After the revelations in December that the minister of the (Supreme Federal Court) and the minister’s wife increased pressure for the president of the court, , to adopt for the magistrates.
The most cited models for a code of this type are the and the , a country where rules of conduct have been in force since 2018.
The person primarily responsible for implementing the code of conduct was the president of the court at the time, Andreas Vosskuhle, who led the highest body of the German judiciary from 2010 to 2020.
In the European country, the Constitutional Court has 16 judges divided into two groups, each with different duties: the first deals with cases and the second deals with organizational issues and disputes between State bodies. Judges are chosen by political parties and remain in office for up to 12 years,
In an interview with Sheet over the phone, Vosskuhle tells how the process for adopting the code of conduct unfolded, comments on the American case, and explains how the Brazilian court could use the German example to elaborate
You were president of the German Constitutional Court in 2018, when the code of conduct for the court’s judges was published. How did you and your colleagues come to the conclusion that code like this was necessary?
At the time, there was widespread discussion about [com palestras, por exemplo] which could also reach the Constitutional Court. Furthermore, many judges were uncomfortable about cases tried in court.
Therefore, we created a commission with the aim of preparing the discussion on a code of conduct. This commission worked to adapt suggestions discussed with all the court’s judges, and the code was approved by consensus after a long process and many modifications.
How did you and your colleagues write the code of conduct? What was most important?
The most important thing was to protect trust in the institution, which is based on good legal decisions, but also on the integrity and independence of judges. In this sense, we ask ourselves: who are we? How do we want to behave? That was the starting point.
Do you believe it is problematic that a higher court does not have such a code nowadays? How do you see this development in highest courts around the world?
This depends on the legal culture of each country. The German Constitutional Court, for example, has always been a court that has tried to continue developing. When we understood that our decisions needed to be better communicated to the public, in the 1990s we created a press office. Later, we began to allow the session where the decisions are read to be televised [mas não os julgamentos em si]which was previously prohibited in Germany.
It is necessary to understand the code of conduct as part of this chain of improvements. Still, judges are, by tradition, very conservative and resistant to change. At the time, my vice-president, Ferdinand Kirchhof, and I needed to do a lot of convincing work to get the discussion on the code underway.
The Federal Supreme Court of Brazil is also televised, a practice criticized by some jurists, as it sometimes How do you see the issue?
In my opinion, courts need spaces for deliberation away from the public, where one can, yes. I believe this is extremely important. Therefore, in Germany, although we always value transparency, we also give great importance to the secrecy of deliberations in classes. At the time of discussions, not even the judges’ assistants can be present.
In Germany we have a saying: it’s better not to know how sausages are made. This also applies to legal decisions. They need to be explained and exposed, but the path to their conclusion is often exhausting and rocky. The fact that the population can see it does not increase trust in the institution.
Furthermore, strict secrecy also has a very positive effect as they carry out discussions without the support of their assistants. At that moment, they depend only on themselves. People without great legal knowledge would quickly be overwhelmed in such a process. Therefore, the German Constitutional Court did not become a job hanger for former politicians, since it is not at all interesting to be made a fool of in such a context.
In the German code of conduct, there is mention of gifts that judges can receive, but no maximum value is stipulated. Why?
This would lead to a number of practical problems. First, it would be necessary to always update the rules, due to inflation. Second, it is often impossible to know the value of a gift. Therefore, we decided that most importantly An invitation to dinner in a conventional restaurant is perfectly justifiable. A visit to an establishment with three Michelin stars, no.
The code also stipulates the publication of judges’ extra income.
Yes, and this has proven very useful and led to changes in the conduct of judges, as no one wants to be seen receiving large amounts of money. And if someone is caught in a lie, it is naturally a big problem and a big breach of trust.
But I understand that there is no penalty when a judge does not obey the rules of the code of conduct.
No, there are no punishments — they could not be applied, since the president of the Constitutional Court The penalty is the social sanction. It will always be possible for public opinion to know that a judge does not comply with the restrictions to which he himself agreed. This puts you under pressure to explain yourself and can lead to a serious loss of reputation. All judges know this. The code of conduct is based on the idea of voluntary commitment that becomes part of the court’s culture.
Perhaps you can imagine that social sanctions are of little importance.
In my experience, social sanction hurts and greatly affects court judges. When his colleagues say that there is inappropriate behavior, suddenly the judge finds himself in a difficult situation and loses his status in the collegiate. In addition, there is also social control through the press and public opinion.
