By MARCELO AITH*
If abuse of power is proven, Tarcísio de Freitas may face sanctions, such as ineligibility for eight years and other applicable penalties.
1.
The governor of São Paulo, Tarcísio de Freitas, this past Sunday (27), at the headquarters of the São Paulo Government and alongside Ricardo Nunes, starred in yet another controversial episode during the elections for the City Hall of São Paulo. Without presenting evidence and on the day of the second round, he irresponsibly stated that the Primeiro Comando da Capital (PCC) – the largest criminal faction in Brazil – had issued a “salve” instructing the vote for Guilherme Boulos.
To reinforce the governor's statements, the São Paulo Public Security Department released a statement at 15:50 p.m., while the polls were still open, stating that “the Military Police Intelligence System intercepted the circulation of messages attributed to a criminal faction, instructing the selection of candidates for mayor in the cities of Sumaré, Santos and São Paulo. The Civil Police is investigating the origin of these messages.”
Tarcísio de Freitas stated that “we have been warning about this for a long time. We have carried out extensive intelligence work and are exchanging information with the Regional Electoral Court so that measures can be taken.”
In response, Guilherme Boulos filed an Electoral Judicial Investigation Action (AIJE), based on article 22, section XIV, of Complementary Law No. 64/1990, alleging that the governor's conduct represents a “very serious attempt to influence the outcome of the election on election day, in a way never seen before in the State of São Paulo”. He also highlighted the “use of public machinery and the abuse of political power” involved in the situation.
2.
What is the Electoral Judicial Investigation Action (AIJE) and what are its consequences?
The Electoral Judicial Investigation Action is a legal instrument of Brazilian electoral law used to investigate and sanction conduct that compromises the legitimacy and normality of elections. It is provided for in the Ineligibility Law (Complementary Law No. 64/1990) and in the Electoral Code (Law No. 4.737/1965), mainly in articles 22 and following of Complementary Law No. 64/1990. The Electoral Judicial Investigation Action can be used to investigate abuse of economic, political or authority power, as well as the improper use of the media, among other practices that affect equal opportunities among candidates.
The sanctions, in case of conviction, include: (i) ineligibility: the convicted person may become ineligible for eight years, according to article 1, paragraph I, item “d” of Complementary Law No. 64/1990. This ineligibility may affect both the candidate directly involved and third parties benefiting from the illicit practice; (ii) revocation of Registration or Diploma: the candidate may have his/her registration revoked before the elections or his/her diploma revoked after being elected, losing the right to assume or continue in the position to which he/she was elected; (c) fines: in addition to political sanctions, the convicted person may be required to pay fines, according to the severity and circumstances of the case.
3.
Could the governor's speech have legal repercussions?
The lawsuit filed by Guilherme Boulos seeks to investigate the possible abuse of political power and misuse of authority by the governor, as well as a possible undue benefit to the mayoral candidate. If the abuse of power is proven, Tarcísio de Freitas could face sanctions, such as ineligibility for eight years and other applicable penalties.
Likewise, Ricardo Nunes could have his diploma revoked and be declared ineligible for eight years if it is proven that he benefited from abuse of power.
Considering that the Electoral Judicial Investigation Action aims to ensure equal conditions between candidates and the integrity of the electoral process, punishing those who improperly use their positions of power to influence the outcome of the elections, the governor's conduct – using the institutional structure of the State on election day, with open ballot boxes and a clear electoral impact, especially in the era of WhatsApp groups and the speed of information – is punishable. Now, we can only await the analysis of the Electoral Court, which will know how to treat the case with the attention and the necessary and fair consequences.
*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.
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