Case Summary and Outcome

The Brazilian Superior Electoral Court (TSE) declared former Brazilian President Jair Bolsonaro and then Vice-Presidential candidate Walter Souza Braga Netto ineligible to run for office for eight years due to abuse of political and economic power. The Brazilian government had held civic-military parades to commemorate the Bicentennial of Independence and Bolsonaro – with Braga Netto’s approval, who accompanied him – used his position as President of the Republic to call on supporters to attend both the official event and subsequent rallies, which were fully broadcast by the public TV station. The TSE found that Bolsonaro and Braga Netto illicitly blurred the lines between the official event and the electoral campaign, violating the principles of electoral equality and fairness and had used public resources for political campaigning. The Court recognized that the internet intensified these illicit actions by amplifying the overlap between public events and campaign efforts.

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Facts

On September 7, 2022, during a presidential election year, the Brazilian federal government held a civic-military parade at the Ministries Esplanade (“Esplanada dos Ministérios“) in Brasília, the capital, to commemorate the Bicentennial of Brazil’s Independence. On the same day, a similar military event took place in Rio de Janeiro to mark the occasion.

On that day, just before the event in Brasília began, then-President and re-election candidate Jair Bolsonaro gave an interview to TV Brasil, the public television network owned by the Brazilian Communications Company, a government media conglomerate. He then traveled in an open car to the Bicentennial celebration at the Ministries Esplanade. From the event’s VIP stage, in the presence of officials and guests, Bolsonaro watched the civic-military parade, and then left the stage and went to a sound truck funded by the private group “Movimento Brasil Verde e Amarelo” (“Green and Yellow Brazil Movement”) on one of the Esplanade’s side streets, where he held a campaign rally. Bolsonaro then flew to Rio de Janeiro in an official Brazilian Air Force (FAB) aircraft. Upon arrival, he rode in an open car to the park “Aterro do Flamengo” and participated in a campaign motorcade to Copacabana where he attended the official military event commemorating the Bicentennial. After the ceremony, he walked to another sound truck and conducted another campaign rally. Defense Minister and Vice-Presidential candidate Walter Souza Braga Netto accompanied Bolsonaro throughout the day, attending both the civic-military parades and the campaign rallies.

Arguing that the campaign events were merged with the official acts, resulting in the misuse of public resources, including federal government assets and personnel, for the benefit of candidates Bolsonaro and Braga Netto, the leader of the Democratic Labor Party (PDT) and Senator Soraya Thronicke, from the “Podemos” Party, filed electoral judicial investigations. Thronicke also filed a special representation to investigate prohibited conduct.

Three separate applications were made: two ‘Electoral Judicial Investigation Actions’ (‘Ação de Investigação Judicial Eleitoral‘) – one by Thronicke and one by the PDT; and one ‘Representation for prohibited conduct” (“Representação por conduta vedada“) filed by Thronicke. All three cases were heard together and three similar but slightly distinct judgments were issued.

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Decision Overview

Justice Benedito Gonçalves was the rapporteur of the Superior Electoral Court (TSE) decision, and his opinion was supported by Justices Floriano de Azevedo Marques, André Ramos Tavares, Cármen Lúcia, and Alexandre de Moraes. Justices Raul Araújo and Nunes Marques issued separate dissenting opinions. The central issue before the Court was whether Bolsonaro and Braga Netto had abused political and economic power during the 2022 presidential election, particularly by using the official Bicentennial Independence celebration for their electoral campaign.

Thronicke argued that Bolsonaro and Braga Netto deliberately appropriated the Bicentennial of Independence event to elevate the civic celebration into a milestone of the “battle between good and evil”, a narrative Bolsonaro used to frame his contest against his main electoral opponent. He submitted that Bolsonaro and Braga Netto violated the principles of fairness and integrity that should guide elections, and due to the severity and personal nature of their illegal actions, sought the imposition of fines and a declaration of ineligibility.

Bolsonaro and Braga Netto argued that there was a clear distinction between the official Bicentennial of Independence celebrations and the campaign activities, and that all candidates had equal opportunities to utilize the event, submitting that it was legitimate for Bolsonaro to mobilize his political base.

