In a clash that took place on the night of Tuesday 16, the ministers concluded that the former head of the Operation had evaded the law; Lawyers can appeal to the Supreme Court
The sentence of the Superior Electoral Tribunal which, this Tuesday 16, culminated in the impeachment of Deputy Deltan Dallagnol, former coordinator of Operation Lava Jato, was the scene of a clash between two sides – on the one hand, Deltan said he could not be caught under the Clean Record Law because there were no disciplinary proceedings pending when he left the prosecutor’s office federal, in November from 2021; the PT, author of the action brought against the candidacy of the former Lava Jato attorney, argued that Deltan left the attorney general’s office to ‘bypass’ the Clean Record Law.
When analyzing the casethe rapporteur, Benedito Gonçalves, understood that the former prosecutor used a “subterfuge” to avoid being caught under the criminal record law, resigning from the federal prosecutor’s office before the administrative proceedings regarding his conduct in the Lava Jato operation began .
The TSE Minister considered that there was a “fraud of the law” in Deltan’s exit from the MPF, with the consequent consequences. This term describes a sort of ‘addiction’ in the former prosecutor’s act – according to Gonçalves, Deltan practiced a conduct which, at first sight, ‘would consist in the regular exercise of rights’, but, in fact, ends up evading the law .
In his vote, Minister Tse even evoked a decision by the Federal Court, referring to a magistrate who attempted to circumvent the hypothesis of ineligibility. In this case, the magistrate could not run for the presidency of the Court if he had held managerial positions for two two years. To avoid such a classification, the magistrate therefore resigned as deputy president of the court five days before completing his four years in office.
What does the Clean Record Law say Deltan was caught under?
The law establishes three different situations in which a member of the Public Prosecutor and the Judiciary is considered ineligible for any office and for eight years:
- when the presumptive candidate retired automatically;
- when the member of the Public Prosecutor or of the Judiciary falls from office due to a judicial conviction;
- when the person has requested voluntary dismissal or retirement pending administrative disciplinary proceedings;
In Deltan’s case, the section of the law that matters is the third, which states that the request for dismissal is sufficient when the member of the prosecutor is targeted by the PAD to be considered ineligible.
It is understood that, in these cases, the aspiring candidate can request exemption to avoid the onset of other sanctions which also imply ineligibility.
What did Deltan plead against its inadmissibility?
Both in the file in which he was convicted and before the trial on Twitter, Deltan Dallagnol presented a certificate issued by the National Council of Public Prosecutors in December 2021, a month after his release from the MPF.
The document specifies that the Board’s regulations do not contain any Administrative Disciplinary Proceedings, started or in progress, on the aforesaid date. Furthermore, he cites two definitive convictions of Deltan in the disciplinary body: one in which the former prosecutor was sanctioned with a warning and another in which the censure was imposed on the former head of Lava Jato.
Many are discussing the judgment of the TSE which can revoke me today without knowing the facts. The PT says I would have disciplinary proceedings pending in the CNMP when I left the MP, which would render me ineligible. IT’S FALSE: the CNMP certificate proves that there have been no disciplinary proceedings since my departure. + pic.twitter.com/Y0gRHnaYYk
— Deltan Dallagnol (@deltanmd) May 16, 2023
What did the Regional Electoral Tribunal of Paraná understand, which had released Deltan’s candidacy?
Initially, the contestation of Deltan’s candidacy was prohibited by the “strict” understanding of the Paraná Regional Electoral Court regarding the clean criminal record law.
The judge understood that, in order to fall within the aforesaid hypothesis of ineligibility, it is necessary that, on the date of termination of office, “the agent of the Public Prosecutor’s Office is responding to disciplinary administrative proceedings stricto sensu, understood as those which may involve in the application of a sanction legally provided for by the administrative procedure, with the guarantee of due process”.
At the center of the thesis is the type of procedure to which the member of the deputy is subjected. The National Council of the Public Prosecutor’s Office, disciplinary body of the class, judges a series of instances and proceedings concerning the conduct of the members of the MP and, on the basis of these proceedings, decides whether or not to formally open a disciplinary investigation procedure, a PAD.
When Deltan left the federal prosecutor’s office, upon request, he was the subject of 15 procedures in the “Conselhão”. They were of a different nature: nine disciplinary complaints, an inquiry, a request for action, three internal appeals on disciplinary complaints and a review of the monocratic decision to file a disciplinary complaint.
At the time, the Conselhão had not yet analyzed the content of those procedures and therefore had not decided whether to formally open more PADs against Deltan, or not. With his departure from the MPF, all these procedures have been shelved, terminated or paralysed.
In this line, the TRE-PR has understood that the hypotheses of ineligibility envisaged by the Law on clean criminal record must be interpreted restrictively, touching only situations ‘expressed’ in the law.
What was the assessment of Benedito Gonçalves, accompanied by the TSE?
The rapporteur believes that there has been a “fraud of the law” in the removal of Deltan from the MPF, with the consequent consequences. According to the minister, several elements ‘clearly’ show that the former prosecutor resigned from the Lava Jato task force ‘with the aim of nullifying the incidence of ineligibility’.
Benedito Gonçalves understood that the facts narrated in the proceedings against Deltan – which at the time of his exit from the MPF had not yet been formally converted into administrative disciplinary proceedings – ‘could perfectly lead to his ineligibility’.
The minister stressed that the next step in the ongoing proceedings against Deltan was the establishment of the PAD. He also recalls that the former prosecutor had already been sanctioned with a warning and censure and therefore the next sanction eventually imposed on Deltan would be dismissal.
“The defendant (Deltan) was fully aware that the initiation of a new administrative disciplinary procedure against him, culminating in a further and possible dismissal, was not just a remote hypothesis, but a concrete possibility”, he pointed out.
Refuting the conclusion of the TRE-PR, Benedito Gonçalves stressed that the inadmissibility applies to Deltan’s case «not based on a hypothesis not provided for by the law on inadmissibility, which is not admitted in the interpretation of restrictive rules of rights» .
“The obstacle arises because the defendant, in fraud of the law, has used subterfuge to circumvent the rule referred to in paragraph q, going so far as to resign from his position as public prosecutor before the start of an administrative procedure concerning the facts of the Operation Lava Jato,” he pointed out. .
Source: Terra
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