In the end, what matters is the fact that State institutions need to be transparent if they want to receive the trust of citizens. They cannot assume that trust is a fait accompli. There is no longer authority through hierarchy, that idea that high institutions cannot make mistakes — that the doctor does not need to explain to me what I have, because he is the authority and knows what is best for me. That time is over.
How do you assess the effect that the code of conduct has had on the German Constitutional Court? What changed at court?
The code did us a lot of good and encouraged a process of esprit de corps. When I was president, I always thought that one of the most important tasks was to encourage contact between the judges of the two groups so that. This is also why we started doing something that, until now, was very unusual in Germany: calling ourselves “you” [em vez da linguagem honorífica “senhor” e “senhora” na língua alemã].
We also started carrying out activities together. For example, one time we all went skiing; in another, we took a cooking course, as well as many other things that helped us build confidence and function as a team, like a good football team.
In Brazil, it is often said that .
This is also true in Germany. But precisely for this reason it is important, even more so in a higher court, that in difficult and high-profile cases I do not just express my opinion, but that everyone works together.
In a well-functioning team, it is much easier to listen, admit mistakes, weaknesses and make new considerations. All of this builds trust. Judges are usually bad at working in groups, but team spirit is very important in a collegiate. The stronger he is, the better and clearer the decisions will be.
Alongside the German code of conduct, the United States Supreme Court code is also discussed as a model for the STF. In that case, the American court adopted the rules under pressure. How do you analyze this decision and the circumstances that defined it?
In Germany, we adopted the code as a voluntary decision. This helped us a lot. I believe that when you do something like this under pressure, there is often an attempt to meet expectations that perhaps cannot be met.
However, I believe that a court can use the work of drafting a code of conduct as a chance to discuss itself, learn collectively, and answer questions. The process itself already has a positive effect, regardless of what comes out of it.
Without that, what you said before applies: every judge is an island, and we see this especially markedly in the US Supreme Court. There, there is no joint deliberation: everyone gives their opinion, and then someone needs to bring together all the statements. There is no real discussion. I don’t think this model is very convincing, and for me in recent years it has something to do with it. It became an institution in which two political camps clashed.
Did you follow the work of the STF in the trial of the coup plot in which the former president was involved?
Yes, but not as actively as he would if he were still president. The STF is a very important, recognized and innovative court, and that is why the judges of the German Constitutional Court always follow what happens in Brazil. Today I know what’s going on out there, but I don’t follow events in such depth.
But if you had to analyze how the ministers behaved in the case against Bolsonaro, what would you say?
I don’t want to give an opinion.
The STF is now going through a small scandal after a minister traveled to Peru for a football game. Do you believe that this trip would cause problems under the German code of conduct?
I can only comment on the situation in Germany. Here, this would probably be a violation. But there is no doubt, for example, that an active judge could not give secret tips to law firms on how to be successful in constitutional law cases.
Another minister’s wife is also involved in the case How would the German court deal with situations involving spouses of judges defending people or companies before the court?
I can’t say. We never had problems with spouses, except when, in the 1960s, an active Constitutional Court judge, Hans Rupp and Wiltraut von Brünneck, fell in love and got married. That was a little unusual.
How can the German code of conduct be used as an example for Brazil?
It could be one example among many. I think it’s important to observe how other courts deal with the matter, but that doesn’t mean that what works in one country automatically applies to another. Each place has its own constitutional culture, and you have to find your own way.
What I can say is that, for me, it is very important that there is a joint process in which all judges are involved. One can imagine a situation in which, for example, the president simply makes a suggestion and then implements it. It’s not a good idea. In all countries where judges see themselves as neutral and independent individuals, there is hesitation in accepting codes of conduct. Everyone reacts nervously, and this is not particular to any country, but common anywhere in the world
That’s why the topic is not simple and I understand it perfectly. Here too, the implementation of a code of conduct was controversial, and it was necessary to reach a consensus — a laborious process, but one that had a good result.
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Andreas Vosskuhle, 59, is a lawyer and professor of law at the University of Freiburg. Born in West Germany in 1963, he had an academic career at the universities of Bayreuth, Munich and Augsburg before starting to teach in Freiburg in 1999. He arrived at the Constitutional Court in 2008 after being nominated by the center-left party SPD (Social Democratic Party of Germany). He was elected president of the court in 2010, at the age of 46, becoming the youngest person to lead the highest body of the German Judiciary, a role he held until 2020.
