Sending actions to the Electoral Court favors investigated – 01/25/2023 – Branch

The slowness in sending criminal actions and investigations to the Electoral Justice, associated with the body’s lack of structure for judging complex cases, has benefited former governors who were the target of operations on suspicion of irregularities involving common and electoral crimes.

There are episodes of extensive discussions about the correct forum for processing the accusations, in addition to a series of appeals by the defenses directly to the STF (Federal Supreme Court) to ensure that the cases are under the responsibility of electoral judges.

This happens almost four years after the Supreme Court established the understanding that the Electoral Justice is responsible for judging crimes such as corruption and money laundering, when investigated along with suspicions of slush funds.

The decision was contrary to what was defended by the PGR (Attorney General of the Republic) —at the time commanded by Raquel Dodge—, the members of the Lava Jato task forces and also anti-corruption entities.

A report released by Transparency International in October pointed to the transfer of cases related to corruption and money laundering associated with slush funds to the Electoral Justice as one of the causes that made Brazil institutionally regress in anti-corruption commitments.

A recent case is that of the former governor of the Federal District, José Roberto Arruda (PL). Denounced in 2009 on charges of ideological falsehood following an investigation into Operation Pandora’s Box, he was convicted in 2017.

In 2020, the TRF-1 (Federal Regional Court of the 1st Region) upheld the conviction. His lawyers then filed a direct request with the STF asking for the records to be sent to the Electoral Court.

Last May, a few months before the election, Minister André Mendonça annulled the convictions and ordered the documents to be sent to the Electoral Court. Days later, Mendonça did the same with a second conviction of Arruda, who accused him of witness corruption.

The Public Prosecutor’s Office appealed and the case is still pending before the Supreme Court.

Also in the Federal District, a criminal action was sent to the Electoral Court against former governor Agnelo Queiroz (PT). The process is derived from Operation Panathenaic, which in 2017 investigated alleged irregularities in public works, such as the stadium built for the 2014 World Cup.

STF ministers who defended the understanding established in 2019 pointed out that the legislation is clear in establishing the Electoral Justice as the correct forum for situations of this type. The Electoral Code states that it is up to electoral judges to “judge electoral crimes and common crimes related thereto”.

The decision sparked a race to expand the structure for investigating and prosecuting these cases by the electoral courts.

In São Paulo, a task force of prosecutors was set up in 2020 aimed at unraveling accusations made by whistleblowers from large companies, in an initiative dubbed “Lava Jato Eleitoral”.

One of the main processes involved the former governor of São Paulo and current vice president, Geraldo Alckmin (PSB), but it ended up being blocked in December by Minister Ricardo Lewandowski, of the STF.

Lewandowski considered that the prosecution used evidence from the Odebrecht contractor’s leniency agreement that had already been invalidated in decisions against other defendants, including President Lula (PT).

Across the country, the scenario is one of uncertainty in relation to the progress of processes of this type in the Electoral Justice.

In Rio de Janeiro, for example, the sending of a case of great repercussion to the Electoral Justice ended up producing a tour of the records by offices.

Complaint involving former governor Sérgio Cabral (former MDB) regarding Operation Furna da Onça, which arrested state deputies in 2018, was pending in Federal Justice until March 2021, when STF Minister Gilmar Mendes ordered the process to go to the Electoral justice.

The electoral prosecutor in charge later concluded that there was no evidence of electoral crimes in the case file and asked that these crimes be closed.

In view of this, an electoral judge decided to ask for a position from the Federal Public Ministry, which agreed with the filing in relation to electoral crimes. The body, however, requested that the case be sent to the state courts for possible processing of other crimes, which was done.

Upset, one of the accused went to the Supreme Court again, and Gilmar Mendes reaffirmed in March that the case should remain in the Electoral Court. The process is still ongoing.

Governor of Goiás for four terms, the toucan Marconi Perillo was arrested in an operation in 2018 and was denounced the following year on charges of passive corruption, laundering and criminal organization related to alleged payments by the contractor Odebrecht.

The case was also sent to the Electoral Justice, but, last year, a decision by Gilmar Mendes annulled measures taken at the time of the investigation – which, in practice, made the progress of the process unfeasible.

Perillo was again a candidate for the Senate in October, but was not elected. “From the beginning, this operation had a clear objective: to harm me politically”, said the toucan at the time.

In the case of Ricardo Coutinho from Paraíba (former PSB, today in the PT), the investigations were also concluded, but the progress was stuck in a long discussion about which forum the complaints should be processed.

Operation Calvário, launched in 2019, concluded that the former governor led a criminal organization that collected bribes in state contracts in the area of ​​Health. He was also accused of corruption.

In early 2020, he was denounced in state court. In 2021, the defense obtained a decision by the STF to send the case to the Electoral Justice of Paraíba, on the grounds that the facts involved campaign funds. However, the electoral court decided to return the process to the common courts, as it understood that the complaint brought the imputation of the crime of a criminal organization, without specifying electoral irregularities.

Last June, Minister Gilmar Mendes again declared the incompetence of the common Justice and reaffirmed the attribution of the Electoral Justice.

The ex-governor has said that the operation was a setup and political persecution.

In Paraná, the toucan Beto Richa was arrested three times between 2018 and 2019. Part of the criminal actions against him were sent to the Electoral Justice by the STF. However, another part is suspended and awaits the STJ to decide whether it will be processed in the Justice of Paraná or in the Electoral. Richa was elected federal deputy in the last election.

There was also an acquittal already defined. This was the case of Raimundo Colombo (PSD), who governed Santa Catarina from 2011 to 2018. Accused of slush funds based on Odebrecht’s accusation, he was acquitted in the first and second instances.

There was an understanding that the Public Ministry did not produce sufficient proof that the politician requested, negotiated and received transfers from Odebrecht, as reported by the contractor’s whistleblowers. “The conviction cannot be based on assumptions”, wrote the responsible judge, Margani de Mello.

After being investigated, Colombo was defeated when running for the Senate in the 2018 and 2022 elections.

Even before the decision of the STF, in 2018 the STJ (Superior Court of Justice) decided to send the processes of the former governor of Minas Gerais Fernando Pimentel (PT) to the Electoral Justice.

In 2015, Pimentel was the target of Operation Acronym, which investigated suspicions of money laundering in electoral campaigns – including that of the PT in 2014 – related to communication agencies and printing companies. In total, four actions and investigations on Pimentel were sent to the Electoral Justice. He was acquitted in one of the cases and, in another, the Public Ministry appeals.

Another two, which run under secrecy according to the TRE-MG (Regional Electoral Court), still have no decision. The former governor has always denied the allegations.