On the fourth anniversary of the Clean Record Act (Supplementary Law N. 135/2010), it will be applied for the first time in Brazil´s general elections. Sanctioned on June 4, 2010, the rule was backed by the signatures of 1.3 million Brazilians when the National Congress passed it. It establishes 14 cases of ineligibility, preventing impeached politicians, individuals declared guilty by a panel of judges in criminal cases, or those who resigned from office in order to avoid an impeachment process from running for elective offices. As set forth in the aforementioned Law, such individuals will be ineligible for a period of eight years.
Effective as of June 7, 2010, the date it was also published in the Federal Gazette, the Clean Record Act was first applied in the municipal elections of 2012. In August 2010, the Superior Electoral Court (TSE) reviewed the first case where the registration of a candidacy had been denied on the grounds of the Clean Record Act, and decided that the law would be applicable to the country´s general elections, which would be held later that year. However, the Federal Supreme Court (STF) established that the law should not apply to the general elections of 2010, at the risk of violating Article 16 of the Constitution (principle of the annual nature of electoral laws), which establishes that “a law that alters the electoral procedure shall not apply to the elections that take place within one year of it being in force”. After two years of review, the STF held that the Clean Record Act was constitutional in February 2012.
During that year, thanks to the Clean Record Act, at least 868 candidates willing to run for mayor, vice-mayor and city councilors were prohibited to participate in the elections. Electoral Courts adjudged thousands of cases where candidates had candidacies challenged and were considered ineligible on the grounds of the applicable legislation. The number of complaints challenging the registration of candidacies in the elections of 2012 that was forwarded to the TSE amounted to 7,781 cases; 3,366 out of which consisted of appeals that referred to the Clean Record Act, which represented 43% of the total number of cases submitted to that Court.
Eilzon Almeida, Election Law expert and Court Analyst at the TSE, noted that the Clean Record Act does not consist of a new law providing for cases of ineligibility, pointing that Supplementary Law N. 64/1990 (Ineligibilities Act) was the first rule on the matter, being later amended by Supplementary Law N. 135/2010 (Clean Record Act).
According to Eilzon, the popular demand to have that law amended grew stronger because the Ineligibilities Act was outdated after being effective for almost 20 years. Periods of ineligibility, as established in law, were relatively short, lasting for only three years. As noted by Eilzon, paradigmatic cases that included, for instance, resigning from office in order to avoid being impeached, were not even addressed by the law. Being impeached for buying votes consisted of another example that would not prevent the candidate from running in the next election. “Cases like these combined with the need to establish stricter timeframes for cases of ineligibility justified the amending law, which resulted from a popular demand for stricter rules regarding election candidacies”, he concludes.
Misconduct in office
Aimed at supplying the society and its institutions with mechanisms to identify those against whom a final judgment of conviction was entered (res judicata), the National Council of Justice (CNJ) launched the National Register of Individuals Found Guilty for Misconduct in Office in 2007. As of July 2013, the Judicial Branch began submitting to the said register information on individuals whose convictions would render them ineligible, as established in the provisions set forth in the Clean Record Act. Because of such modifications, the system began being referred to as the National Register of Individuals Found Guilty for Misconduct in Office and for Acts that Render Them Ineligible (CNCIAI).
All member courts of the Judicial Branch are required to feed the register with updated information. More recently, the CNJ signed an agreement with the courts of accounts of the Federal District and other 26 states that will get these courts to forward information that makes it easier to identify ineligible candidates, including the accounts of public offices or functions that were rejected on the grounds of incurable irregularities (Paragraph 5, Article 11 of Law n. 9,504/1997) – which is one of the cases of ineligibility for a period of eight years. The aforementioned agreement was also signed by the National Disciplinary Board of Courts, the Superior Court of Justice (STJ), the Council of Federal Courts (CJF), the Disciplinary Board of Federal Courts, the Superior Military Court (STM), the Disciplinary Board of Military Courts and the Federal Court of Accounts (TCU).
CNCIAI publicly disclosed information may be accessed at http://www.cnj.jus.br/sistemas. It is also possible to carry out searches under this link by providing the name or CPF (Individual Taxpayer ID Number) of the person that is being investigated.
As established in the Clean Record Act, an individual will be considered ineligible if found guilty for any of the following offenses: crimes against the economic order (antitrust felony), the full faith and credit requirement, the public administration and public property; crimes against the private wealth, the financial system, the stock market as well as the offenses set forth in the law that regulates bankruptcy; crimes against the environment and public health; electoral crimes punished with imprisonment; abuse of office, when the offender is found guilty and punished with the loss of office or considered unqualified to exercise a public function; laundering or concealment of property, rights and valuables; drug trafficking, racism, torture; terrorism, and heinous crimes; enslavement; crimes against life and sexual dignity; crimes perpetrated by criminal organizations, and conspiracy.
According to the Clean Record Act, those whose accounts related to the exercise of public office or function were rejected on the grounds of incurable irregularities that led to office misconduct will also be considered ineligible. The same applies to public office holders who benefited or ensured that a third party would benefit from abuse of economic or political power.
Individuals found guilty for electoral corruption; vote buying; illegal raising, donation or expenditure of campaign funds; or perpetrators of actions prohibited to public officials during the course of electoral campaigns that are punished with the cancellation of their registration or certificate of election will also be considered ineligible.
Politicians that resign from office as of the filing of a complaint or the opening of a case on the grounds of the breaching of a provision established in the Federal or State Constitution, or in the organic law of the Federal District or of any Brazilian Municipality will also be considered ineligible. The same applies to those who have been sentenced with the suspension of their political rights because of misconduct in office combined with corrupt intent, which resulted in damages to public property and unjust enrichment.
Other cases of ineligibility include individuals prevented from exercising their profession because of ethical-professional violation, and those who were found guilty for the breakdown or simulated breakdown of marriage or informal marriage (cohabitation) with the purpose of avoiding being subject to the ineligibility clause.
The Clean Record Act also applies to those who have been removed from public office as a result of administrative or judicial proceedings, and to individuals and heads of legal entities that made illegal electoral donations. Finally, judges and prosecutors who are punished with forced retirement, including those sentenced with loss of office or those who requested to be discharged from office or applied to voluntary retirement during the course of a disciplinary administrative proceeding will also be considered ineligible.
Click here to read the Clean Record Act.