Conjur, the largest legal website in the country, proves Moro's manipulation in the PCC case.

By Sérgio Rodas, from Conjur – The Federal Court of Paraná is not competent to conduct the investigation into the alleged plan to kidnap Senator Sergio Moro (União Brasil-PR). Since the crimes under investigation would not have been committed because he is a member of parliament, nor to the detriment of assets, services, or interests of the Union, the case falls under the jurisdiction of the state court.

And it's not even the responsibility of the Paraná state court, but of the São Paulo state court. After all, it was São Paulo that initiated the investigation. And the first preparatory acts to put the eventual project into practice were carried out by members of the Primeiro Comando da Capital (PCC) in cities in São Paulo.

The investigation into the alleged plot to kidnap Moro is proceeding in the 9th Federal Court of Curitiba. The press office of the Federal Court of Paraná stated to the online magazine Consultor Jurídico that jurisdiction lies with the federal court, not the state, because the victim is a senator. The agency cited Precedent 147 of the Superior Court of Justice. This rule establishes that "it is the responsibility of the Federal Court to prosecute and judge crimes committed against federal public officials when related to the exercise of their duties."

Furthermore, the press office maintained that the investigation is being conducted in Curitiba because it is where Moro resides and where the alleged kidnapping would have been carried out. The first acts of execution of this plan occurred in December 2022, when he had already been elected but not yet sworn in.

However, the fact that Moro is a senator or was Minister of Justice — a position in which he took measures that displeased the PCC, according to Judge Gabriela Hardt — does not attract the jurisdiction of the Federal Court, says Afrânio Silva Jardim, a retired professor of Criminal Procedure Law at the State University of Rio de Janeiro.

He argues that the fact that the victim of a crime against a person — such as kidnapping or possible homicide, crimes that could supposedly have been committed against Moro — is a public official does not justify assigning the case to federal judges, according to the Constitution.

Article 109, IV, of the Constitution establishes that it is the responsibility of the Federal Courts to prosecute and judge political crimes and criminal offenses committed to the detriment of assets, services or interests of the Union or its autonomous entities or public companies, excluding misdemeanors and reserving the jurisdiction of the Military Courts and the Electoral Courts.

Jardim points out that, in the case of kidnapping, attempted kidnapping, or homicide, the execution has not yet begun. And uncovering aspects of the potential victim's daily life does not constitute the beginning of the crime's consummation. In any case, these would be crimes committed against Sergio Moro as an individual, not against the assets, services, or interests of the Union or its autonomous entities or public companies. Therefore, jurisdiction lies with the state courts, not the federal courts, the professor opines.

If there is a crime that was already being committed, he emphasizes, it is that of belonging to a criminal organization — which is a crime of mere conduct and has no victim. Therefore, the fact that Moro is a senator and was Minister of Justice again does not make the Federal Court competent to conduct the investigation.

Along the same lines, Aury Lopes Jr., professor of Criminal Procedure Law at the Pontifical Catholic University of Rio Grande do Sul, states that the application of Precedent 147 of the Superior Court of Justice (STJ) is not warranted.

"The jurisdiction of the Federal Court would be attracted if the crime were committed against a public servant in the exercise of their duties. There has to be a current context of the exercise of their duties. He (Moro) is a senator today, but the crimes have no relation to that. I see no justification for the application of the precedent, nor for federal jurisdiction. Furthermore, all the restrictions established by the Supreme Court—in the Procedural Question in Criminal Action 937—need to be considered in this discussion. If a crime committed by a public servant after the cessation of their prerogative does not attract the court's jurisdiction (that is, they have no prerogative whatsoever), this also applies in the opposite sense," assesses Lopes Jr., a columnist for ConJur.

In the case cited by the professor, judged in 2018, the Supreme Federal Court (STF) plenary restricted the scope of the special jurisdiction for public officials. According to the justices, parliamentarians only have special jurisdiction if the alleged crimes occurred during their term of office, in connection with their position. In the case of crimes committed prior to that, the parliamentarian must be prosecuted by the first instance court, like any other citizen. With the end of their term, the privileged jurisdiction also ends, the court ruled.

Paraná or São Paulo?

The investigation began in the state court of São Paulo, the state where the preparatory acts for the alleged PCC plan started. Subsequently, the part involving Sergio Moro was separated and sent to the Federal Court of Paraná.

If the preparatory acts for the alleged plan began in São Paulo, and most of the arrests and searches and seizures were carried out in that state, the case should be heard in the São Paulo state court system.

Afrânio Silva Jardim mentions that if the criminal organization — the PCC — is based in São Paulo and began planning the alleged kidnapping in cities in São Paulo state, then jurisdiction lies with the state courts.

Regarding the venue, jurisdiction is determined by the most serious crime, cites Aury Lopes Jr. The alleged PCC plan would involve not only attacks on Moro, but also on the São Paulo Public Prosecutor Lincoln Gakiya. In other words, crimes of equal gravity. The rule of prevention applies, according to the professor. Thus, the process should remain where it was initiated—in the São Paulo state court, where the investigation involving the prosecutor continues.