The independence between civil and criminal instances is sufficient

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Allow the Electoral Court, based on the same facts and evidence, to rule out the occurrence of the electoral offense of buying votes, but impose a criminal penalty for the same conduct. senivpetro/freepik Acquitted of electoral crime, candidate was criminally convicted of buying votes by supplying gasoline to his supporters senivpetro/freepik With this understanding, the Superior Electoral Court dismissed the appeal of former councilor of Nova Andradina (MS) João Dan (PSDB), who was prosecuted twice for distributing fuel to voters and supporters in the 2016 elections. First, he was the target of an electoral judicial investigation for illegally capturing votes, an act described in Complementary Law 64/1990. However, the Regional Electoral Court of Mato Grosso do Sul understood that there was not enough evidence to constitute vote buying.

Afterwards, the same TRE-MS sentenced João Dan to three years and four months in prison under an initial open regime for the crime described in article 299 of the Electoral Code: giving any advantage to obtain a vote. The court therefore understood that there was evidence for a criminal conviction for vote buying. Both convictions were referred to the TSE in a special electoral appeal. And in them, the court chose to maintain the TRE-MS conclusions because reviewing the acquittal in Aije or the criminal conviction would imply revol Special Phone Number Data ving facts and evidence, a measure prohibited by Precedent 24. Minister Raul Araújo was defeated, who challenged the principle of independence of judicial bodies because he understood it as incongruous for the same facts to generate civil acquittal and conviction in the criminal field, where the principle in dubio pro reo (when in doubt, in favor of the defendant) must prevail. . Antonio Augusto/Secom/TSE Minister Raul Araújo's disagreement challenged the separation between the civil-electoral body and the criminal body Antonio Augusto/Secom/TSE Same facts? The trial of the appeal against the criminal conviction ended in the session on Tuesday (28/3).



The majority was formed around the vote of the rapporteur, minister Alexandre de Moraes, who maintained the punishment based on electoral obstacles. Minister Raul Araújo's divergence was based on the fact that the civil-electoral offense of illegally capturing votes and the criminal offense of buying votes share the same basic principle: the specific intention of obtaining the voter's vote through the offer of benefit. "How can the regional court, based on the same facts and evidence, understand in the civil case that there was no intention to buy votes and, in the criminal case, draw the opposite conclusion, establishing that there was specific intent in corrupting the voter's vote?", he asked Araújo. In a unanimous vote, minister Ricardo Lewandowski stated that the TRE-MS decisions were not based on exactly the same facts, as Aije stuck to distributing fuel on a specific date in June 2016, while the criminal conviction was based on more than three months of the conduct. The difference in the evidence base is what justifies the different conclusions, according to him.