The Court examined the nature of an abuse of political and economic power. It noted that, based on art. 73, main section, of Law No. 9.504/1997, and citing Justice Gilmar Mendes’s definition in the judgment of RO No. 2650-41, abuse of political power occurs when “the structure of public administration is used to benefit a particular candidacy”. [pp. 46-48] It also referenced the judgment of AgR-AI 685-43/PA, delivered by Justice Edson Fachin, stating that abuse of economic power is characterized by “the excessive use of financial resources, which, due to its magnitude and gravity, can undermine the voter’s will, distorting the fairness of the election and its outcome”. [pp. 46-48] The Court noted that, for abuse to be established, severity is an essential element, involving both a high degree of reprehensibility of the conduct and a significant impact on the specific election. [pp. 42-43] It identified the internet as a crucial factor in assessing the severity of conduct, stating that “[w]e live in a new communicational paradigm: network communication (many-to-many), which introduces new elements into this equation” (emphasis in original). [p. 48] Referring to two electoral reforms on the topic – namely, the reduction of campaign periods and “street” advertising, and the allowance for paid online promotion – the Court added that “[t]he many-to-many communication model has increased the flow of information from multiple sources” and that “[t]his factor, generally beneficial to democratic debate, should also be considered when evaluating electoral misconduct”. [p. 48]

Referring to the changes brought about by the internet, the Court acknowledged that “[t]oday, social networks, blogs, channels, and apps have become the primary means of rapidly disseminating electoral messages and can be used to perpetrate misconduct that produces quick and widespread effects”. [pp. 48-49] It observed that traditional media have adapted to these new dynamics by utilizing the internet to broadcast programs and create content, including pages and channels, and explained that, before the rise of social media, “statements by elected officials and other public agents were confined to the context of their official duties and were only widely disseminated by the press or in formal official statements”, whereas now, “these statements are part of the daily lives of ‘followers’ and even third parties, to whom these messages are replicated”. [pp. 48-49] In this context, the Court found that, while this new mode of communication enhances interaction between political figures and their supporters, it also magnifies the potential harm from illegal practices. The Court also referred to the challenges associated with the formation of “bubbles”, a phenomenon it defined as the creation of “environments for consuming content aligned with the beliefs of a targeted audience”, which leads to the “exploitation of extreme sentiments, generating a sense of belonging without the need for deep reflection, and acts as a powerful catalyst for increasing the popularity and engagement of political leaders.” [p. 49] In this context, the Court stressed that public officials, candidates, and electoral agents must address these issues during the election period and stated that “[t]he starting point for defining strategies should be that the execution and dissemination of official acts and campaign activities in a hyperconnected society require strict adherence to legal prohibitions”, and “[t]he fact that these prohibitions were designed in a largely analog world does not preclude their application in the digital realm”. [p. 49]

The Court then examined the facts of the case, noting that it was necessary to review events leading up to September 7, 2022, the day of the Bicentennial Independence celebration, to fully understand the situation. It recognized that, for months, Bolsonaro and his supporters had used social media to orchestrate a major electoral mobilization for September 7, urging voters to attend the Bicentennial event, effectively merging “electoral slogans, ideological issues, and the civic date of Independence”. [p. 62] It also noted that at the Liberal Party (PL) convention on July 24, 2022, Bolsonaro, the then-President and officially launching his re-election campaign, encouraged participation in the September 7 event as a demonstration of “the power of the majority” and to oppose the judiciary. [p. X] The Court highlighted that during this event, Bolsonaro used the phrase “let’s take to the streets for the last time” to create a sense of urgency, framing it as a fight for freedom and against perceived threats from Supreme Court justices, whom he disparagingly referred to as “a few deaf people in black robes”. [p. 56]

