Case Summary and Outcome

The Brazilian Supreme Court (S.T.F.) dismissed a criminal complaint filed by Luiz Inácio Lula da Silva, the former President of Brazil, charging Senator Ronaldo Caiado with libel and slander for publishing on Facebook that Silva was a “bandit” who promoted democratic instability, and accusing him of several crimes. The S.T.F. dismissed the complaint based on parliamentarian immunity conferred by Article 59 of the Brazilian Constitution.

Note: This case is nearly identical in both factual background and legal reasoning to another Brazilian case. The principals are the same, but the social media posts differ in date and content. The review of the counterpart case, Lula v. Caiado I, may be found here. 

Facts

On February 25, 2015, Senator Ronaldo Caiado posted on his Facebook profile the following speech: “[Former Brazilian President] Lula da Silva acts as a bandit. And a weak bandit. Same as when he instigated metallurgists to protest and further slept in the living room of Chief Officer Tuma. Lula and his folks were caught when they stole Petrobrás and now he threatens using the Stedile’s and Rainha’s MST troops to promote pimps. Lula aims to promote democratic instability like in Venezuela where the dictator Maduro releases his collectives.” Other allegations suggested that Silva committed several crimes such as money laundering and embezzlement.

Former President Lula filed a criminal complaint based on this speech, alleging that such statements amounted to accusations of the felonies of criminal association, money laundering, embezzlement, and the crime of attempt to change democratic order using violence or serious threat. He alleged, moreover, that the content of the speech showed slanderous intent, which authorized the opening of criminal proceedings.

Senator Ronaldo Caiado denied the felony, as there was no intent to slander as required by Article 138 of Brazilian Criminal Code, and further claimed that he had parliamentarian immunity as provided by Article 59 of Brazilian Constitution.

The Attorney General had moved to dismiss the criminal complaint due to the constitutional parliamentarian immunity.

Decision Overview

J. Edson Fachin dismissed the criminal complaint on December 1, 2015, based on the parliamentarian immunity conferred upon Senator Ronaldo Caiado.

The S.T.F. stated that parliamentarians have material immunity when exercising their public function. According to the Court, this constitutional privilege serves as a democratic guarantee of the independence of legislators as peoples’ representatives, because it reinforces their freedom of expression and ability to manifest thoughts while they execute their public duties. If a concrete case demonstrates the legislator’s motivation that incurs this privilege (that is, granting to parliamentarians the freedom to freely exercise their duty), there is no criminal or civil liability.

The fact that Senator Ronaldo Caiado’s speech was given outside of the Congress was not relevant; actually, the S.T.F. opined that the immunity covers parliamentarian expression since such expression is connected to the parliamentary mandate. As the parliament has within the scope of its powers control over the public budget and the defense of public interest, any speech or expression given by a senator or a deputy in this sense will be covered by the constitutional immunity, which was the case here. The parliamentarians, whenever expressing themselves pursuant to their public mandate, incur an “additional protection to their freedom of expression,” according to the S.T.F.

Finally, J. Edson Fachin declared that it is not important whether the words delivered are potentially offensive or not: between a parliamentarian frightening any liability due to his or her words and one free to express things related to his or her public job, the Constitution has chosen the latter. Based on these reasons, he dismissed the criminal complaint.