Bolsonaro may also have greater punishment for impropriety – 07/05/2023 – Politics

The misuse of TV Brasil and the structure of the Palácio da Alvorada at the meeting with ambassadors in July last year may lead former president Jair Bolsonaro to respond for administrative impropriety. One of the hypotheses in case of conviction is the suspension of political rights, preventing the former president from exercising functions in the PL.

By leaving Bolsonaro ineligible, most ministers of the TSE (Superior Electoral Court) decided that the meeting was electorally motivated, with a deviation from the purpose of using the public structure, both by employees and by the EBC (Empresa Brasil de Comunicação), which transmitted the live presentation.

One of the theses used by the former president’s defense at the trial was that the meeting had no electoral purpose, being just an act of the head of state.

The ineligibility penalty applied by the TSE does not prevent the performance of party functions, but rather from assuming elected positions. Bolsonaro has been honorary president of the PL since April, with a salary of BRL 41,000.

The suspension of political rights, on the other hand, is a broader punishment.

“Political rights are prerogatives attributed to a person that allow him to participate or influence activities related to the democratic State, whether through voting, holding public office or using other constitutional and legal tools”, says lawyer Gustavo Justino de Oliveira, professor of administrative law at USP and IDP.

According to TSE jurisprudence, the restriction affects the performance of party activities and the exercise of political positions. Since taking office in his party, Bolsonaro has participated in political activities across the country, and one of his goals is to strengthen his political field for the 2024 municipal elections.

“Although the political party is an institution of a private nature, its subsistence is based, to some extent, on the receipt of public resources, which goes against all the logic of maintaining a link with someone whose political rights are suspended”, says the lawyer Letícia Lacerda, member of Abradep (Brazilian Academy of Electoral and Political Law).

The sanction is one of the hypotheses for those who commit acts of administrative impropriety provided for by Law 14,230, of 2021, including damage to property due to misuse of the state structure. For experts heard by Sheetin theory, the former president can be included in this practice.

It is up to the Federal Public Prosecutor’s Office to present a public civil action for accountability to take place, since the event at the time was held in the structure of the federal government.

Unlike what happens in the criminal sphere, the Law of Administrative Improbity does not foresee the possibility of imprisonment, but punishments such as loss of public function and compensation for damages to public coffers.

It can also result in fines, loss of assets and prohibition to sign contracts with the public authorities.

Lawyer Vera Monteiro, professor of administrative law at FGV Direito SP, points out that the conviction requires, as provided for in the new version of the law, proof that Bolsonaro acted intentionally – the so-called fraud.

“The law was recently amended and for conviction for impropriety, malice is needed. The common justice needs to qualify as dishonest the actions taken by the former president”, he says.

If this is proven, she adds that it will be up to the Justice to define whether the suspension of political rights will be applied and for how long, since the period varies from 1 month to 12 years from the moment when all the remedies are exhausted and the action completed, extending the former president’s ineligibility beyond 2030.

Experts point out, however, that actions for impropriety tend to drag on for years in the Judiciary, and a quick decision is seen as unlikely. The new version of the law, sanctioned in 2021 by Bolsonaro himself after mobilization of Congress, expanded the prescription hypotheses, among other flexibility.

Professor of administrative law at the USP Faculty of Law Vitor Rhein Schirato says that it is likely that there will be news in relation to these processes over the period of Bolsonaro’s ineligibility, which is eight years.

“There is still a huge disparity in the ferocity of the sanction of minor authorities compared to the former president, who so far is making a lot of profit in the face of everything he has done against the public administration against the Brazilian state.”

Professor Oliveira (USP and IDP) adds that there is the possibility of framing Bolsonaro for administrative impropriety in at least three of the investigations already opened against him in court, citing investigations into fraud in vaccination cards, appropriation of jewelry presented by the government of Arabia Arabia and the leak of a classified investigation by the Federal Police.

Bolsonaro can also be condemned for misuse of public resources with the TCU (Union Court of Auditors). In representation, the deputy attorney general of the Public Prosecutor’s Office at the court, Lucas Rocha Furtado, asked for an investigation of damage to public coffers in the context of the decision taken by the TSE.

If the process is opened by Minister Bruno Dantas, president of the TCU, the next step should be to carry out an audit of the existing evidence and prepare a recommendation, which should take at least six months. From then on, the so-called account opening process is opened, giving the former president the opportunity to defend himself.

As shown to Sheetthe understanding in reserved conversations in courts in Brasilia is that the highest electoral court in the country has already decided that it was an illegal pre-campaign act and that it will be difficult for the TCU not to make a decision in the same sense, determining the return of public resources used in the organization of the event.

The lawyer specialized in electoral law Alberto Rollo says that it was expressed in the decision of the TSE that the meeting with ambassadors had an electoral purpose, despite having been carried out with public resources. If TCU understands the same way, Bolsonaro will have to return these values.

The effect of extending the former president’s ineligibility should only happen if it is proven that he acted intentionally, as the Clean Record Law speaks of accounts disapproved for irregularities that “configure a malicious act of impropriety”. If the Court of Auditors decides in such a way, Bolsonaro is also subject to ineligibility for eight years, counting from the date of the decision.

At the TSE and in public demonstrations, Bolsonaro and his defense denied that there was any irregularity in the meeting promoted with ambassadors. Lawyer Tarcísio Vieira de Carvalho told the court that the meeting took place well before the election period and that the then president only made remarks about the electoral system and suggested improvements.

The defense still intends to appeal the conviction in the electoral court.