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Brazilian Federal Supreme Court rules that term of ineligibility prior to the Clear Records Act is valid

Wednesday, October 4, 2017

By a majority of votes (6 x 5), the Brazilian Federal Supreme Court (STF) has ruled that the application of eight years of ineligibility for those who have been convicted by Electoral Courts, for abuse of economic or political powe, prior to the Complementary Law (LC) 135/2010 (Clear Records Act) is valid. The possibility of modulating the effects of the Court's decision and deciding the thesis that will have general repercussion may be analyzes in this Thursday's (5) session.

Justices Luiz Fux, Edson Fachin, Luís Roberto Barroso, Rosa Weber, Dias Toffoli and Chief Justice Cármen Lúcia voted for the retroactive application of the eight years inelegilbility clause. The rapporteur, Justice Ricardo Lewandowski and Justices Gilmar Mendes, Alexandre de Moraes, Marco Aurélio and Celso de Mello dissented.

The case

The appelant is a Nova Soure (BA) city councillor who was sentenced in an electoral lawsuit for abuse of economic power and purchase of votes for events that took place in 2004, and was ineligible for three years. In the 2008 elections, he ran for office and was elected for another term in the City Council. However, in 2012, his candidate registration was rejected because the Clear Records Act  (which became effective in that election) increased from three to eight years the period of ineligibility set forth in article 1, item I, letter "d", of the LC 64/1990.

The legal controversy contained in the appeal consisted in knowing whether or not there is an offense against the constitutional guarantees of res judicata and non-retroactivity of more severe penalties (article 5, XXXVI, Federal Constitution) in the case of increasing the period from three to eight years of ineligibility, provided for in article 22, item XIV, of LC 64/1990, due to the conviction for abuse of political power or economic power by virtue of a final decision (when no further appeal is possible).

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