Do you know how election crime investigations work in Brazil?

We have already covered electoral crimes and the electoral justice system here on the IDP Online Blog . The articles dealt with interesting topics such as what electoral crimes are and how to report them, as well as how the electoral justice system works and its composition.

To continue this line of reasoning, this article will address the role of the Superior Electoral Court in the investigation of electoral crimes, as well as the procedure adopted for prosecuting an electoral crime!

How has the investigation of election crimes evolved in Brazil?

In the past, electoral crimes rarely resulted in convictions, which is why for a long time they did not arouse much interest among those who dealt directly with the Electoral Justice system. This scenario began to change with the publication of Complementary Law No. 135/2010, known as the "Clean Slate Law".

This measure included electoral crimes with a possible prison sentence, which, if convicted, generate ineligibility for eight years, starting from the date of the collegiate conviction. This surprised many, especially politicians who never imagined the country could take such a popular initiative.

Society's desire to see politicians who demonstrably failed to comply with the country's rules removed from public life was greater. The discussion surrounding electoral crimes was intensified by the Supreme Federal Court's decision to examine whether the Electoral Court would have jurisdiction to judge non-electoral crimes if they were related to electoral crimes.

All non-election, but related, crimes should be sent to the Electoral Court. Therefore, several cases, some already with convictions at the appellate level, were annulled and sent back to the Electoral Court.

Resources obtained through embezzlement, fraudulent bidding processes, and other conduct against public administration, often used for money laundering, were channeled into financing election campaigns, naturally without proper accounting.

The scattering of campaign leaflets in public places during elections, in addition to constituting the crime of illegal campaigning near polling stations, may also fall under the criminal offense of environmental pollution.

In this sense, there are several types of crimes that fall under the jurisdiction of the electoral courts. However, we must view this issue positively, but with great caution.

On the positive side, there is a strong interest in democratic issues, such as candidacies, political participation, the exercise and legitimacy of political power. However, on the other hand, care must be taken to ensure that the population, now focused on political awareness, is not thus diverted to the misinformation being generated.

This misinformation is fueled by the excessive amount of information that society consumes daily. Unfortunately, there is no control over the information generated, much of which is only minimally reliable. Thus, expressions like "slush fund," "fake news," "embezzlement" (a nickname for the crime of peculation), and "freedom of expression," among many others, are gaining more and more traction.

How does the investigation and prosecution of election crimes work?

The investigation of electoral crimes begins with the initiation of a police inquiry. The police may formally initiate investigations, according to resolution no. 23.640/2020, which stipulates that:

Article 3. Any person who has knowledge of the existence of an electoral criminal offense must, verbally or in writing, report it to the police authority, the Electoral Public Prosecutor's Office, or the Electoral Judge.

Sole paragraph. Upon verifying the authenticity and veracity of the information, the police authority shall order the initiation of an investigation (art. 5, § 3, CPP).

And also:

Article 9. The electoral police investigation will be initiated ex officio by the police authority; at the request of the Electoral Public Prosecutor's Office or by order of the Electoral Court (Article 5, I and II, of the CPP).

The objective of an investigation within the context of a police inquiry is to obtain evidence of the materiality and authorship of the crime, which will allow the Electoral Public Prosecutor's Office, if it forms an opinion of guilt, to initiate public electoral criminal proceedings. It is for this reason that the Code of Criminal Procedure stipulates that:

Article 155. The judge shall form his conviction by freely assessing the evidence produced in adversarial proceedings, and may not base his decision exclusively on the information gathered in the investigation, except for precautionary, non-repeatable, and anticipated evidence.

Sole paragraph. Only with regard to the status of persons will the restrictions established in civil law be observed.

This means that the evidence obtained there will be presented to support the indictment. The Electoral Public Prosecutor's Office, in addition to having the legitimacy to bring public criminal action, also has the competence to conduct the investigation. The procedures for investigating electoral crimes are those adopted by the Code of Criminal Procedure.

Once completed, the electoral actions will be filed before the electoral judge; the deadline for filing the indictment is 15 days if the defendant is at liberty, and 5 days if they are in custody. There is an express provision for a preliminary response, which must be submitted within fifteen days.

The acceptance or rejection of the indictment, including the impropriety of the accusation, must be subject to deliberation by the full court, allowing the parties fifteen minutes for oral arguments. If the indictment is rejected, only motions for clarification and special appeals are admissible.

Upon receiving the complaint, Law No. 8.038 mandates that an interrogation be conducted:

Article 7. Upon receipt of the complaint or accusation, the rapporteur shall designate a day and time for the interrogation, ordering the summons of the accused or defendant and notifying the Public Prosecutor's Office, as well as the complainant or assistant, if applicable.

