The Plenary of the Superior Electoral Court (TSE) ruled for the dismissal of the Electoral Judicial Investigation Action (Aije 194358), which requested the cassation of the ticket formed by Dilma Rousseff and Michel Temer, re-elected to the Presidency of the Republic in 2014. By the score of 4 votes to 3, the majority of the Justices understood that there was no abuse of political and economic power in their campaign.
The trial of the three cases (Aije 194358, Aime 761 and RP 846) filed by the PSDB and the Coalition Muda Brasil was concluded on Friday 9 June, after eight sessions held that week to examine the matter. The decision on the proceedings had been suspended on April, when the Plenary decided to hear new witnesses.
At the beginning of the proceedings, Deputy Electoral Attorney General Nicolao Dino filed a motion challenging Justice Admar Gonzaga’s participation in the trial, alleging that he had been Dilma Rousseff's lawyer in the presidential campaign of 2010. The motion was unanimously dismissed.
Napoleão Nunes Maia
Justice Napoleão Nunes Maia Filho, during his vote, differed entirely from rapporteur Herman Benjamin. "My vote is to refuse the evidence to the claims, and to totally reject the claims," he said at the end of the vote. According to him, "the judge must always behave within the limits of the case and the congruence between the cause of action and the claim must be maintained."
Napoleão Maia cited case law from both the TSE and the Superior Court of Justice (STJ). "The claim must be interpreted restrictively. The judge is the addressee of the evidence, not its author. One cannot accept a judicial condemnation without conclusive evidence" he said.
Napoleão Maia stated that if a survey of political and economic abuse were made in elections at several levels, similar cases would be found, for example, in elections for city councilors in the most remote municipalities. "The matter is not new in this court, but what is unusual is the political and public appeal of the parties involved. These are matters that deserve exemplary punishment, but in the correct instances determined by the Constitution to punish these crimes."
He concluded that the Brazilian electoral system "is absolutely strict", in establishing very short deadlines, even schedules, to carry out procedural acts. "This is because what has to be observed here is popular sovereignty," he said.
Justice Admar Gonzaga, the second vote, also diverged from rapporteur Herman Benjamin, dismissing the claims as unfounded. He did not recognize the abuse of political and economic power of the ticket. In addition, for him, it was not possible to state that there were transfers from Petrobras' bribes to the 2014 campaign, nor was there any concrete evidence that the donations made by companies had illegal origins.
"The matters brought with the initial procedures do not contemplate the illicit allusions to uncollected campaign resource receipts, not even the alleged purchase of political support or the movement of resources abroad," Gonzaga said.
For the Justice, it cannot be admitted that, once the case has been initiated, a magistrate may consider supervening facts unrelated to those initially narrated. "However grave the illicit may be, it cannot be considered in the examination of the present judgment. Therefore, I understand that the trial of the case should be exclusively based on the allegations contained in the initial petition, and I add that I will not take into account what was assessed after March 1 of this year, "he claimed in his vote.
Gonzaga did not consider the analysis of the evidence produced in the last quarter, with the input of the testimonies of Marcelo Odebrecht, João Santana and Mônica Moura. For him, there is no way to gauge credibility of the testimonies of the informers, which must be relativized, with "great caution".
"Although these are extremely serious revelations in a more open perspective on the object of the case that I have already rejected, the statements do not have any direct or indirect correlation with the allegation narrated in the original proceedings, that is: the official donation by Petrobras contractors as a bribery scheme".
Justice Tarcisio Vieira began his vote by analyzing the violations pointed out by the representatives before the evidences, based on the original cause of action. He drew a distinction between the pre and post-Odebrecht phases, and reported that he would not dwell on the evidence produced since March 1 of this year.
According to him, facts reported by former Petrobras officials are unclear as to the beneficiaries of the misappropriation and do not refer to the financing of the 2014 election. "I share the concern with the public prosecutor's office, that a large scheme based on illicit resources derived from contracts with Petrobras was proven, but it was not established whether these resources were destined to the campaigns or not."
For the Justice, other testimonies also collected by the Electoral Court did not prove that there would be payment of bribes for the presidential campaign that year, and there was no evidence of them. In addition, illicit donations were from previous years.
Tarcisio Vieira stressed that it is evident that consistent irregularities were practiced within the scope of the contracted printing companies, but they do not constitute abuse of political power, nor do they characterize electoral offense. He also acknowledged that there are very serious facts that must be verified by the competent spheres and that "it is recomforting to note that these practices have already been the object of strong state action, as it has been happening in Lava Jato."
Tarcísio Vieira concluded his vote by accepting the preliminary increase of the cause of action and rejecting all other preliminary questions. In analyzing the merits, he dismissed the claims brought by the PSDB as totally unfounded.
