Gaps and cancellation of Deltan put Clean Record on the couch – 05/27/2023 – Power

Gaps and cancellation of Deltan put Clean Record on the couch – 05/27/2023 – Power


At the same time that the arguments of the TSE (Superior Electoral Court) to impeach federal deputy Deltan Dallagnol (Podemos-PR) divided opinions in the legal world, the episode gave new impetus to those who are critical of the Clean Record Law, considering that it would be overly comprehensive.

On the other hand, the law, approved in 2010, still has gaps for its better effectiveness.

A Sheet heard lawyers and members of the Public Prosecutor’s Office about the legislation, its controversial points or challenges for application.

Lawyer and former judge Márlon Reis, one of the creators of Ficha Limpa, considers that the law is still in the consolidation phase, and does not advocate that any discussion process be opened to change it.

“She [Ficha Limpa] there are still many powerful opponents who would like to take advantage of the first opportunity to make changes, not to improve it, but to make it worse”, he says.

He sees the text as the first ineligibility legislation with any effectiveness, stating that the previous rules did not, in practice, make anyone ineligible. “Whatever criticism it receives, it has the great merit of being the first time that we had an ineligibility law that actually influenced the electoral political scene.”

According to the TSE open data portal, in 2022, of the more than 29 thousand applications, 198 had the law as a reason for rejection. Already in 2020, there were 2,380 applications barred as a dirty record in a universe of more than 557 thousand candidates.

The only amendment defended by Reis that would impact the application of the Clean Sheet, but would not change it directly, would be to provide in the Elections Law some procedure prior to candidacy registration to verify who is or is not eligible.

“That would mean that we would have, among the candidates, only people that the Electoral Justice actually considers to be candidates”, says Reis. “It would avoid this problem of mandates being discussed for years on end”, he says.

Ricardo Vita Porto, electoral lawyer and president of the OAB-SP Electoral Law Commission, also points out the delay in completing processes as an important issue.

He considers that the reduction of campaign time to one and a half months is a relevant factor, as with it the limit for candidacy registration was also extended —and thus the time that the Electoral Justice has to judge which candidates are eligible, before the election, became smaller.

“What we have seen is that, due to this drastic reduction in deadlines, the Electoral Justice has not been able to give an answer to the voter before the date of the election”, he says, highlighting the impact of this type of occurrence in disputes of mayors that sometimes lead to new elections.

In each election, after the deadline for registering candidacies has ended, there is a period of five days during which they can be questioned. In 2022, the registration deadline was August 15; the first round took place a month and a half later, on October 2nd.

On the other hand, Vita Porto criticizes the rules of the Clean Record Law. He evaluates as negative, for example, that there is no modulation in the period of ineligibility, with deadlines of eight years only for the most serious cases, for example.

He also criticizes the very rule through which Deltan was impeached.

“Let’s imagine that a prosecutor has an administrative process and he is going to be acquitted, there is no basis, but if he decides to exonerate himself, he will be ineligible for eight years, without any conviction”, he explains.

Vitor Rhein Schirato, who works as a lawyer and is a professor of administrative law at the USP Faculty of Law, is critical of the law, considering that some of the hypotheses are too open.

Schirato considers it reasonable, for example, to prevent the candidacy of people convicted in second instance of administrative impropriety. On the other hand, he is critical of the hypotheses of ineligibility due to resignation or request for dismissal in the face of some type of process.

“Sometimes the person actually resigns to avoid being impeached and losing political rights,” he says. “Now, sometimes I can have a situation of initiating an impeachment process much more for witch hunts or for political reasons.”

Despite the criticism of the rule, Schirato considers that the reading made by the TSE when canceling Deltan’s registration was possible within what the law says, in his view imprecise.

The legislation determines that members of the Public Prosecutor’s Office who request dismissal with pending PAD (disciplinary administrative proceedings) must be declared ineligible.

The ministers of the electoral court understood that Deltan tried to defraud the law because he left the Federal Public Prosecutor’s Office when he was responding to procedures that, later, could become PAD.

In addition to the debate on the content of the law itself, there are still challenges for its application.

Paula Bajer, regional electoral prosecutor in the state of São Paulo, considers that it would be important to have a general system, with consolidated information, to optimize the work of the Public Ministry.

“A lot needs to be improved so that the systems communicate even more, so that we know with ever more exactness what happened to each person. Have a history as accurate as possible of all the combinations, of all the disciplinary procedures instituted in relation to to each candidate”, he evaluates.

“There are several paragraphs [hipóteses] challenge and it’s all too complex to be analyzed in a short period of time”, she says.

The so-called SisConta, the Public Prosecutor’s Office system, allows agencies to send information related to the Clean Sheet. Despite this, there are still practical limitations to researching and accurately identifying all cases of ineligibility.

For the prosecutor Rodrigo Zilio, auxiliary member of the Electoral Attorney General’s Office, one of the great difficulties for this work refers especially to the lack of a consolidated database with regard to decisions outside the Judiciary.

“The big problem is when the decisions that lead to ineligibility come from these administrative or political bodies, which we don’t have a certificate, we have to go after to get it”, explains Zilio, who acted as one of the trainers of the course for regional prosecutors voters in last year’s elections.

Altogether there are 5,570 municipalities in the country, which makes it difficult to officiate all bodies to obtain information.

“There is a gap in this and it is a very difficult job for the Public Ministry. I would say that [a falta de base consolidada] it is a big Achilles heel for us to be able to bring the causes of ineligibility.”

Schirato, on the other hand, assesses that it would not be necessary to go beyond what already exists today. “That’s exactly why the law gives legitimacy to a lot of people, because the other candidate is the one most interested in researching life. [do adversário].”


Clean Record Law

Approved in 2010, it amended the Ineligibility Law, expanding the cases in which a person could not run for elective office, establishing a period of eight years as a period.

Top reviews

  • There are those who consider the chances of ineligibility to be very wide, going against the principle of presumption of innocence, since the person may be rendered ineligible by a decision which he can still appeal
  • There are also criticisms of the fact that there are no interim periods of ineligibility beyond eight years.
  • In 2012, the STF (Federal Supreme Court) judged the constitutional law

Who can challenge a candidacy
Candidates; parties; coalitions; federations and the Electoral Public Ministry may question the candidacy records. They may claim, for example, that a particular candidate does not meet the eligibility criteria. The deadline for filing this type of action is five days after the release of the lists of registries

Some of the circumstances in which a person becomes ineligible

  • people convicted in a final decision or in a decision handed down by a collegiate body (more than one judge)
  • politicians who resign from their mandates after offering representation or a petition that could result in the revocation of mandate
  • public managers who have had their accounts rejected due to a malicious act of administrative impropriety
  • people excluded from the exercise of the profession by decision of a professional council due to an ethical infraction
  • civil servants dismissed from the public service due to administrative or judicial proceedings
  • members of the Public Ministry compulsorily retired; who have lost office by sentence; or who have requested voluntary dismissal or retirement “pending administrative disciplinary proceedings”



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