Supreme Court sentences congressman to jail

For the first time since the 1988 Constitution went into effect, the Brazilian Supreme Court has sentenced a member of Congress to prison and there is a chance he will spend time behind bars. José Fuscaldi Cesílio, aka Tatico (PTB-GO), a federal deputy, was found guilty of misappropriation and fraudulent withholding of social security funds.

Between 1995 and 2002 he ran a business that collected social security contributions from employees but did not pass the money on to the Social Security Institute (“INSS”).

He is to serve a seven-year sentence that allows him to leave the prison during the day, but requires him to spend the night in jail (“regime semiaberta”). He also has to pay a fine.

An interesting detail in this case is that the sentence was handed down on the day before Tatico turned 70. Brazilian legislation halves a sentence when the defendant is over 70. Tatico’s lawyers can appeal, right back to the Supreme Court. But, as the sentence was a unanimous decision, the appeal has little chance of success – other than as a delaying tactic.
Another interesting detail is that Tatico is busy running for reelection to the Chamber of Deputies. Pursuant to Brazilian legislation, he requested the registration of his candidacy. That request has not been granted as it is presently under examination by the Federal Electoral Court (“Tribunal Superior Eleitoral – TSE”) due to other legal problems. Yesterday’s criminal conviction and sentence theoretically have no bearing on the question of his candidacy registration, according to recent rulings by the Electoral Courts. The Constitution says that a convicted person is ineligible to run for office. But, according to Supreme Court associate justice Carlos Ayres Britto (who is also on the Federal Election Court), ineligibility (“cassação de direitos politicos”) does not automatically mean forfeiture of office. In the case of Tatico, according to justice Britto, the Supreme Court conviction and sentence, along with any TSE ruling, have to be sent to the Chamber of Deputies where a decision on whether or not to expel him will be made. In short, although there is a chance, it is not absolutely certain that Mr Tatico will really spend time behind bars.
Actually, before the conviction of Tatico, the Supreme Court did sentence two other federal deputies to prison this year: Cassio Taniguchi (DEM-PR) and Jose Gerardo (PMDB-CE). However, Taniguchi did not go to jail because of the statute of limitations and Gerardo wound up with an alternative community service sentence.