In voting, Justice Luiz Fux joined the rapporteur, Herman Benjamin, to fully annull the Dilma-Temer ticket in the 2014 elections. According to the Justice's vote, "today we are living a real nightmare because of the discredit of the institutions, the shame, the low esteem because of the shamelessness of political agents who violated popular sovereignty. The political environment today is severely contaminated. And the time for redemption is now."
Luiz Fux considered that the facts that led to the discussion in the trial "are very serious, unbearable." "Will I, as a magistrate who is going to judge a case, be comfortable in using a procedural act so as not to face reality?" Asked the Justice, adding: "No."
In accompanying the rapporteur, the Justice considered that a fair and effective decision is one that is made taking into account the reality. "Law and reality cannot be precisely separated in a final decision," he said.
"I welcome the conclusions of the rapporteur," said Fux, in reporting the relevant points he considers sufficient for the annullment of the ticket, such as the existence of proven bribery at Petrobras, among others. Finally, the Justice said that he voted for the annullment of the ticket as a magistrate and "as a Brazilian I love this country, which is the cradle of our children and grandchildren, in the name of ethics and morality."
The next to last speaker on Friday afternoon (9), Justice Rosa Weber, praised the "brilliant vote" of the rapporteur, Justice Herman Beijamin. "I commend your excellent work and I join Your Excellency in the historic vote you have given, at least in the part in which it was exposed," said the Justice.
In support of her decision, Rosa Weber stated that "although it continues to prevail over the immutability of the subjective and objective elements of the demands of the judicial proceeding and also the requirement of correlation between the initial petition and the sentence (principle of congruence), she has learned that the judge may resort to certain situations, especially when at the time of the production of the evidence, a new fact arises that leads to the same consequence sought by the records of the original issue".
Regarding the new testimonies made by the Odebrecht executives and marketing specialists João Santana and Mônica Moura, collected by the Electoral Court, the magistrate said that they were all heard as witnesses and not as collaborators "they did not have any advantage." According to Justice Weber, law authorizes that new facts, discovered in the investigation phase of the process, can be included in the process if they relate to the original claim.
Still in her vote, Weber claimed that the proceeding had brought to light a series of facts of enormous illicit potential that were not the subject of the initial proceeding. For her, if this practice persists, it will be very sad for Brazil. "Each magistrate must make their judgment on possible actions that question other candidacies", she said.
At the time, the magistrate also mentioned two very important topics. The first one about spending on printing companies and the second one about the abuse of economic power, which was set up to receive official donations from companies hired by Petrobras on the grounds of distribution of bribes, and agreed with an observation made by the rapporteur that "these actions are daughters of a failed political system that no longer holds itself".
The President of the Court, Justice Gilmar Mendes, followed the dissent initiated by the Justice Napoleão and dismissed the requests of annulment of the Dilma–Temer ticket. He drew attention to the uniqueness of the case.
"The subject of this question is very sensitive and does not compare with any other because it has a background of popular sovereignty. That is why the Constitution establishes limits [...] One cannot replace a President of the Republic every time one so desires. The Constitution values popular sovereignty despite the value of our decisions", he said.
He recalled that he defended the opening of the proceedings on account of the serious facts under judgment, but that the decision was not taken with a view to annulling the mandate. "Because I have the exact notion of the responsibility that this entails for the Judiciary. And it is clear that, all matters of style aside, an expansion of the process has occurred ", he said.
Gilmar Mendes emphasized that the facts reported by him at that time were strictly pertinent to the cause of action. "I thought it was important to know the insides of this system. I did not think I would have Dilma Rousseff in the TSE and I never imagined expanding an object or cause of action, those delimited by the action itself”, he said.
The Justice considered that in the evidence produced by the rapporteur, the facts that emerged during the so-called "Odebrecht phase", were not related to the initial cause of action, that is, the companies that had contracts with Petrobras and passed a percentage of these contracts to candidates and political parties.
"I am not denying, in a merely imaginary way, that at least part of these resources were passed on to the presidential campaign of the Dilma-Temer ticket, but only concluding, from the evidence produced in the records related to the initial cause of action, that the evidentiary framework does not prove itself sufficiently conclusive to arrive at severe sanctions, because the proof of these records is largely based on testimonies stemming from plea bargains made at other instances of the Judiciary Power", he stressed.
According to the President of the TSE, all testimonies of the executives heard in the process showed a corruption scheme until mid-2014 involving the companies that had contracts with Petrobras, but did not prove that the funds channeled to the political parties were used directly in the presidential campaign of that year.