Parliamentary immunity is formed by a set of guarantees given to parliamentarians (members of the Legislative Power) so that they can exercise their functions without violations or abuses by the Executive and Judiciary Power.
With the prerogatives of parliamentary immunity, these politicians have the freedom and independence to exercise their activities without running the risk of being prosecuted.
All standards for the protection of congressmen are provided for in the Brazilian Federal Constitution.
The law also determines that Deputies and Senators, during their term, cannot be arrested, except for committing a crime that cannot be bailed out. In this case, the decision to arrest the congressman is up to the Chamber of Deputies or the Federal Senate, depending on which House the politician belongs to.
Another tool provided for in the Constitution and which acts as an immunity to parliamentarians is the privileged forum. In this mechanism, the congressman can only be investigated and arrested after a decision taken directly by the Supreme Court.
Learn more about the meaning of Privileged forum.
Parliamentary immunity is not a right of the individual, but of the position held and, for this reason, it is a prerogative that cannot be waived by the parliamentarian.
According to the law, parliamentary immunities are divided into two categories: Material Immunities and Formal Immunities.
Material Parliamentary Immunity
In this case, parliamentarians are exempt from criminal and civil prosecution as a result of opinions, speeches or votes given in the context of their political activities.
Article 53 of the Constitution, for example, makes it clear in its wording that "Deputies and Senators are inviolable, civilly and criminally, by any of their opinions, words and votes".
Deputies and Senators are immune throughout the Brazilian territory, but councilors are only protected when opinions and speeches are made within the limitations of the municipality they represent.
However, material immunity varies according to the situation, and may be absolute or Relative.
Absolute Material Immunity: when the parliamentarian executes his freedom of expression inside the National Congress.
Relative Material Immunity: when the parliamentarian executes his freedom to opine, speak and vote outside the National Congress. In this case, it will be necessary to verify whether the congressman's statement is in accordance with the exercise of his function.
Formal Parliamentary Immunity
Formal immunities are related to the privileged jurisdiction and arrest procedures of the parliamentarian.
According to this prerogative, the parliamentarian should not be arrested, except when caught red-handed for committing an unbailable crime.
In this case, the investigation and judgment process must be carried out by the Supreme Court.
Only Deputies and Senators have the right to formal immunity. councilors do not enjoy this prerogative, possessing only material immunity.