A very common theme in Administrative Law and also in the scope of Constitutional Law, but with intense repercussions in Criminal Law and Criminal Procedure is the one that deals with the responsibilities of the Mayor.
Hely Lopes Meirelles, a great jurist and teacher, professor and lawyer, versed in administrative law, a discipline in which he became an icon of Law, was the author of the project that culminated in the well-known Decree-Law 201/1967 and which deals, exactly of the spheres of responsibility of the Municipal Mayor.
In 1977, ie 10 years after the entry into force of the decree-law, Professor Hely in an article published in the Administrative Law Magazine of Rio de Janeiro pointed a major issue that permeated the jurisprudence of the Supreme Court at the time: the “Spirit of the decree-law” intended that the mayor should only be subject to a criminal offense for the crime of responsibility provided for in Decree-Law no. 201/67, while in office, or if, even after leaving the post – for any reason whatsoever – the former Mayor would still be subject to the penalties of the Decree-Law for facts committed during his term of office .
To refresh the reader’s memory, it is worth remembering first that there are three spheres of responsibility of the Prefect: criminal; political-administrative and civil, and criminal responsibility is subdivided into crimes of responsibility, functional crimes, crimes of abuse of authority, common and special crimes and criminal offenses.
In the matter posed by Master Hely, we will only address the crimes of responsibility set forth in Decree-Law 201/67, to question its incidence to mayors and substitutes who are out of office .
As Hely Lopes Meirelles reminds us , “the mayor is not a civil servant; is a political agent, in charge of the executive branch of the local government ” and, therefore, we must bear in mind that in the performance of his duties he may be subject to criminal, political-administrative or even civil offenses, giving rise to sanctions which will be applied in separate and independent processes.
In this sense, we must also emphasize that the mayor’s responsibility is made in different processes and judgments, according to the nature of the infraction, and for a crime of responsibility and common functional crime, the Mayor will respond to the common criminal justice with jurisdiction in the municipality ; for political-administrative infraction, will respond before the City Council, by the special process; and, finally, by civil action resulting from a functional act, responds to the competent civil court.
The Mayor may also respond, under a writ of mandamus, against administrative action, before the common justice, with jurisdiction in the municipality; for common but non-functional crimes, shall be accountable to the ordinary criminal justice competent for the prosecution of the offense; for special crimes, responds to the corresponding special justice and in civil actions not resulting from functional acts, responds to the ordinary civil court, by the appropriate procedure.
In this state of things Meirelles in 1977 stated that “the mayor and his substitutes would respond for a crime of responsibility in or out of office, regardless of the form of investiture (elective or appointment) and the character of substitution (provisional or definitive) , because the offense is merely functional, not political-administrative . “
Such a statement was necessary since, since the publication and validity of Decree-Law 201/67, there has been an understanding of the Federal Supreme Court, that the mayor is only subject to prosecution for a crime of responsibility provided for in Decree- law n. 201/67, while in the exercise of his position , this position is criticized by Hely Lopes Meirelles himself who stated that with such an understanding was created an ‘extinguishment of punishment’ not intended by the legislature nor provided for by legislation.
In that sense, Meirelles defended his position by explaining that the former mayor could no longer be prosecuted and convicted of a functional crime, defined in the Penal Code, for officials in general, because functional crimes of the Penal Code would no longer affect the mayor, provided that they are defined as crimes of responsibility, by the special law (DL 201/67), so that the mayor who committed a crime typified in the special law can not be punished for a common law offense, even though characterized as a functional crime.
In addition, the jurist argued that if we applied the Penal Code to former mayors, moving away from the specific criminal law for crimes of responsibility, they would have different penalties from those Mayors who are punished in the exercise of the position, and more than that, would be free of the accessory penalty of disqualification for another public function, not provided for in general criminal law.
In the face of all these arguments, Meirelles went on to criticize the understanding set forth by the Supreme Court, which had at the time understood that the mayor would only be subject to a criminal offense under Decree-Law n. 201/67, while in office.
However, case law was changed and, finally, on October 13, 2003, that is, 36 years after the enactment of Decree-Law 201/67, the entry of Precedent No. 703 of the STF, which established the which Professor Hely had been calling since 1977:
The extinction of the mayor’s mandate does not prevent the prosecution of the crimes described in art. 1º of DL 201/1967 ” . It urges to point out that on 14/08/1996, even before the STF pronouncement, the STJ issued a summary of such an understanding, through paragraph 164, which reads: “The municipal mayor, after the expiration of the mandate, remains subject to a process for a crime provided for in art. 1 of Decree-Law no. 201, 02.27.1967.
In other words, we can conclude that at present there is no longer any doubt that Hely Lopes Meirelles’ arguments were correct and that the first jurisprudential understandings of the High Courts regarding the meaning and scope of Decree-Law 201/67 were wrong.
The case-law is established in the sense that it is the competence of the first-level court to assess and prosecute the crime committed by a former mayor when he was in the position of mayor since the prerogative of the forum ends when the term expires and, according to Proceedings 164 of the Superior Court of Justice and 703 of the Federal Supreme Court, the municipal mayor, after the expiration of the mandate, continues to be liable for the commission of a crime of responsibility under Decree-Law 201 of 27.2.67 and this because what qualifies the active subject of this offense is his or her commitment to the job, not the job .
It seems that our High Courts took decades to learn this simple lesson of the administrativist teacher!
And at the end of the article quoted, authored by Professor Hely, the master already foreshadowed:
improper jurisprudential guidance is distinguishing where the law does not distinguish and creating a disparity of treatment between mayors in office and mayors out of office, and between these and their substitutes, who account for the same crime in office or outside it. Against these strange judges, there have been authorized commentators of the Decree-Law, certain that the Supreme Court will reformulate its jurisprudence, as we expect it too.
This is proof of the lucidity of the reasoning and steadfastness of the great master of administrative law, as well as the greater proof that legal and popular jargon – “justice takes time, but it does not fail” – is still valid!