The AGU (Advocacy-General of the Union) asked the STF (Supreme Federal Court) to enter the judgment that is being processed in the Court that will decide whether a candidate approved in the Funai (National Indian Foundation) contest can take office, even on parole after being convicted of drug trafficking. The candidate was approved for the role of assistant for indigenism and is seeking the right to participate in the training course in court.
The Funai argues in court that the rules of the tender may not be set aside and that the Constitution is clear when determining the suspension of political rights while supplies last effects of the sentence, which persist even when the convict is on probation. Article 5 of the Legal Regime for Civil Public Servants (law 8.112/1990) determines that in order to be entitled to assume public office, the candidate must have full enjoyment of political rights.
However, the TRF-1 (Federal Regional Court of the 1st Region) granted the candidate’s appeal, understanding that the criminal execution also aims to provide conditions for the social integration of the condemned. As the candidate who passed the contest was on parole, the TRF-1 did not consider it fair to prevent him from accessing the position. For the court, the responsibility for the re-socialization of prisoners also extends to the public administration, which cannot prevent the approved and summoned candidate from taking office.
The AGU then applied to join the action as “amicus curiae”, which means “friend of the court”. The expression in Latin is used to designate an institution to provide subsidies to the decisions of the courts, offering them a better basis for relevant and high-impact issues.
According to the AGU’s petition, the Union’s representativeness stems from the fact that the eventual confirmation by the STF of the TRF-1’s decision that allowed the successful candidate in the contest to assume office even with suspended political rights “will lead to a profound change in the public notices of public tenders and in the federal legislation related to the subject”. Also according to the AGU, there are more than one million and one hundred thousand active servants with the Union, which entails the annual holding of numerous contests, including contests that are in progress, which, according to the petition, would be affected by the decision.
The AGU also argues that Law No. 8,112/90 “seeks to ensure that the exercise of public functions is carried out by unsuspecting citizens, with good backgrounds and unblemished morals. (…) In addition to the ethical sense of the norm, in the specific case, the restriction ensures the continuity of the public service, as the author’s conditional release can be revoked, which will lead to his imprisonment and will stop the provision of the public service for which he was hired”.
For the rapporteur of the extraordinary appeal that is being processed in the STF, Minister Alexandre de Moraes , what should be analyzed is whether, in the name of the constitutional principles of proportionality and dignity of the human person and the resocializing character of the penalty, the person in this case can take possession of public office.
What is at stake is the balance between the legitimate legal and public notice conditions for the exercise of public office and the need to encourage and promote the social reintegration of the criminally convicted person.
The STF’s virtual plenary acknowledged the existence of general repercussions on the issue — when the interest goes beyond the parties involved — on December 17. The case should be considered by the ministers at the beginning of this year.