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Supreme Court decides for the constitutionality of the Clean Record Law

Friday, February 17, 2012


The Justices of the Brazilian Federal Supreme Court (STF)
 concluded on Thursday (16) the joint analysis of Declaratory Actions of Constitutionality (ADC 29 and 30) and the Direct Action of Unconstitutionality (ADI 4578) dealing with the Complementary Law 135/2010, the Clean Record Law (Lei da Ficha Limpa). By majority vote, the understanding prevailed in the constitutionality of the law, which can be applied in the elections this year, reaching acts and events occurring before its term.

The Complementary Law 135/10, which gave new text to the Complementary Law 64/90, imposed other hypotheses of ineligibility aimed at protecting the integrity and morality in the exercise of administrative mandate under Paragraph 9 of Article 14 of the Constitution.

The law states that will be considered ineligible candidates who are convicted in a final decision or rendered by a judicial collegiate, due to crimes against popular economy, public faith, public administration and public assets, against private property, the financial system, the stock market and crimes related to the law that regulates bankruptcy, and against the environment and public health.

Will also be declared ineligible candidates who have committed electoral crimes for which the law determines sentence of imprisonment; abuse of authority; in cases where there is condemnation of removal from office or disqualification from public office; laundering or concealment of property, rights and values; trafficking narcotics and similar drugs; racism; torture; terrorism and hideous crimes; reduction to a condition analogous to slavery; crimes against life and sexual dignity; and crimes committed by criminal organization, gang or band.

The Clean Record Law originated from a project of popular initiative that collected signatures from more than 1% of voters in the country. The text was approved by the Congress in 2010.

Understand the trial.

questions ineligibility due to sanction of professional council

In March 2011, the National Confederation of Liberal Professions (CNPL) proposed the Direct Action of Unconstitutionality of 4578 questioning the device of the Clean Record Law that makes ineligible for eight years who is excluded from the profession exercise, by decision of the competent professional institution, due to ethical and professional violations.

For the confederation, the letter "m" of Article 1 of the LC 64/1990, with the text provided by LC 135/2010, suffered from "stoned unconstitutionality". That because, for the entity, the professional advice agencies are strictly supervisors of professional activity, "which is why the penalties that are, eventually, applied to its supervised can not overflow their corporate world". With this argument, the CNPL seeks a declaration of unconstitutionality of the device.

PPS and OAB defend the constitutionality of the Clean Record Law

In April 2011, the Popular Socialist Party (PPS) has requested that the Court recognizes the validity of the Clean Record Law and its application in 2012 elections to events occurring prior to the effectiveness of the standard. Through the Declaratory Action of Constitutionality (ADC) 29, the party wants to see confirmed its understanding that the provisions of LC 135/2010, dealing with ineligibility can be applied to events prior to the validity of the rule without causing any prejudice to the principle of non-retroactivity of laws and legal certainty.

The PPS sustains its claim under article 14, paragraph 9 of the Federal Constitution. According to the party, this device aims for people whose previous life would unauthorize, in theory, access to an elective office. And, as the provisions of the Clean Record Law only give effect to what determines the Constitution, can be applied to previous acts and events. As for the apparent conflict with the principle of non-retroactivity of criminal law, the party believes that disqualification is not punishment but merely a restriction on the right to be elected.

Finally, the party said it feared that after the Supreme Court ruled that the Clean Record Law does not apply to the election of 2010, questions may arise from candidates who will compete in the 2012 elections, regarding the constitutionality of the application of the law to acts prior to the edition of the norm. Therefore, PPS asks the Court to declare the constitutionality of applying the rule to the facts prior to its edition, even to prevent differences of understanding causing discredit to the law.

In the ADC 30, filed in May, the Bar Association of Brazil (OAB) requires that the Clean Record Law is declared constitutional. "The society and the legal community are discussing the validity and constitutionality of the Law, creating a fair fear of the new situation of legal uncertainty to be designed in the municipal elections of 2012", says the president of OAB, Ophir Cavalcante.

