Questions about the actions of the minister, of the (Supreme Federal Court), gained new momentum after the magistrate’s name was found in the cell phone records of the owner of the,. Investigations against members of the court, however, were never carried out and have a nebulous path.
This week, the president of the court, , informed of the mentions found. The head of the Judiciary understood the report as an argument of suspicion, that is, an allegation that the minister is not impartial in judging the case, and forwarded it to the PGR (Attorney General’s Office) for comment.
Fachin followed a different path to that taken by his predecessors by opting to refer him to the PGR, Paulo Gonet, and to convene ministers to deal with the matter together.
On Thursday night (12), Toffoli decided to leave the report on the Banco Master case after a meeting of the ten ministers.
Requests for suspicion or impeachment in the Supreme Court are the responsibility of the president of the court. The presidency forwards the question to the minister and he responds to the arguments presented. The president then decides based on the minister’s response.
Until now, the court has never opened any case of this type. In recent years, there have been requests against several ministers, especially Gilmar Mendes and Alexandre de Moraes. In the presidency, for example, the case against the current dean was not pursued.
As the PF does not have the legitimacy to point out suspicion of a Supreme Court minister, the general director, Andrei Rodrigues, requested an audience with Fachin and presented the letter with the information found on Vorcaro’s cell phone.
STF ministers can become the target of investigation in two ways, depending on the type of suspicion surrounding them. If there is an accusation of a criminal offense, the Senate will be responsible, but in the case of a common crime, the court itself will conduct the procedure.
The situation, however, is nebulous. Members of the court were never the target of investigation while occupying a chair. There is no clarity in the legislation, but the investigation and possible complaint should be the responsibility of the PGR, responsible for requesting measures and collecting evidence in the investigation phase.
Magistrates have a special jurisdiction. The procedure is the same as that defined for other heads and members of the Powers of the Republic, such as president, vice-president, federal deputies and senators and the attorney general of the Republic, in accordance with the Constitution.
The court’s internal regulations define the plenary’s competence to prosecute and judge ministers from the court itself, but there is no legislation on the rite.
In relation to a crime of responsibility, the rite is defined by the Law (), last interpreted by the STF in 2015, when it was questioned in the context of the deposition of the former president.
At the end of last year, Congress and the Supreme Court debated the issue again amid a crisis between the Powers.
On December 3, Gilmar determined that only the PGR can present a request for impeachment against a minister and increased the number of senators needed to open such a process.
The president of , (-AP), demonstrated outrage with the decision, and the House rekindled the discussion of a , in addition to considering other measures such as a five-yearly reevaluation of ministers and an increase in the number of magistrates.
On December 10, the dean of the STF suspended part of the counter members of the court. The movement was part of a negotiation to approve new rules for the dismissal of magistrates and other authorities.
Under the agreement, Gilmar would suspend the part of the decision that limited the PGR’s ability to present STF requests to the Senate. He also removed from the agenda the virtual trial that could endorse the injunction and asked for the case to be judged in a physical plenary session.
Gilmar said in his decision that he considered the advancement of discussions in the Senate on an update to the legislation that governs the impeachment process of authorities.
The current text defines as crimes of responsibility for members of the STF to change a decision or vote already given in a session (except by appeal), participate in a trial even though they are a suspect in the case, carry out party political activity, be negligent (negligent or careless) at work and act in a way that is incompatible with the dignity, honor and decorum of the position.
Originally, the law allows every citizen to submit a request for impeachment of a minister to the Senate. It also established that the House could receive the complaint by a simple majority and that, from that moment on, the minister would be removed from office and would lose a third of his salary until the final result of the process.
According to the law, the complaint is received by the Senate Bureau and sent to a special commission, which issues an opinion to say whether it should be judged or not. If they decide that it should not be subject to deliberation, the case is closed. Otherwise, the panel sends a copy to the accused, and opens space for accusation, defense and discussion.
The final judgment is made by nominal vote, in which two-thirds of the senators present must vote for impeachment. If convicted, the judge leaves office permanently.
