On the last occasion (click here) we talked about the origin of the bill of 10 measures against corruption (PL 4850/2016) and the presentation, by Senator Telmário Mota (PDT – RR), of the PLS (Senate Bill) n. 348/2016, one day after the attempted hasty ballot of an amnesty to anyone who had committed the conduct up to that point.
The proposal is to amend Law no. 9504/97 to include art. 32-A, which provides as a term of imprisonment of 2 to 5 years, provides as a crime “to maintain, move or use any resource or value in parallel with the accounting required by electoral legislation”.
This is a proposal regarding the crime of electoral box 2, similar to the bill that deals with the 10 measures against corruption, but will deal autonomously and in another legislative house, as presented directly in the Federal Senate, while the “10 measures “in the Chamber of Deputies.
Paragraph 1 provides that the candidates and managers and administrators of the financial committees of the political parties and coalitions are subject to the captions of the caput . By this writing, it is a crime of its own. Paragraph 2 provides for a cause of increase of 1/3 (one-third) to two-thirds (2/3), in the event that any public or political agent contends in any way for criminal practice.
On October 10, 2016, the special commission analyzing PL 4850/2016 held a public hearing to specifically address, within the framework of that bill, the criminalization of the electoral cash register. Mr. Nicolau Dino, Electoral Attorney General, José Eduardo Alckmin, jurist and former Minister of the Superior Electoral Tribunal, Fabrício Juliano Medeiros, professor of Constitutional and Electoral Law and Cristiano Maronna, lawyer, professor and representative of the Brazilian Institute of Sciences Criminals.
The Special Rapporteur of the Special Commission, Federal Deputy Onyx Lorenzoni, stated that ” Caixa 2 is one of the greatest ghosts of Brazilian public life. Therefore, it is necessary to leave this topic well clarified, well defined. That it should be defined as a crime from now on, I have no doubt . “
Nicolau Dino, arguing for the criminalization of cash 2, said that the current provisions on cash flow 2 are insufficient, either for personal accountability or for predicting consequences for political parties that use this mechanism. For the Prosecutor, there is no specific criminal type currently in criminal law that is applicable to all situations of electoral box 2. It justifies stating that art. 350 of the Electoral Code is applied only at the moment of the accountability of political parties, when there is omission or false declaration, that is, when there is no accountability, the criminal type does not affect.
exposition of the Electoral Attorney General
José Eduardo Alckmin agreed with the exposition of the Electoral Attorney General and defended that art. 350 of the Electoral Code is an open type and there is no crime when there is no accountability. To justify this position, José Eduardo Alckmin affirmed the existence of several judgments of the E. TSE that the denunciation was not accepted because it understands that without a complete demonstration of specific intent, there is no crime. Finally, he suggested that in relation to this type of art. 32- A should clarify that, in these situations, there is no application of art. 350 of the Electoral Code, “so that there is no longer this doubt that has been tormenting the courts”.
According to José Eduardo Alckmin, the current drafting of the proposal would lead to an endless discussion about the correct typification of the conduct.
Fabrício Juliano Medeiros agreed with previous exhibitors, including regarding the inapplicability of art. 350 of the Electoral Code in all situations and the need to create a specific type for electoral box 2.
He stated that the wording of art. 32-A can still be perfected and suggests that it include in the caput the money-worthy, since there may be cash 2 not only in cash but as an estimated donation (service rendering). The second suggestion is to change the final part of the caput from “electoral legislation” to “electoral law”, because that first expression also includes the resolution of the Superior Electoral Court.
It also suggests the deletion of Paragraph 1 of Art. 32-A because it restricts the broad application of the caput. This is because Box 2 can be practiced by third parties and the current wording of the proposal limits the practice of crime only to candidates and managers and administrators of financial committees of political parties and coalitions.
Still, it understands that the project should define, for purposes of application of the norm, who are the public or political agents.
These were the favorable positions for the approval of the bill in question, with some punctual suggestions of legislative writing.
Before we deal with the only position contrary to the approval of the professor and lawyer Cristiano Maronna, the theme of our next week, it is important to point out an incongruity in the speeches of the eminent jurists heard in that public hearing.
If the crime of electoral cash 2 had no legal provision, there would be reason to maintain that the criminal type of art. 350 of the Electoral Code only deals with the hypothesis of presentation of the accounts?
And more. If the electoral cash crime 2 had no legal provision, there would be reason to support that the kind of art. 32- A should clarify that, in these situations, there is no application of art. 350 of the Electoral Code?
And finally, in order to foment debate and instigate the reader, I question whether a bill to amend the criminal type of art. 350 of the Electoral Code, making it indiscriminate in all situations (with or without accountability), instead of proposing a new autonomous criminal type. cash crime 2 electoral crime cash box 2 electoral cash crime 2 electoral cash crime 2 electoral