In the lawsuit, the OAB said that the Clean Record Law, when establishing new hypotheses of ineligibility, does not violate the principles of the fairness and proportionality. It further contends that the application the rule to acts and past events does not offend the res judicata, the right acquired and perfect legal act. Also according to the entity, it is not applicable to the norm the argument that it would be retroactive to undermine convicted politicians.

"There would be no sense for the Complementary Law to establish new hypotheses of ineligibility and not transcend its effect to acts/facts before its publication (June 2010), as the Federal Constitution itself determines it is observed the early life of the candidate", says the president of the OAB.

He also stresses that ineligibility is not penalty and does not impose punishment on anyone. As the president of the OAB says, the rules and penalties contained in the Clean Record Law are of electoral nature. "The ruling in this case is obviously different because it aims to protect another constitutional value: the administrative morality", he says. The OAB adds that there is, also, disagreement in the various regional electoral tribunals regarding the norm.

In both cases, the authors request that the Supreme Court recognizes the constitutionality of the rule in its entirety, so it is not questioned by other actions.

Minister Luiz Fux, rapporteur

In the joint trial of the three actions, which began in November 9th, manifested the parties' representatives, followed by the Government Lawyer and the Federal Public Prosecutor. Then, Minister Luiz Fux, rapporteur of the three actions, presented his vote.

Fux rejected the plea ADI 4578, but declared the constitutionality of part of the norm, making an exception in which pointed out the disproportion in setting the period of eight years of ineligibility after serving the sentence. For him, this time should be deducted from the period between conviction and the sentence final judgment. Among other arguments, the Minister made a historical analysis of the principle of presumption of innocence, to affirm his understanding that, unlike criminal law, this principle should be made more flexible under the electoral law. Moreover, said he believed the norm complies with the tripod appropriateness, necessity and proportionality.

After the manifestation of the rapporteur, Minister Joaquim Barbosa asked for view the file, suspending the trial.

Minister Joaquim Barbosa

On December 1st, the trial was resumed, with the adjustment in the vote of Minister Luiz Fux and the presentation of the vote of Minister Joaquim Barbosa.

Minister Luiz Fux changed his vote on the provisions of the letter "k" of Article 1 of the LC 64 with the wording given by LC 135, to declare this item also constitutional in concerning the spirit that motivated the enactment of the complementary law. This device makes ineligible those who renounce their mandates since the offer of representation or petition able to authorize the prosecution of an infringement of device of the Federal Constitution, of the State Constitution, the Organic Law of the Federal District or the Statute of the City, for elections that take place during the remainder of the term for which they were elected and the eight years after the end of the legislature.

In his vote, Minister Joaquim Barbosa noted that the Clean Record Law is "in perfect harmony with paragraph 9 of Article 14 of the Federal Constitution (FC)". Noting that the Federal Constitution of 1967 attributed, in article 148, to the law complementary to establish other cases of ineligibility, in addition to the listed therein, aiming at the preservation of the democratic regime, of administrative integrity, the normality and legitimacy of the elections, against abuse of economic power and the exercise of public positions or functions, the Minister Joaquim Barbosa noted that the country took 50 years to establish these principles in the Law of Clean Record, issued by the signature gathering in the streets for the submission of the bill complementary. And it still took 23 years after the promulgation of the Constitution of 1988, despite the clarity of its statement on the matter. He also pointed out that even the Complementary Law 64 proved to be inept, by setting tight ineligibility deadlines and the requirement of finality of conviction.

In judging the constitutional device of the Clean Record Law questioned in ADI 4578, Minister Joaquim Barbosa noted that "if someone is unable to act in their own area of ​​expertise, it is impossible to admit that can take care of public affairs".

