• Ferraresi Cavalcante – Advogados

The conduct of "Caixa 2 Eleitoral" is predicted as a crime by the Law. (Electoral code)

Atualizado: 17 de mai. de 2019

For years, electoral campaigns have been largely financed by donations or economic equivalent actions by companies, however, based on the Law No. 13.165/2015, which promoted an electoral mini-reform, several changes occurred in the Laws no. 9.504/1997 (Law of Elections), Law No. 9,096/1995 (Law of Political Parties) and Law Nº. 4,737/1965 (Electoral Code), among which the impossibility of companies finance candidates.

The origin of the discussion of the typification of the "Caixa 2 Eleitoral" occurred in the "Mensalão" criminal scandal. At that time, the Supremo Tribunal Federal (STF), equivalent to the US Supreme Court, concludes that the absence of accounting bookkeeping for electoral donation is a crime, since "the candidates are required by law to declare to the Electoral Court all sums received to fund the campaign," it was understood that "the article 350 of the Electoral Code, only worked with the hypothesis of private nature financial resources, or convertible into pecuniary transferred informally for political-elective candidates." Outlining, therefore, the origin of resources for purposes of typifying the conduct as "Caixa 2 Eleitoral".

In the opportunity, the STF understood that the mere electoral donation "on the

accounted for" constitutes, by itself, the crime of "Caixa 2 Eleitoral", which differs from the conduct of purchase votes, being configured as the practice of corruption, conforming to the criminal type of art. 299 of the Electoral Code. Thus, one wonders: "Is Caixa 2 a crime"? Yes, based on doctrine and in the various judgments made by the STF. According to the court, the behaviors characterizing the "Caixa 2 Eleitoral" and "electoral corruption”, are not the same, and it pointed out the differences between one and the other. In the general elections of 2018, it was the first time that the election took place without allowing the candidates to finance their campaign with private/company funding (other than the self-funding). Soon, reality changed, "Caixa 2 Eleitoral", before tolerated, and practiced illegally and clandestinely, has now gained contours of serious crime with crystal clarity. That's because campaign funding with private money was strictly prohibited in the mini-reform, public financing and self-

financing with limits.

Citizens should be aware of the differences between the criminal acts, observing which

behavior conforms to the crime of "Caixa 2 Eleitoral" and that of ";electoral

corruption". The conduct of rendering inaccurate/false accounts because there was an

omission of income and/or expenses, non-existent donation declaration and inexact

donation on the origin of cash receipt, trafficked through a bank account or parallel

accounting, configures the crime of "Caixa 2 Eleitoral".

In contrast, the crime of electoral corruption provided by the art. 299 of the Code

Election, shapes the verbs of giving, offers to solicit, promise or receive money, gift or

any other advantage, thus seeking to obtain the vote or achieve or promise to abstain.

The society must be attentive, because in either of the two crime: "Caixa 2 Eleitoral"

and "electoral corruption", its occurrence provokes electoral imbalance leading to the

annulment of the election, cancellation of the electoral ballot.

Voting is not a commodity exposed for sale or exchange, but an achievement that

must be accomplished after a fair and loyal dispute, with ideas and reinforced by the

previous history of each candidate. Finally, the vote must represent the triumph of

democracy and the search for the general well-being of the population.

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