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The Constitution of Brazil establishes parliamentary immunity. In its article 53, it establishes that the Deputies and Senators are inviolable, civilly and criminally, by any of their opinions, words and votes. In paragraph 2 of the referred article, there is a provision that parliamentarians may not be arrested, except in the event of flagrant non-bailable crimes.

Therefore, in order to arrest members of the Brazilian Chamber of Deputies, this article allows us to conclude that the agent must incur an non-bailed crime (first requirement) and be arrested in the act (second requirement).

In decreeing and then confirming the arrest of federal deputy Daniel Silveira (PSL-RJ), the Brazilian Supreme Court found that there was a flagrant of the offense provided for in article 18 of the National Security Law, in the act of posting and “keeping” a video on social media in which the parliamentarian defended and supported Institutional Act no. 5 – an legal act that symbolizes the recrudescence of the former Brazilian dictatorship-, which would supply the first requirement of § 2, of the Federal Constitution.

In this sense, for Minister Alexandre de Moraes, the hypothetical crime committed by the deputy would still be in the act once he would have a permanent nature, since the video still remained on the air, authorizing the arrest in the act in the form of article 303 of the Code of Procedure Penal.

As for the second requirement, the Minister also established the thesis that the crime would be non-bailed, as the requirements for the conversion of the flagrante delicto into preventive detention were present, when interpretating article 324 of the Brazilian Criminal Procedure Code.

The understanding that the act of posting and allowing the dissemination of video would constitute a permanent crime should not be considered peaceful. In Brazilian law, a permanent crime is generally defined as one in which the moment of the consummation of the crime extends over time, as in the classic hypothesis of kidnapping.

In the case of the deputy, the crime would have been consummated at the time of posting the video. This understanding can be supported by a similar precedent of the Superior Tribunal de Justiça, in which it was decided that the crime of threat is consummated at the place where the victim received the threat expressed and sent in digital media (STJ, 3rd Section, CC 156.284 / PR).

According to the current understanding, the hypothetical crime in question would have been instantaneous and with permanent effects, in time, which, by legal reasoning, denatures the thesis that it would be a permanent crime.

As far as the discussion about this being a non-bailed crime is concerned, the interpretation given to the concept of non-bailed crime also generated debate. The Federal Constitution defines the non-bailed crimes in items XLII and XLIII of article 5. The Brazilian Criminal Procedure Code stipulates, in line with the Constitution, the crimes of racism, torture, illicit drug trafficking, terrorism, heinous crimes and crimes committed by armed groups, civil or military, against constitutional and the Democratic State. These, therefore, are the crimes considered non-bailed.

In a new interpretation, the Supreme Court understanding stated that the hypotheses in which the bail is not applicable, for procedural reasons, should be equated with the non-bailed crime. These procedural cases are in article 324, of the Criminal Procedure Code, which in turn regulates that no bail will be granted when certain conditions are present, such as the requirements for the decree of pre-trial detention.

The difference between the two articles is that in the first there is a definition of crimes that are intrinsically non-bailable and the last article establishes conditions that other crimes may render the insusceptible of a bail for procedural issues.

Even though the statements made by congressman Deputy Daniel Silveira are repugnant, the decision of the Brazilian Supreme Federal Court to order his arrest in flagrant for non-bailed crime could cause legal uncertainty, once changes criminal and procedural concepts that have long been concretized by doctrine and jurisprudence.