According to the Minister, the claims of unconstitutionality of the LC 135 "result from a narrow interpretation of the Constitution, which favors a minority of elected officials to the detriment of the whole society that strives for moralization of Brazilian politics, so there is no more deception of the electorate, manipulation and false promises, so that voters begin to have real freedom of choice".

With the request of view of Minister Dias Toffoli, the trial was suspended again.

Minister Dias Toffoli

Resuming the trial on February 15th, the Minister Dias Toffoli based his vote on the presumption of innocence, pointing out that can only be considered ineligible citizens who have final conviction (when there is no more chance of appeal). The Clean Record Law allows the ineligibility to be declared after the decision of a collegiate body. The Minister invoked Article 15, paragraph III of the Federal Constitution, which only allows the suspension of political rights by a final sentence. Regarding the retroactivity of the law, Minister Dias Toffoli voted for its application to events that occurred prior to its editing.

Minister Rosa Weber

Minister Rosa Weber voted for total constitutionality of the Clean Record Law. She said the norm holds fourth place in the ranking of the law of popular initiative that succeeded in approval in Brazil, a fact that, for the Minister, "highlights the Herculean efforts of the Brazilian population to bring for the harvest politics to a norm of eminent moralizing character”. She noted that the main constitutional purpose of ineligibility rules is to ensure sovereignty in its fullness and there is not a sanction character or any legal criminal penalty in these rules. "The scope of ineligibility is not to punish. The rule of law does not have its destination in the individual. The focus is other. The focus, in my judgment, is the community, seeking to preserve the legitimacy of the elections, the authenticity of popular sovereignty, and ultimately ensure the process of realizing the democratic rule of law", she said.

Minister Cármen Lúcia

Minister Carmen Lucia, defending the constitutionality of the law, said that representative democracy demands an ethical representation. If it is not ethical, it is not legitimate. According to her, life is all we do every day. "And, in this case, the Law traces, marks and cuts which is the stage and data in this past life that must be taken into account." Thus, the Minister said she does not see unconstitutionality, but "preaching and the reaffirmation of each of the constitutional principles". Regarding the discussion about whether there was any affront to the so-called principle of presumption of innocence, the Minister recalled that it was decided during the discussions for drafting the Constitution of 1988, that Brazil would adopt the principle of not guilty in the criminal area. And, in the case at trial, it is based on electoral law. The Minister said she understood that those who question the Law are based on a premise from which she does not agree, in the sense that the ineligibility would be a form of punishment.

With these arguments, the Minister followed the understanding of the rapporteur on the dismissal of the ADI 4578, and the partial granting of the ADCs 29 and 30, following the rapporteur at the point where Minister Fux considered disproportional to fix the term of eight years of ineligibility (letter "e" of paragraph I of Article 1 of the norm) after serving the sentence, because the delay shall be deducted from the time between conviction and the sentence final judgment.

Minister Ricardo Lewandowski

In the last session of the trial, Minister Ricardo Lewandowski voted for total constitutionality of the Clean Record Law. He noted the norm was supported by more than 1.5 million signatures, had unanimous approval of both houses on Congress and was enacted without any veto. "We are facing a statute that has the explicit support expressed by representatives of national sovereignty", he concluded.

As for the principle of no guilt, the Minister explained that the res judicata lies for cases of criminal sentence and that the presumption of innocence can not be interpreted broadly for any law restrictive situation and due to judicial act.

Minister Lewandowski also elaborated on understanding of the Superior Electoral Court (TSE), chaired by him, that the Court of Jury configures "collegiate body of court" for purposes of application of the Clean Record Law. "The law (Clean Record) dealt with the collegiate bodies, not of state's appellate courts. What it wanted to avoid was a subjective judgment of a single judge", he said, adding that the case handled by the TSE was person convicted for the death of two under aged, in 1993, who asked the registration of application. "Can that person run for public office?" He asked.

