São Paulo's Regional Electoral Court (TRE) and Court of Justice (TJ) criticize Lava Jato's attacks on the Electoral Court: 'a result of monetary interests'

247 - In a statement released to the press, the presidents of the Court of Justice of São Paulo and the Regional Electoral Court of São Paulo, Manoel Pereira Calças and Carlos Eduardo Cauduro Padin, respectively, refuted the criticisms made by the prosecutors of Curitiba and considered the decision of the Supreme Federal Court regarding the competence of the Electoral Court in cases that judge crimes related to electoral offenses as "technical perfection".

According to the judges, the Electoral Court "is the constitutionally ideal forum to prosecute and judge electoral crimes, as well as those related to them."

Regarding the attacks made on the electoral courts, the judges said they were "the result of unfair aggressions and originating from subordinate or monetary interests," in a clear reference to the billion-dollar fund that the Federal Public Prosecutor's Office of Paraná wanted to create through the establishment of a foundation.

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A week ago, the Supreme Federal Court (STF) reaffirmed its traditional stance regarding the jurisdiction of the Electoral Courts. There is no doubt about the technical soundness of the decision.

In the fourth interlocutory appeal in Inquiry No. 4.435/DF, the Supreme Federal Court (STF), by a 6-5 vote, decided that the Electoral Court has jurisdiction to prosecute and judge common crimes connected to electoral crimes. The inquiry was initiated to investigate the former mayor of Rio de Janeiro, Eduardo Paes, and Federal Deputy Pedro Paulo, for the alleged crimes of passive corruption, active corruption, money laundering, tax evasion, and electoral fraud. According to the reporting Justice, Marco Aurélio, jurisdiction lies with the Electoral Court of Rio de Janeiro for offenses committed in 2010 and 2012; however, conduct committed in 2014 would be subject to processing and judgment by the STF, given its jurisdiction based on prerogative of forum.

Legally, both the Federal Constitution and the infra-constitutional legislation establish the cases of jurisdiction of the Federal Courts. Article 109, IV, of the Federal Constitution prescribes that it is the responsibility of federal judges to prosecute and judge "political crimes and criminal offenses committed to the detriment of assets, services or interests of the Union or its autonomous entities or public companies, excluding misdemeanors and without prejudice to the jurisdiction of the Military Courts and the Electoral Courts".

The Federal Constitution itself makes an exception to the jurisdiction of the Federal Courts in crimes committed against the interests of the Union, assigning it to the Electoral Courts. It is clear that there is no conflict between the law and the Constitution, but rather an exception inserted in the constitutional text itself, so as to give precedence to the jurisdiction of the Electoral Courts over that of the Federal Courts. It is not said that there is an exhaustive list, but the exceptionality shows that the Constitution also included, in its text, the jurisdiction of the Electoral Courts, albeit in a contrario sensu sense.

The Electoral Court is a specialized court that safeguards the democratic principle and guarantees the integrity of the electoral process. But it doesn't only that. Alongside the administrative function of conducting elections, there is also a judicial function, which it has performed satisfactorily since its creation in 1932.

Specifically regarding the jurisdiction of the Electoral Courts, the Federal Constitution stipulates that it will be defined by complementary law (article 121, caput). Law No. 4.737/65, which instituted the Electoral Code, was received by the 1988 Federal Constitution as a Complementary Law, and therefore may stipulate the jurisdiction of electoral judges. In its article 35, II, it states that it is the responsibility of electoral judges to "process and judge electoral crimes and related common crimes, without prejudice to the original jurisdiction of the Superior Electoral Court and the Regional Electoral Courts".

The literal wording of the provision is sufficient to conclude that the Electoral Court has jurisdiction to prosecute and judge electoral crimes and related common crimes.

Furthermore, the Code of Criminal Procedure, in its article 78, IV, provides that, to determine jurisdiction by connection or contiguity, when there is a conflict between common and special jurisdiction, the special jurisdiction shall prevail. As already established, the Electoral Court has specialized jurisdiction, therefore its competence prevails over that of the Common Courts (State and Federal) when there is a connection between electoral crimes and common crimes.

Furthermore, it is important to emphasize that the Electoral Court will not necessarily handle all criminal proceedings involving electoral crimes and common crimes; the rule established by the legislator is quite clear on this point: there will only be a trial and judgment by the Electoral Court in cases of connection between electoral crimes and common crimes, a connection that will be assessed exclusively by the competent body of the Electoral Court. If there is no connection, the case files are simply returned to the court of origin.

On the other hand, there is no doubt about the structural capacity of the Electoral Court, despite some voices expressing differing opinions. The Electoral Court of São Paulo is supported by more than 3.500 employees and 393 electoral judges, in addition to interns and employees seconded from municipal governments and the government of the State of São Paulo.

With effort, elections and trials are, as before, always on time. The Electoral Court is considered the fastest and most efficient of the Brazilian courts, and there is no reason for it to lose this speed and efficiency. Obviously, if there is a sudden increase in workload, there will be the necessary adjustments in terms of material and human resources, including judges and staff.

The Court of Justice of São Paulo has always stood by the Regional Electoral Court of São Paulo and will continue to monitor all necessary aspects to ensure that services are carried out effectively, on time. The Court of Justice of São Paulo, through this statement, reaffirms its ties with the Electoral Courts of São Paulo and Brazil.

It is worth reiterating that electoral judges are state judges, comprising, in São Paulo, the largest Court of Justice in Brazil and perhaps the world. They are all state judges, approved in a highly competitive examination of complex legal difficulty, with expertise in various branches of law, especially electoral law, which is guaranteed to them through a constitutional rotation system that has served very well in the renewal and good performance of electoral activities. They are all familiar with simple and complex cases, civil and criminal, without any kind of lack of preparation.

The electoral prosecutors also come from within the ranks of the State Public Prosecutor's Office, demonstrating equal commitment and legal expertise capable of handling the important issues raised in electoral proceedings.

The electoral judicial police, in turn, is the Federal Police itself, which is also responsible for investigating electoral crimes, so no change in this regard will occur when the investigations are transferred to the Electoral Court.

In light of all the above, it is clear that the Electoral Court, not only legally but also pragmatically, is the constitutionally ideal forum to prosecute and judge electoral crimes, as well as those related to them.

The attacks directed at us these days are the result of unjust aggressions stemming from base or monetary interests. Our commitment is to Brazilian representative democracy and to the community. Our actions, as always, are guided by ethics and the application of justice.