The risk of including subsidiary private criminal action of public one within the scope of Brazilian Electoral Justice by PLP 112/2021

Abstract

This article analyzes the risks arising from the inclusion of the subsidiary private criminal action of public one within the scope of Brazilian Electoral Justice, as proposed in the sole paragraph of Article 863 of Complementary Bill No. 112/2021, currently under discussion inthe National Congress. The proposal authorizes any citizen to file a criminal complaint in cases of inertia by the Public Prosecutor’s Office. This, although such provision is compati­ble with the general criminal procedure model, raises serious concerns in the electoral context. Through the examination of current legislation, Supreme Federal Court case law, and special­izes legal doctrine, it is argued that this measure could compromise fundamental principles of the Brazilian Democratic State governed by the Rule of Law, due to the potential for instru­mentalizing Electoral and Economic Criminal Law for political disputes and persecution, as well as creating systemic harm and diluting the concept of victim. In this light, caution and strict criteria are essential for the eventual implementation of the measure, so as prevent its to use as a political weapon (lawfare) and as a threat to democratic order.