The understanding adopted by the Supreme Federal Court (STF) is that the rule in the Code of Criminal Procedure, which postpones the interrogation until after the instruction phase, is also applicable to these cases of original electoral criminal jurisdiction. At the end of the instruction phase, the court will:

Article 12. Once the investigation is complete, the Court will proceed to judgment, in the manner determined by its internal regulations, observing the following:

I – The prosecution and the defense will each have, successively and in that order, one hour for oral argument, with the assistant prosecutor guaranteed a quarter of the prosecution's time;
II – Once the debates are concluded, the Court will proceed to deliver its judgment, and the President may limit attendance in the room to the parties and their lawyers, or only to the latter, if the public interest so requires.

After the end of the first phase (instruction), the Judge will deliver the sentence, which may be appealed if the defense so chooses.

The Acting Minister of the TSE (Superior Electoral Court) , Maria Cláudia Bucchianeri , was a guest on the IDPCast episode about elections and commented on the role of the TSE in the 2022 General Elections. Check it out!

Jurisdiction for investigating and prosecuting electoral crimes and the role of the TSE (Superior Electoral Court).

The jurisdiction for processing and judging electoral crimes is divided into proper electoral crimes and improper or incidental electoral crimes. Proper electoral crimes are those foreseen in electoral legislation, while improper electoral crimes are those that affect the union and indirectly the organization, legitimacy, and fairness of elections.

Electoral crimes that are strictly defined, except for cases involving privileged jurisdiction before the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), such as the President of the Republic, fall under the jurisdiction of the electoral courts. Improper electoral crimes, on the other hand, fall under the jurisdiction of the Federal Courts, given that they affect the interests of the Federal Union.

The ordinary courts have no jurisdiction over electoral crimes, because these are always brought to trial either before the Electoral Court or the Federal Court. The general rule is that the electoral judge has jurisdiction to prosecute and judge electoral crimes, with the responsibility falling to the electoral prosecutor assigned to the electoral zone.

As previously stated, electoral crimes affect the interests of the Federal Union; therefore, it is the responsibility of the Federal Police to act as the electoral judicial police, in collaboration with the state civil police forces. The Plenary of the Superior Electoral Court unanimously approved the competence of the judicial police to initiate investigations ex officio and investigate electoral offenses.

Fachin, in his vote, emphasized that the magistrate's exclusive right to exercise police power within the electoral administrative sphere does not preclude the possibility of the police authority initiating a police investigation ex officio.

On the other hand, regarding the legitimacy of investigations, the Supreme Federal Court (STF) established the principle that the Public Prosecutor's Office has the power to conduct investigations on its own initiative, according to the precedent set by the STF:

The Public Prosecutor's Office has the authority to conduct, on its own authority and for a reasonable period, criminal investigations, provided that the rights and guarantees of any suspect or any person under investigation by the State are respected, and that its agents always observe the cases of constitutional reservation of jurisdiction and also the professional prerogatives vested in lawyers in our country (Law No. 8.906/94, art. 7, notably items I, II, III, XI, XIII, XIV and XIX), without prejudice to the possibility – always present in a democratic State governed by the rule of law – of permanent judicial review of the acts, necessarily documented (Binding Precedent No. 14), performed by the members of this Institution.

(STF, Extraordinary Appeal with General Repercussion 593.727, rapporteur Justice Gilmar Mendes, judgment of May 14, 2015.)

In light of all the above, it is clear that the TSE (Superior Electoral Court) plays a strong role in combating electoral crimes. In this sense, it is the role of this court to oversee and apply the law in specific cases, with the duty to uphold the principles governed by the Electoral Code and the Federal Constitution.

Furthermore, it regulates the necessary provisions and acts jointly with Regional Electoral Courts, which are directly responsible for administering the electoral process in the states and municipalities. In short, the institution's actions contribute to building a better future.

How important is a postgraduate degree for professionals working in this field?

Electoral law is experiencing increasing demand in the legal market. Because it is a specialized field, few individuals possess the necessary skills to work within the electoral justice system.

In this sense, online postgraduate studies in electoral law provide professionals with extremely important theoretical and practical knowledge. This is because, by interacting with a faculty composed of ministers and staff from electoral courts, legal professionals combine the best of both worlds.

Therefore, it is essential to choose a postgraduate program where the faculty is up to the challenges of the market. In addition to all the knowledge gained from excellent professionals, postgraduate studies are a great way to stay updated on the most important topics in the field.

Ultimately, career success, in any chosen field, depends on the quality of the professional's training. In addition to the effort and commitment expected in a specialization, associating with an institution that provides the best is usually an unbeatable combination.

References

TSE. TSE maintains the possibility for the judicial police to initiate police investigations and investigate electoral offenses. Brazil, 2022.

GONÇALVES, Luiz Carlos dos Santos. Investigation and prosecution of electoral and related crimes. Saraiva Publishing House, 2022.