Lewandowski said that, faced with two constitutional values ​​at the same level - the suspension of political rights only through a final criminal conviction (subsection III of Article 15) and administrative integrity and morality for the office considered the early life of the candidate (paragraph 9 of Article 14 of the Constitution) -, the latter must prevail in the analysis of the Clean Record Law. Faced with two constitutional values ​​of the same rank, the constituent chosen, legitimately, for those housed in paragraph 9 of Article 14 of the Constitution.

Minister Ayres Britto

Minister Ayres Britto manifested in favor of the Complementary Law 135/2010 and said he understood that the Brazilian Constitution had to be even harder to combat immorality and misconduct. He noted that paragraph 4 of Article 37 of the Constitution provides that acts of administrative dishonesty will cause the suspension of political rights, the loss of public office, the unavailability of property and compensation to the treasury, in the form and gradation established by law, without prejudice to the applicable criminal process. According to the Minister, the Clean Record Law has the ambition to "change a culture that is pernicious, deleterious, of mistreatment, of misuse of public affairs, to deploy in the country what might be called the quality of political life, by the best selection, the best choice of candidates, of respectable candidates".

Minister Gilmar Mendes

Minister Gilmar Mendes followed the divergence opened by Minister Dias Toffoli, but to a greater extent. For him, the law can not rewind to reach candidates who have already lost their elective offices (governor, vice governor, mayor and deputy mayor) for infraction of a device of the state constitution, of Organic Law of the Federal District or of the Organic Law of cities. According to the Minister Gilmar Mendes, the law can not backdate to achieve actions and past events, under penalty of violation of the constitutional principle of legal security (Article 5, paragraph XXXVI).

Minister Marco Aurélio

When voting, Minister Marco Aurelio manifested himself in favor of the constitutionality of the provisions of Complementary Law 135. The Minister judged totally founded the ADC 30 and dismissed the ADI 4578. Regarding the ADC 29 voted for the dismissal of the action because he believes that the law can not rewind to reach acts and legal facts past tenses to June 2010, because of legal certainty. As for the prediction of ineligibility for those who are convicted of crimes such as, for example, against life, sexual dignity, popular economy, public faith, public administration, public property, environment, public health, among others, Minister Marco Aurelio said the law is not unreasonable. "Failed in private, what will seek in the public arena?" He asked, adding there are practices that deserve "almost the greater ban".

Minister Celso de Mello

The dean of the Supreme Court (STF), Minister Celso de Mello, voted for of unconstitutionality of the rule of the Complementary Law 135/10, the Clean Record Law, which provides the suspension of political rights without the conviction res judicata. "I do not admit the possibility that a appealable decision can generate hypothesis of ineligibility", he said. He also understood that the rule can not rewind to reach past tenses events - events that occurred prior to entry into force of the rule in June 2010. For the dean, it offends the item 5 of Article XXXVI of the Federal Constitution, which establishes the following: "the law does not affect the acquired right, the perfect juridical act and res judicata". According to Minister Celso de Mello, this device is part of the "core" of the Constitution and aims to prevent casuistic law formulations.

Minister Cezar Peluso

The President of the Supreme Court (STF), Minister Cezar Peluso, voted so that the Complementary Law 135/2010, when ruling on ineligibility, can not reach events occurring before its validity. This is because, for the President, the ineligibility would be, for sure, a restriction of rights. Minister Peluso said he agreed with the argument that the time to assess the eligibility of an applicant is the time of the application for registration of application. He stressed that the electoral judge has to establish what rule will apply to make this assessment. To the Minister, it should be a law in force at the time the fact occurred, and not a law edited later.


With the vote of the President, the Supreme Court decided on Thursday (16) the joint analysis of Declaratory Actions of Constitutionality (ADCs 29 and 30) and the Direct Action of Unconstitutionality (ADI 4578), dealing with the Complementary Law 135/2010, the Clean Record Law, by majority vote (7 x 4). The understanding prevailed in favor of the constitutionality of the law, which can be applied in the elections this year, reaching acts and events occurring before its term.

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