O impeachment brasileiro e a incompatibilidade com o julgamento político

Resumo

The text aims to analyze the impeachment institute in Brazil. For that, the focus is the impeachment of the President of Brazil. Different from other legal realities, the Brazilian legal system foresees specific and determined conduct that constitute the so-called crime of responsibility. The President is prosecuted and judged by the components of the Legislative Branch. The Brazilian Judiciary guarantees the observation of due process of law and the realization of the right to a full defense. The problem that arises is of having specific and determined factual support and a political judgment. The political judgment is neither technical nor does it observe the legal elements of the norm and the concrete case; on the contrary, it is based on public opinion and the direct or indirect interests of the judges themselves. Thus, one can have a decision condemning a President without having carried out the conduct described in one of the factual supports. A decision may also be rendered absolving the President having engaged in the conduct described in one or more of the facts. In these two cases, we will have a decision that violates the constitutional and under-constitutional text, without being able to challenge it. This decisively affects the principle of the rule of law, weakening it is a normative force. For this reason, changes are necessary in the sense that if the establishment of conducts in factual supports remains, the judgment of the President should be by Judiciary; if the trial by Legislative Branch is chosen, the conducts foreseen in the factual supports should be vague, indeterminate, and generic to the point of fitting into political judgments, which contain interests. The method used in the research was the analytical one, due to the need to understand the positive and negative aspects of the current configuration of the impeachment institute in Brazil. Since this is a theoretical analysis, the research technique used was bibliographic, since the two examples of impeachment took place from judgments in the Legislative Branch.