADPF 402’s preliminary injunction?

NO. For several reasons, the main one is the ADPF 402’s initial petition grounds weakness to justify granting of the main merit request (explanation above), the absence of the injunctive relief’s precautionary character (after all, it is based on an Inquiry from more than 9 years ago!) and, mainly, because I guess the principle of presumption of innocence (Article 5th, Item LVII of the Constitution) still prevails in our legal system. I am not even addressing the matter that it was an order given by a single Justice.

Could the Supreme Court have kept Renan Calheiros’s Office as Senate President, but ousted him from the Presidency succession line?

NO. As stated here by Prof. Renato Ribeiro de Almeida, the Lower House, the Senate and the Supreme Court’s Presidents are not in the succession line to the Presidency of the Republic, only the vice-president is. According to the Constitution, those positions will replace the President, not succeed him. This replacement is a precarious succession, only temporary. Moreover, the Constitution does not provide such severe criteria for the President Office itself. So, how can be made such obstacle to other positions in the succession (or replacement) line by an ampliative interpretation of a restrictive constitutional rule? Isn’t it a disproportionate overuse of analogy? It does not sound reasonable to me.

For further reading on the Renan Calheiros case I recommend this article showing several positions, also this other one from Prof. Lenio Streck.

Answering this post’s title main question: Eduardo Cunha and Renan Calheiros’ cases are not equal.

The former should have been suspended immediately from Office as Deputy because his case met all the precautionary measure’s requirements needed by the civil and criminal procedures.

The latter couldn’t, because the suspension request was based on an action still awaiting for final judgment (ADPF 402), which is based on weak grounds using an ampliative interpretation of a restrictive constitutional rule, and the case did not meet the requirements for the granting of an injunctive relief.

Thus, just like Prof. Bottini said, I also think REDE party’s concern addressed by the ADPF 402 is admirable. But I must say that this is an opinion using a political lens to make an analysis about this situation.

If analyzing this using a legal lens, I must say I cherish for the stability and respect of the political institutions, especially our Constitution. Our Constitution’s coherence and integrity depend on the respect given to its limits settings. Therefore, I am against the amendments sought by ADPF 402 using the Judiciary way, just because it compromises several Fundamental Rights and Guarantees’ Principles with no regard to the Democratic way.

For a fair legal system, the ends cannot justify the means.

Like Master Paulo Bonavides once said: “there’s no instrument nor mean to assert the democratic survival of institutions beyond the Constitution.”

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