INTERPRETAÇÃO E APLICAÇÃO DO FORO POR PRERROGATIVA DE FUNÇÃO: LIMITES CONSTITUCIONAIS E QUESTÕES PROCESSUAIS

Abstract

This paper examines the theoretical and practical aspects of the jurisdictional forum by function prerogative in Brazil. It explores how this power can be applied compatibly with the Federal Constitution by taking a comprehensive and qualitative legal approach. The research uses an extensive bibliographic review of specialized legal literature, legislative analysis, and an in-depth interpretation of applied jurisprudence. For this purpose, the study collects and analyzes key Supreme Court judgments. These include Complaint No. 473/1962, the adoption of Summary No. 394/1964, and its later cancellation in Point of Order in Inquiry No. 687/1999. It also covers the current standards set by the Point of Order in Criminal Action No. 937/2018 and the understanding in Habeas Corpus No. 232,627/2025. The investigation reveals that distortions in applying the institute primarily stem from judicial interpretations that exceed constitutional norms. Applying Konrad Hesse's theory on constitutional change limits leads to two distinct positions. The first holds that replacing the application of the prerogative from enactment to actual office exercise is contrary to the constitutional text and indefensible as a constitutional change. The second position challenges the restrictive interpretation that ties the guarantee of special jurisdiction to a direct causal link between the alleged crime and the office held by the accused. This perspective maintains that, although constitutional change may be debated, factors such as historical application, the rule’s intended purpose, the original constituent’s intent, and logical consistency with the initial enactment all support maintaining the broader application. The lack of coherence in reducing the rule’s incidence undermines the legitimacy of such modifications, which should be addressed through constitutional amendment. Additionally, the study analyzes procedural challenges in applying connection and containment rules to cases before functional jurisdictions. The paper highlights issues with Article 80 of the Code of Criminal Procedure, which permits judges to separate cases after joinder at their discretion. This discretionary power, often resulting in the transfer of cases to lower courts, risks violating the principle of the natural judge. Such post hoc changes in jurisdiction occur without clear criteria for separation. The paper further explains that procedural consolidation may undermine concurrent constitutional jurisdictions. It asserts that infra-constitutional rules regarding connection and continuity cannot alter jurisdictions explicitly defined by the Constitution, making procedural separation a mandatory requirement. The paper concludes by recommending either mandatory dismemberment or mandatory procedural reunion, except when such reunion would infringe upon competencies within the same constitutional hierarchy