Brazil has rules for suspicion and impeachment of ministers, but one of them is the (Supreme Federal Court), others leave room for interpretation and, in general, there is no one to control them.
Questions about the conduct of ministers gained strength after leading the investigation and revelations of links between ministers and family members of magistrates with the web of the financial institution.
There is a consensus among experts consulted by the Sheet that there is a crisis of credibility and effectiveness in the application of the rules that deal with the matter. There is also agreement regarding , although there is disagreement about its scope.
The rules of impediment and suspicion are provided for in the Civil and Criminal Procedure Codes and apply to both STF ministers and magistrates in general. These are standards established to protect the image and guarantee the impartiality of the trial.
As a rule, a judge declares himself impeded by objective criteria: he already has a lawyer for one of the parties or has ruled on the case in another instance. When there are more subjective reasons, such as being a capital enemy or a close friend of one of the defendants, he is said to be a suspect.
What does it mean to be a close friend? In 2017, the then Attorney General of the Republic, Rodrigo Janot, asked for the removal of Jacob Barata Filho from a case. Best man at the businessman’s daughter’s wedding, Gilmar refused. And he ordered Jacob Barata to be released.
As shown by Sheeteven under public questioning, historically the decision to withdraw from the case rests with the magistrate. The Supreme Court only recognized ministers by self-declaration. This never came from the court plenary.
| What can remove a judge from a case in Brazil? | |
|---|---|
|
Offside – More objective criteria |
Suspicion
– More subjective criteria |
|
Private interest If judge, spouse or relative (up to 3rd degree) is party to or directly interested in the case (or suspicion in the CPC) |
Personal relationship
If the magistrate is a close friend or enemy of either party |
| Previous performance
If the judge has already participated in the process, including as a judge in another instance |
Analogous fact
If he, spouse, ascendant or descendant, is responding to a similar process |
| Family ties
If the judge’s spouse or relative (up to 3rd degree) acted directly in the case |
External litigation
If he, spouse or relative (up to 3rd degree) has a case to be judged by either party |
|
Equity relationship If the judge is the heir, donee or employer of one of the parties |
Economic link
If the judge, your spouse or relative (up to the 3rd degree) is a creditor or debtor of any of the parties or has already advised them |
|
Academic link If one of the parties is an educational institution with which the judge has a working relationship |
Participation in society
If the judge is a partner, shareholder or administrator of a company interested in the process (or is prevented from doing so by the CPC) |
|
Court dispute If the judge sues the party or his lawyer |
Give and receive If the judge receives gifts from those interested in the case, before or after, or has provided resources to meet the expenses of the case |
| Source: Code of Civil Procedure and Code of Criminal Procedure | |
“This situation reveals that the problem is not a lack of standards, but a lack of institutional commitment to standards of conduct that preserve, in a visible and objective way, the impartiality of the court”, says Miguel Godoy, lawyer and professor of constitutional law at UnB and UFPR.
According to him, the rules exist, but they have been interpreted in an increasingly flexible way. Thus, when controversies arise, the court no longer has the capital to remove distrust. “Cases like Banco Master do not create a credibility crisis, they only expose it.”
In 2023, the Supreme Court ruled one of the rules unconstitutional. The text prohibited the participation of a judge in cases where the party was or was up to the third degree related to the judge, even if represented by a lawyer from another panel.
If the rule were in force, it is possible that the minister would have to declare himself unable to judge the Master case. This is because his was hired by the company, even if it was not to act specifically in this case.
For , columnist for Sheet and professor at FGV Direito SP, the decision leaves a gap in the impediment rules. A barrier to conflict of interest relating to family law firms and influence peddling in the courts was eliminated.
Family stalls are not illegal, he says, but the declaration of unconstitutionality gave an incentive to their expansion. “This made it easier for family law to take place without due controls to prevent conflicts of interest in the country.”
Oscar Vilhena signed one that suggested principles for the elaboration of a code of conduct for the STF, as well as that made by -SP (Brazilian Bar Association of São Paulo).
Defended by the president of the court, Edson Fachin, a code of conduct would fill gaps in order to regulate the behavior of ministers inside and outside the processes. “It will define whether the conduct was ethically inappropriate or not”, says the FGV professor.
Insper law professor Luiz Fernando Esteves considers that the adoption of a code of conduct by the court can specify points of the rules of impediment and suspicion, as well as provide subsidies for the scrutiny of the press, academia and society.
“The code of conduct could make the parameters clearer so that it is possible to identify what is a friend, what is not a friend of a judge, and in what situation the minister would be interested in the case. In this sense, it would be welcome”, he states.
The code of conduct proposed by the OAB-SP, for example, reinstates the prohibition on participating in trials of client parties from relatives’ offices and establishes guidelines for publicity and transparency of events, travel and personal relationships of ministers.
The rules for STF ministers are those adopted by the German and American constitutional courts, which limit the acceptance of benefits and participation in events that may cast doubt on the impartiality of judges.
André Rufino, professor of constitutional law at IDP (an educational institution founded by minister Gilmar Mendes), states on the other hand that today the behavior of ministers is more linked to the informal institutions of the court (such as interaction between themselves or relations with the press) than to the formal rules established by law.
Therefore, Rufino advocates further studies to draft a specific code of conduct for the STF, which takes specificities into account. “The institutional culture rooted in the STF will not instantly transform with the publication of a code of formal norms.”
According to the professor, “changes and evolutions in institutional practices, developed and cultivated over decades, require time and depend, in addition to formal norms, on the participation and engagement of those involved.”
The president of the IASP (São Paulo Lawyers Institute), Diogo Melo, also has his reservations. He says that a code of conduct for STF ministers is a first step, but it does not solve the entire problem of the Supreme Court’s dysfunctionality.
“The need is not just to reform A or B. We cannot convey the feeling that a code of conduct will solve all problems”, he stated in (27). “We have to go further, think structurally.”
