The decision of the TRE-SP (Regional Electoral Court of) is added to other precedents of the involving conviction for misinformation against the ballot box and the judiciary.
As the deputy’s resources have suspensive effect on the application of punishments – they cover, besides the cancellation, the penalty of ineligibility for eight years from the election of 2022 – it continues in office until they are tried.
Thus, the final decision on the maintenance or not of its mandate must be of the (Superior Electoral Court). Zambelli can still try to present any questions to the São Paulo Court itself or to appeal directly to the Superior Court. Sought by Sheetthe deputy’s defense said the strategy will still be defined.
The precedent that inaugurated the understanding of the Electoral Justice regarding the possibility of disinformation about the integrity of the polls occurred in 2021 and was cited in the vote of Encinas Manfré, rapporteur of the action against Zambelli and electoral corregedor of São Paulo.
That year, the TSE, which, on the 2018 election day, had published a video that said the ballot boxes had been fraudulent to prevent the vote on the then candidate for president.
The understanding at the time was that the act was abuse of political power and improper use of the media, the same imputation now given to Zambelli.
Since then, the former president himself in an action of the same type regarding the 2022 elections and with the same framing. In 2023, most TSE ministers understood that their conduct, in a meeting with ambassadors with false affirmations on the ballot box, constituted abuse of power. In his case, however, the penalty was only ineligible, as he had not been elected.
Zambelli was convicted of a score of 5 votes to 2, with most magistrates following Manfré’s understanding. Among his arguments, he stated that the scope of the deputy’s social networks, with millions of followers, was “essential for the mass dissemination of false or severely decontextualized content.”
Already Maria Claudia Bedotti, who gave one of two votes against the cassation, pointed out that although she considered that the parliamentary’s speeches actually surpassed the limits of freedom of expression, they would not have been enough to compromise the smoothness of the elections and the equality between those Candidates.
Also in the case of Francischini, the only magistrate to present a divergent vote did not fail to point out that the parliamentarian’s conduct was reprehensible. But he disagreed that the act was sufficient to justify the revocation of the mandate.
Zambelli’s defense said in the process that there was no unlawful act in conduct and also that his posts are supported by freedom of expression. He also argued that several of the posts made in the pre-election period would only be sharing of content from other vehicles and that the contents disclosed during the campaign were unlawful or untrue.
Fernando Neisser, who is an electoral lawyer and professor of electoral law at FGV-SP evaluates that the decision follows the tse’s precedent on the Francischini case and that the result is kept in the upper court, since there would be no one Relevant change of understanding of the court on the subject.
“The TSE has already based on the understanding that massive misinformation against the voting system has the purpose of delegitimizing the electoral process. This breaks the idea of legitimacy and normality of the electoral process.”
Ana Carolina Clève, lawyer and chairman of the IPRADE Advisory Board (Paranaense Institute of Electoral Law), says that the Francischini case was paradigmatic because it showed that the Electoral Justice would be sensitive to a new context of disinformation strategy and also for demarcating A new TSE posture, of intransigence with the attack on the electoral system.
Professor in Constitutional Law at (University of São Paulo) and a member of Abradep (Brazilian Academy of Electoral and Political Law), Rubens Beçak evaluates that the decision of TRE-SP follows the line that has been adopted by the TSE.
Without referring to the case of Zambelli specifically, but to the general context of electoral justice decisions, he considers that there is an excessive voter protection stance, disregarding his ability to discern, which he evaluates as negative for impacting freedom of expression .
Also referring to conduct in the 2022 elections, two actions presented by the coalition of the then candidate Lula (PT) involve accusations of misinformation. Zambelli is one of the targets, along with other allied Bolsonaro politicians.
with obstacles to cite all targets in the case of the first, and in the second, with the sharing of evidence of other investigations.
The defenses dispute the accusations, several of them point out that there was no individualization of conduct and that the accusations are generic.
Like Zambelli, also the deputies (-MG) and Gustavo Gayer (PL-GO) had actions against them presented in their respective states.
The gayer lawsuit had unanimous decision of TRE-GO against the conviction in April last year, but the TSE appealed. Nikolas, in turn, is the target of two actions processing together at TRE-MG, still pending judgment.
