The ministers of the (Superior Electoral Court) changed the reasoning of the TRE-RJ (Regional Electoral Court of ) to, without conviction, involvement in a criminal organization.
The vote of rapporteur Antônio Carlos Ferreira, approved unanimously, focused on the parties in their activities, provided for in the Law on Political Parties. It was based on this provision that the appeal of councilor Fabinho Varandão (), from Belford Roxo (RJ), against the rejection of the registration of his candidacy for re-election was rejected.
When contacted, Varandão’s defense did not respond. When the registration was rejected, the councilor criticized the decision. “I have never been tried, there has been no conviction. Understanding is not law. When I arrive in Brasília, the law will prevail”, stated Varandão on his social networks.
The Rio de Janeiro judges had used another article of the Constitution as a basis, which alludes to the candidate’s previous life, administrative probity and morality. The rule establishes, however, that a law will specify these situations. There is no legal provision, neither in the Ineligibility Law nor in the Clean Record Law, that prevents candidacy solely due to the status of defendant or accused.
“It is impossible to support article 14, § 9, of the Federal Constitution [que trata da vida pregressa]for the denial of registration, because it depends on a complementary law for new hypotheses of ineligibility, and it is not self-applicable”, states Ferreira’s vote.
The change is relevant because it restricts the veto to those accused of involvement with armed gangs. Based on the previous understanding, the TRE-RJ even barred a candidate for mayor denounced on charges of corruption. Experts feared the lack of criteria in analyzing past life without a clear rule.
By changing the basis for the vote, the minister rejects the thesis that the TSE changes, according to which it is not up to the judge to define the cases in which the candidate’s previous life will imply ineligibility.
He claims to be based on another constitutional provision and establishes a new thesis, also unanimously approved by the ministers, to take effect in 2024.
“The prohibition of candidacy by members of a paramilitary or similar organization derives directly from article 17, § 4, of the Constitution, a rule of full effectiveness, which prevents interference, direct or indirect, in the electoral process, by any and all organized criminal groups .”
Despite differing from the Rio de Janeiro magistrates, the rapporteur repeats part of the TRE’s argument by stating that “we cannot close our eyes to the national reality in which criminal organizations seek to infiltrate politics”.
“What is sought, in this case, is the efficiency of this response by preventing, from the outset, the registration of candidacies known to be related to criminal organizations, based on the illegal influence of these groups in the electoral process, whose interests are based on criminal activities and the spurious monopoly of commerce through territorial domination, everyone using the armada as a way of guaranteeing the legitimacy of power”, stated the minister.
Ferreira states in his vote that a conviction is not necessary to prevent registration.
“The candidate displays against him several elements denoting his participation in an armed militia, in the practice of extortion and in the illegal carrying of weapons to maintain control over local economic activities, which attracts the prohibition provided for in article 17, § 4, of the Constitution”, says the minister’s vote.
The councilor was accused of threatening and extorting competitors in the distribution of internet signal in neighborhoods of Belford Roxo.
The vote of electoral judge Maria Helena Pinto Machado, from TRE, describes the testimonies of the investigation against Varandão and other evidence of the criminal action.
“The reform of the regional ruling would represent a significant setback in social and legal achievements, undermining the population’s trust in the institutions and in the legitimacy of the electoral process, not to mention the denial of validity to a fully effective constitutional provision (art. 17, § 4º ) and, therefore, of immediate, full and direct applicability”, says the minister.
The administration of the minister, who assumed the presidency of the court in June, has encouraged measures to combat the influence of organized crime in the election and has favored a tougher understanding to block candidacies.
In a recent interview, she cited the Constitution’s rule that talks about previous life and said that organized crime nominates people without procedural obstacles to avoid ineligibility, so that the judge has no reason to deny the registration request.
Thus, she says, “there would be the possibility of us cleaning up this request for registration of candidates”, if it were found that this person “would have to represent or replace someone who could not be there” — in reference to the world of crime.
