Throughout its history, the (Supreme Federal Court) has only recognized the impediment or suspicion of ministers in cases of self-declaration, that is, when the magistrate himself decides that he cannot act in a process due to some conflict of interest, which is not always detailed.
External questions asking for impeachment or suspicion of a judge were all rejected, most by individual decision of the court president. Of the 473 requests that reached the Supreme Court in the last ten years, 349 were denied without any collegiate analysis, equivalent to almost 74%. The information comes from Corte Aberta, the court’s transparency and statistics portal.
The topic has come back to the fore in recent weeks with the strain suffered by the minister in reporting on investigations into fraud. The Attorney General of the Republic, , filed one of the cases, but another request is still open.
Toffoli is under pressure due to his stance in overseeing the inquiry. Criticism ranges from the severe secrecy regime imposed on the case, followed by the jet trip with one of the lawyers in the case and businesses that associate their family members with an investment fund linked to Master, as revealed by the Sheet. To Toffoli interlocutors for not seeing elements that compromise their impartiality.
The case is not unprecedented. Different ministers have already had their impartiality questioned in public debate, as is happening now, or in investigation processes that end up being archived or denied.
Toffoli himself has other episodes in his history in which he acted in processes under criticism for not having adequate distance. One of them was when he participated, in 2021, in the , which accused the minister, among other authorities. Toffoli’s office stated at the time that there was no impediment to his participation.
Toffoli also had his participation in the Mensalão trial in 2012 widely contested. The minister was a PT lawyer and served as undersecretary of Legal Affairs of the Civil House in the Lula government. He participated in the trial of 38 defendants, including José Dirceu, who was minister of the Civil House when the minister served there. Despite widespread pressure pointing out a possible conflict of interest for the magistrate, he did not declare himself impeded.
In recent years, there have been several requests seeking the minister’s removal both in the cases of January 8 and the coup plot — at least one of these questions came from former president Jair Bolsonaro’s own defense. The participation of ministers and Flávio Dino in the case was also questioned. The then president of the court at the time, , monocratically denied the requests, e.
Law professor at ESPM (Escola Superior de Propaganda e Marketing) Ana Laura Pereira Barbosa, who integrated and analyzed case by case the arguments filed with the court until 2017, says that the scenario identified there remained in general.
She states that the plenary has, at most, considered some internal appeal against the decision of the president of the court denying the existence of impediment. She adds, however, that it is rare for there to be any reversal or even in-depth discussion of the merits in this type of appeal.
“It is important for the construction of a solid public image of the court, that it, in fact, provides answers to these doubts about impediments, about suspicion of ministers”, she states.
The Code of Criminal Procedure provides that the judge is barred from actions in which his or her spouse or relative has participated; in which the person has worked in the past (as a lawyer or lower court magistrate, for example); or in which he or his family members are directly interested.
Suspicion, on the other hand, has a subjective character and concerns situations in which the minister is a capital enemy or close friend of the parties or lawyers, receives gifts from people interested in the case or advises the parties. If there is an intimate reason, he is not obliged to go into details.
In addition to being directly involved in the process, they only have the legitimacy to present this type of process questioning the suspicion or impediment of ministers, and therefore it can act as a barrier for the case to reach the Supreme Court. If no one questions it, it is up to the minister himself to remove himself from the case.
A Sheet The STF questioned the number of times each minister voluntarily declared himself impeded or suspected, per year. The court responded that it does not have this data.
“It’s not that there is no impediment or suspension, but it seems that everything happens outside the public eye, outside the institutional space”, says FGV Direito SP professor Rubens Glezer, who was also part of the group responsible for the study on the impeachment allegations.
Furthermore, he criticizes a rule in the Code of Civil Procedure, which provided for the impediment of judges from judging cases in which the parties are clients of firms in which spouses or relatives work, as long as these people are represented by another law firm in the action. Moraes’ wife, for example, had a million-dollar contract with Banco Master revealed by the newspaper O Globo in December.
Since 2009, all ministers in the current composition of the court have voluntarily declared themselves suspects or impeached on at least one occasion, according to a survey carried out by the Sheet.
QUESTIONS TO STF MINISTERS
- Toffoli Days
In 2012, there was strong public and judicial pressure for Minister Dias Toffoli to declare himself a suspect in the trial of the 38 mensalão defendants. Toffoli was questioned because he was a former PT lawyer and legal advisor to the Civil House at the time Dirceu held the position. The case did not progress.
The minister also participated in the trial in which the STF decided to annul the plea bargain of former governor of Rio Sérgio Cabral, despite him having been named in it. At the time, Toffoli stated that he was not aware of the facts mentioned and that he never received the supposed amounts.
- Alexandre de Moraes, Flávio Dino and Cristiano Zanin
In March 2025, the STF plenary rejected the requests to remove the three ministers from the trial of the alleged 2022 coup plot. The requests were made by the defenses, who claimed that Dino and Zanin should be removed because they had already filed legal actions against Jair Bolsonaro before joining the STF. In the case of Moraes, the argument was that he would be one of the possible victims of the coup plots, which would compromise his impartiality. The STF denied all requests. André Mendonça was the only minister to disagree in the cases of Moraes and Dino. As for Zanin, the decision was unanimous.
In 2017, the role of minister Gilmar Mendes in the habeas corpus of businessman Eike Batista, the outcome of Operation Lava Jato, was questioned. The then attorney general asked Gilmar to declare himself prevented from doing so, alleging a possible conflict of interest, as his wife is a partner in the firm that represents Eike in civil proceedings, which could compromise his impartiality. Despite the request, Gilmar did not declare himself impeded and maintained his report on the case. In 2017, in another emblematic case, Gilmar was questioned in a lawsuit against businessman Jacob Barata Filho. Rodrigo Janot even filed an impeachment action, arguing the proximity between the magistrate and the businessman’s family. And even though the law firm where Gilmar’s wife worked defended the interests of those being investigated in an operation. The minister denied that there was any reason why he was prevented from doing so.
