Did Lula commit an electoral crime by asking for an early vote for Boulos? Understand

The explicit request for a vote made by the president Luiz Inácio Lula da Silva (PT)last Wednesday (1st), in favor of federal deputy Guilherme Boulos (PSOL-SP), pre-candidate for mayor of São Paulo, during an event organized by trade unions in the capital of São Paulo, generated strong repercussions in the political environment and in social media.

A few hours after the episode, at least 3 pre-candidates for the elections in São Paulo − the current mayor, Ricardo Nunes (MDB), who will seek re-election; federal deputy Kim Kataguiri (União Brasil-SP); and economist Marina Helena (Novo) − went to court alleging advance advertising and demanding action.

In one of the cases, the Partido Novo obtained an injunction to remove videos of Lula’s speech from the YouTube platform. But the party must still file a new lawsuit with the Electoral Court alleging abuse of political power by the president.

Lula’s ally, lawyer Marco Aurélio de Carvalho, coordinator of the legal group Prerrogativas, on the other hand, told the website Power360 that Lula’s speech about Boulos falls within the “exercise of freedom of expression” and should not be classified as early electoral propaganda.

The episode raised a series of questions as to whether Lula had in fact violated the legislation that dictates the rules of the electoral process in the country. For experts in Electoral Law consulted by the InfoMoneythe answer is affirmative.

The Elections Law (Law No. 9,504/1997) considers “early electoral propaganda” to be the explicit request for a vote before the start authorized by the Electoral Court for the campaign period. According to the rule, campaigns officially start on August 16, right after the deadline for registering candidates.

The same provision states that violation of the rule “will subject the person responsible for disseminating the advertisement and, when proven prior knowledge, the beneficiary to a fine in the amount of R$5,000.00 to R$25,000.00, or equivalent to the cost of the propaganda, if this is bigger”.

For Cristiano Vilela, partner at Vilela, Miranda and Aguiar Fernandes Advogados, Lula’s case constitutes a “clear violation of electoral legislation”. “It’s clear advance advertising,” he says. The expert also sees the possibility of abuse of political power, as it is an event held with public structures.

“Yes, there is the possibility of configuring it as an abuse of political power, as it is an event held with the sponsorship of public companies, funded by unions (which receive union dues), as it was broadcast on public TV, etc.”, he maintains .

A similar assessment of the episode is made by lawyer Leandro Petrin, partner at the firm Callado, Petrin, Paes & Cezar Advogados, who sees the possibility of developments in future actions for abusive conduct.

“What we have at this event is, at the very least, an early electoral propaganda made by Lula, because the Electoral Law does not allow, in this period leading up to August 16th, there to be explicit requests for votes. And here Lula was absurdly explicit”, he assesses.

“We therefore have, at the start, a possible fine for Lula for early electoral propaganda. But the conduct also appears abusive, which can spill over into other actions,” he adds.

In the latter case, opposing candidates may file an Electoral Judicial Investigation Action (AIJE) with the Electoral Court − an instrument provided for in legislation (Complementary Law No. 64/1990) that allows the investigation of possible misuse, misuse or abuse of economic power or power of authority, or improper use of social media, for the benefit of a candidate or political party.

In Petrin’s assessment, Boulos could also suffer sanctions for having benefited from the conduct, depending on the extent of the machine’s use at the event. The specialist in electoral law recalls that, in the 2010 presidential elections, Lula used advance propaganda on a recurring basis to benefit Dilma Rousseff (PT).

“So, Lula knows exactly what he was doing. For him, in fact, the repercussion of the act is favorable to Boulos − which also increases his responsibility in a possible AIJE”, she concluded.