The Public Prosecutor’s Office (PGR) has asked the STF to clarify and adjust the application of the new interpretation of the preferred forum in criminal proceedings involving mandated authorities. The request was presented by the PGR, Paulo Gonet, within the framework of a declaration embargo within the framework of a habeas corpus which deals with the definition of the competence to judge Senator Zeca Marinho (Podemos), investigated for alleged practice of “rachadinha”.
In the appeal, the PGR maintains that the thesis recently established by the plenary of the STF – according to which “the prerogative of the court to judge offenses committed in the exercise and by reason of the functions continues even after dismissal” – can produce effects contrary to the objectives declared by the Court, such as the speed and stability of investigations. According to the public prosecutor, the automatic application of the new guidelines has caused “instability for the judicial system” and “concrete risks of setbacks in investigations”.
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Decade of the STF, Minister Gilmar Mendes is rapporteur of the file
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Senator Zeca Marinho is accused of carrying out alleged “rachadinha” practices when he was a federal deputy
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Attorney General of the Republic, Paulo Gonet
STF
The case was analyzed by the STF plenary during a virtual session held between February 28 and March 11, 2025, under the report of Minister Gilmar Mendes. At the time, the Court decided that the special forum must be defined based on the link between the facts investigated and the exercise of the position at the time of the commission of the alleged crime, regardless of whether or not the agent still occupies the position at the start of the investigation. The agreement entered into force immediately for ongoing processes, with the exception of acts already accomplished.
Asking for clarification, the PGR states that the change has generated “procedural ups and downs”, with successive changes of jurisdiction between instances, which can delay the progress of criminal actions and compromise the effectiveness of prosecutions. In the document, the agency emphasizes that the current model “is counterproductive, because it causes fluctuations in jurisdiction during criminal cases and brings instability to the judicial system.”
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The Attorney General also cites extracts from the rapporteur’s vote which recognize the problems posed by these changes of forum. In one of the points reproduced, the vote specifies that frequent travel “constitutes one of the greatest problems of prerogative, likely to hinder and delay the progress of investigations and criminal actions”. For the PGR, this scenario can open space for defensive strategies intended to modify the judgment responsible for the case, depending on the procedural moment.
In embargoes, the public prosecutor does not request a re-examination of the merits of the decision, but a more precise delimitation of its effects. The intention, according to the organization, is to avoid processes already advanced in first instance being referred to the STF, which could lead to “procedural discontinuity”, a repetition of acts and a risk of prescription. The PGR maintains that, at least in cases where the investigation has already been completed, jurisdiction remains with the court that conducted the proceedings.
Supposedly “cracked”
The investigation against Senator Zeca Marinho has its origins in events that occurred when he was a federal deputy. According to the investigation, commissioned civil servants and employees linked to the regional leadership of a political party were forced to transfer part of their salary — around 5% — under penalty of dismissal. This practice is known as “rachadinha” and, according to the public prosecutor, can constitute the offense of concussion.
The investigation was opened at the STF in 2013, but its jurisdiction has evolved over the years due to the evolution of the situation of the person indicted and the evolution of case law on the preferred forum. After resigning from his mandate as deputy and assuming other public functions, the case went through different courts, until reaching the Federal Court of First Instance.
With the election of Zeca Marinho to the Senate, in 2019, the defense again requested the process of return to the STF, under the argument of the continuity of the elective mandate. The request was rejected by the lower courts, giving rise to a habeas corpus analyzed in plenary. The final definition of where the senator will be judged now depends on the clarifications provided by the Supreme Court on the limits and practical application of the new thesis of the forum by prerogative of function.
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