The Court observed that on the day of the Bicentennial event, just minutes before taking the stage, Bolsonaro gave an interview to TV Brasil, the public television network covering the event. It found that, during the interview, Bolsonaro “took advantage of the opportunity to, assuming the role of a re-election candidate, discuss his achievements, praise his government’s initiatives (such as ‘Auxílio Brasil’ [a cash transfer program], reduced gasoline prices, and FIES [a Student Financing Fund] debt forgiveness), highlight concerns about political situations in neighboring countries, criticize the MST [Landless Workers’ Movement], associate his presidency with a resurgence of ‘patriotism’, and make an indirect but clear reference to the upcoming election by stating that ‘what is at stake is our freedom, our future’ and ‘Brazil is ours, we know what we want’”. [p. 58] It also found that “[t]he Bicentennial Independence celebration is overshadowed as Bolsonaro fervently defends his government and, emphasizing one of his main campaign issues, calls on viewers to fight for their freedom, which he claims is ‘at stake’ along with ‘the future’”, and that “[e]ven the call for people to go to the streets ‘in green and yellow’ cannot be separated from the candidate’s efforts in his electoral propaganda to make a similar appeal to the electorate”. [p. 58]

By analyzing the footage from the end of the event, when the public TV broadcast should have ended but when the government-controlled network’s cameras continued to focus on Bolsonaro after he had left the VIP stage and was no longer wearing the presidential sash, the Court observed: “[h]e moves through the crowd towards the platform where he was about to hold his campaign rally. It is possible to hear the candidate being acclaimed by some of those present as ‘myth’ (emphasis in the original)” [p. 59] It added that “one of the presenters appears disconcerted by the unusual close-up of the candidate walking among supporters, unsure how to narrate the footage … [a]nother presenter tries to mitigate the situation by claiming that the President was heading to the Air Base to travel to Rio de Janeiro—which is not consistent with the known facts, as the planned campaign events by [Bolsonaro and Braga Netto] were scheduled to take place”. [p. 59] The Court also observed that the video covering the event, available on the TV Brasil YouTube channel, had nearly 400,000 views as of the date of the decision. [p. 59]

The Court highlighted the presence of Bolsonaro’s business supporters at the official VIP stage, as well as the unprecedented inclusion of a tractor parade at the end of the civic-military procession, featuring flags representing Brazil’s states. It commented that, “[a]t this point, it is impossible to separate the significance of the event, which is clearly associated with the importance of agribusiness – a topic unrelated to Brazil’s Independence but directly linked to the campaign of the defendants”. [p. 59]

Regarding the event in Rio de Janeiro, the Court identified that Bolsonaro used his position as President to move the military parade, traditionally held in the city center, to the Copacabana beachfront (a location that, since the 2018 elections, had become a gathering place for his supporters) which reinforced the occurrence of political and economic abuse. [p. 65]

Accordingly, the Court held that Bolsonaro and Braga Netto made “overt use of television propaganda and electoral conventions to call supporters […] to attend the Bicentennial Independence celebrations on September 7, 2022″, with the aim of “inducing confusion between official events and electoral acts” (emphasis in the original). [p. 70] It found that “[t]his strategy involved exploiting campaign slogans by framing the Bicentennial celebration within the broader narrative of the struggle for freedom, the defeat of evil, and the triumph of militarized patriotism – narratives [Bolsonaro] consistently used to mobilize his base. Language and symbols were strategically employed to create a close association between the civic date and [Bolsonaro and Braga Netto’s] candidacy, while invoking a sense of urgency about ‘going to the streets for the last time’ as a major display of the former President’s power and popularity”. [p. 70]

The Court found that “there was proven improper mixing of official and electoral acts in Brasília/DF, which occurred either by the initiative of the former President of the Republic or by his direction or complicity“, “improper mixing of official and electoral acts in Rio de Janeiro, which occurred either by the initiative of the former President of the Republic or by his direction or complicity“, and “the diversion of public resources, assets, and services in favor of the campaign” (emphasis in the original). [p. 70-71] This included “substantial resources used to fund the civic-military parade in Brasília and the appropriation of symbolic assets of immeasurable value, from the electoral use of images in propaganda to the incalculable representativeness of the civic date intentionally captured as a political mobilization element” (emphasis in the original). [p. 71]

Based on art. 22, XIV, of Complementary Law No. 64/1990, Bolsonaro was held personally responsible because “[h]e was the public agent who wielded political power across all acts, whether through personal actions, direct orders, or by his clear complicity and electoral advantage in scandalous situations, such as the placement of sound trucks just meters from the VIP tribunes”. [pp. 72-73] Regarding Braga Netto, the Court concluded that “his role was not limited to being a beneficiary as a member of the ticket. There was effective involvement, demonstrating not only absolute complicity with the offenses but also a strategic convenience in assuming a relevant role without ever competing for the spotlight with the ticket’s principal” (emphasis in original). [pp. 72-73]

Bolsonaro was fined R$425 640 (approximately US$71 600 in January 2025) and Braga Netto, R$212 820 (approximately US$36 000 in January 2025).

