Brazilian Politicians Go to Court Against Clean Criminal Record Law

    Brazilian senator Heráclito Fortes

    Brazilian senator Heráclito Fortes Despite having been found guilty of a crime by the Brazilian justice, thanks to a ruling by Brazil’s Supreme Court justice Gilmar Mendes, a politician will be able to register his candidacy and run for office in October. The beneficiary of the decision is senator Heráclito Fortes (DEM from Piauí state) who intends to run for reelection.

    A state court (Tribunal de Justiça do Piauí – TJ-PI) found Fortes guilty of misuse of public resources when he was mayor of Teresina, Piauí, between 1989 and 1993. Fortes immediately appealed the decision and his appeal has been in the Supreme Court since 2000.

    Mendes ruled that Fortes can move ahead with his candidacy as the Supreme Court has not made a final decision on his conviction.

    The Clean Criminal Record (Ficha Limpa) bill became law on June 4 and makes politicians with convictions ineligible to run for office. However, Ficha Limpa is in conflict with the constitution on at least two points. The Supreme Court will have to decide the issue.

    According to the site www.congressemfoco.uol.com.br, around 25% of all federal deputies have legal problems that could make them ineligible under Ficha Limpa. And in Rio de Janeiro, out of 70 state legislators, 37 have legal problems.

    A former state deputy, José Carlos Gratz (PSL, Espírito Santo), has filed a lawsuit in the Supreme Court (STF) challenging the Ficha Limpa law that was sanctioned by president Luiz Inácio Lula da Silva on June 4.

    Ficha Limpa makes politicians with criminal convictions ineligible to run for office. However, only certain kinds of convictions – convictions by a court (as opposed to a single judge) count.

    In his suit, Gratz makes the point that on a number of occasions the STF has ruled that a politician cannot be ineligible because of a conviction until all possibilities of appeal have been exhausted and a final decision on the case has been reached.

    In fact, in an STF case in 2008 (“ADPF 144”), it was decided that a “fundamental [constitutional] precept” was infringed upon  when a politician was made ineligible in such circumstances, that is, before all chances of appeal have been exhausted and a final ruling made.

    The Gratz case is an example of some of the problems at the interface of politics and jurisprudence in Brazil. Gratz’s lawyers point out that Gratz has no less than 200 criminal charges of various types against his person, fruit of what they call attempts by a political enemy, who happens to be the present governor of Espírito Santo, Paulo Hartung, to “demonize” Gratz while portraying the governor as a saint.

    The point is that it is easy to spray an opponent with criminal charges and then count on the law’s delay to keep the opponent hobbled with a criminal record for an extended period of time.

    In his lawsuit, Gratz also claims that the vote on the Ficha Limpa bill in Congress was basically illegal because changes were made to the original bill and it did not get a second vote as required.

    Gratz actually went to jail at one time (found guilty of abuse of power when he paved some streets to get votes). A sentence of forfeiture of office was confirmed by the TSE in 2003.

    In other words, there is no doubt that in the case of Gratz there is a conviction that fits the Ficha Limpa law requirement for ineligibility like a glove. But then there is the question of whether or not the law can be retroactive – after all, the constitution prohibits that.

    ABr

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