Brazil: understand the controversy over the Court decision that canceled Dallagnol’s mandate

By Natália Veloso

The application of the Ficha Limpa [Clean Record] Law in the case of Deltan Dallagnol (Podemos-PR), 43 years old, left open a controversy about the interpretation that the TSE (Superior Electoral Court) had to annul the congressman’s candidacy registration.

The Board of the House of Representatives confirmed the decision this Tuesday (6).

HOUSE FOLLOWS TSE AND REVOKES DALLAGNOL’S MANDATE

On May 16, 2023, the Electoral Court unanimously decided that Dallagnol defrauded the law by resigning from his position as Federal Prosecutor in the Paraná Public Prosecutor’s Office (MP) while he was the target of 15 proceedings that could become a PAD (Disciplinary Administrative Proceeding) – if he left with ongoing proceedings, which was not the case, he would be barred from running.

Read below the timeline of the Dallagnol case:

WHAT THE TSE SAID

The rapporteur of the action, Justice Benedito Gonçalves, considered in his vote that the congressman used practice supported by law to defraud the legal rule.

“Although, as a rule, this cause of ineligibility presupposes the existence of administrative disciplinary proceedings that may lead to compulsory retirement or loss of office, it is inferred that the defendant anticipated his request for dismissal on purpose exactly to avoid that the other 15 various procedures underway against him were converted or give rise to PADs.”

“We have, therefore, a practice coated with an appearance of legality, but disguised, and that in the end reveals itself illicit from the combination of several specific circumstances to be verified in the examination of a concrete case,” says an excerpt of the vote.

The Justice cites that the plaintiffs in the action put forward the thesis that the request for dismissal was made before the procedures could be converted into an administrative process. The goal: to circumvent ineligibility.

“INTERPRETING HAS LIMITS”

For the former Justice of the STF (Supreme Court), Marco Aurélio Mello, the dismissal is a premise of every official and should not imply the loss of a political right.

“Above the law is the Federal Constitution, which subjects everyone indistinctly. We pay a price for living in a Democratic State.”

“It is a small price, within everyone’s reach: respect for the legal order. Interpreting has limits.”

“Defective consent, in this case, fraud, cannot be presumed. It must be, always and always, proven”, said the former Justice to Poder360.

Marco Aurélio also says that the decision can be seen as an attempt to “fulminate” the protagonists of the Lava Jato operation.

Dallagnol is the former coordinator of the task force of the operation in Paraná.

“Yesterday, a national hero in the fight against corruption, personifying the Prosecuting State. They buried the Lava Jato. Fulminate the protagonists?”

“Where are we going to end up? One does not advance culturally like this,” declared the former Supreme Justice.

“PRECISE ANALYSIS”

Other specialists, however, affirm that applying the law was correct.

For the lawyer Marlon Reis, one of the creators of the Ficha Limpa Law, the vote of the rapporteur made a “precise analysis” of the rule.

He also said that the judgment was based on evidence indicating the “deviant behavior” of Dallagnol.

“The vote cast by Justice Benedito Gonçalves made a precise analysis of the evidence in the file and realized to be facing a case of fraud against the law.”

“This happens when someone uses an apparent right to circumvent a future event that is not only possible but very probable.”

“[The case is reminiscent of the conduct of congressmen who, in the past, resigned before the opening of proceedings for breach of parliamentary decorum.”

“This practice, once common, also entails ineligibility after the Ficha Limpa [Clean Record] Law came into effect,” Marlon told Poder360.

JUDGMENT IN THE TRE

The understanding of the TSE goes against the TRE (Regional Electoral Court) decision of Paraná on October 19, 2022.

At the time, the body granted the application for registration of the former prosecutor.

It understood that the MP’s departure “did not hinder the continuity of the evidentiary investigation and the conversion of the files into disciplinary administrative procedures.

The TRE also says that the certificate presented by the CNMP (National Council of the Public Ministry) indicates that no administrative disciplinary proceedings were initiated or in progress when he left the body on November 2, 2021.

LIGHT AT THE END OF THE TUNNEL: THE STF

Deltan Dallagnol has one option: appeal to the Supreme Court.

However, the former prosecutor’s success in reversing the decision is remote since 3 of the Supreme Court’s Justices voted for the annulment in the TSE – Alexandre de Moraes, Cármen Lúcia, and Nunes Marques.

At the Supreme Court, Justice Dias Toffoli will be the rapporteur of the appeal already filed by the congressman.

He will have to analyze the injunction presented by the congressman’s defense last Thursday (June 1, 2023), and if he finds it necessary, he may request information from the TSE about the case.

HE RECEIVED 344,000 VOTES

Dallagnol was the most-voted congressman in Paraná in the 2022 elections.

He received 344,917 votes.

The Electoral Court decided that Dallagnol’s votes could be destined for his party, Podemos.

However, after recounting the votes, the TRE-PR (Regional Electoral Court of Paraná) determined that the vacancy would remain with the evangelical pastor Itamar Paim, who received 47,052 votes.

With information from Poder360

News Brazil, English news Brazil, Brazilian politics