Justice André Ramos Tavares agreed with the rapporteur’s opinion, emphasizing the need to prevent “the harmful confusion between public and private assets” in a republic like Brazil. He also highlighted that, given the peculiarities of the “Digital Age”, “the conduct of the federal Executive must not blur for the electorate the distinction between the figure of authority and that of the candidate, through a kind of digital fusion of typical campaign acts with official acts of the Presidency, which are of national prominence and conducted using public resources”. [p. 91] Addressing the fact that Bolsonaro called on the public to participate in the official event, Justice Tavares found that “[b]y doing so, both in social media posts and in interviews, it is evident that the official Bicentennial Independence event was instrumentalized, serving as a lure for events that were explicitly electoral, with these events being the main ones – namely, the subsequent rallies. As noted in the opinion of the Prosecutor General, the candidate, during an electoral convention of the [Liberal Party], called on citizens ‘to go to the streets for the last time on September 7. Let’s go to the streets for the last time’. The reference to ‘the last time’ was clearly not about the Independence celebrations but rather about the campaign; that is, it was largely a call for his final major electoral rally” (emphasis in the original). [p. 92] He concluded that “what emerges from the case is, in reality, the occurrence of a parasitic exploitation of the public celebration day and, consequently, a significant portion of the state structure dedicated to organizing the festivities to support and boost the scheduled campaign event – not by chance – on the same day.” [p. 93]

Justice Cármen Lúcia also supported these opinions, adding that “as a prominent pre-candidate on the date of the events, the use of public resources for dissemination (public television network) puts him at a clear advantage over other pre-candidates”. [p. 110]

Justice Alexandre de Moraes agreed with the opinions, concluding that “abuse of power and the prohibited conduct are extensively demonstrated”. [p. 123] Citing his opinion in case RO 0603975-98, from October 28, 2021, Justice de Moraes noted that electoral justice requires a transparent campaign committed to information: “[e]lectoral justice, like all justice, may be blind, but it is not foolish. We cannot create the ostrich precedent—where everyone knows what happened, everyone knows the mechanisms used to obtain votes, but everyone hides their head in the sand. We cannot confuse the neutrality of justice, traditionally embodied by the phrase ‘justice is blind,’ with foolishness. Electoral justice, like all justice, is not foolish. It is very important that the ruling sets a precedent to prevent the spread of hatred, disinformation, and conspiracy”. [p. 123] He highlighted that it was in the judgment of this case that electoral justice established “the guidelines to curb and combat disinformation, hate speech, fraudulent news, attacks on democracy, attacks on electoral justice, and lies about electronic voting machines”. [p. 123] Justice de Moraes added that the present case is “nothing more than a faithful reflection of what was anticipated in that judgment, namely, the misuse of public machinery for the benefit of the candidacy, the prestige of private interests at the expense of public good, utility, and will”. [p. 123]

 Justice Araújo would have fully acquitted Bolsonaro and Braga Netto, stating that “although the aforementioned rallies were held immediately after the official Bicentennial Independence events, with all due respect, particularly considering [Bolsonaro’s] history of calling citizens to participate in support acts – such as motorcycle rallies – I do not see how the speeches – delivered from electric trios – can be considered a continuation of the civic-military parades” (emphasis in the original). [p. 79]

Justice Nunes Marques, while acknowledging electoral irregularities, would have imposed a fine of R$20,000 on Bolsonaro for each of the events occurring after the Bicentennial Independence celebrations, amounting to R$40,000 (approximately USD 8,000). He would have dismissed the ineligibility penalty and acquitted Braga Netto of all charges. [p. 117]

Bolsonaro filed an extraordinary appeal, which has been forwarded for judgment by the Supreme Federal Court.

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