Different statements by the minister of the (Federal Supreme Court) in , on Monday (22), violate the rules of the judiciary, according to experts consulted by Sheet.
According to Loman (Organic Law of the Judiciary), judges are prohibited from expressing, through any means of communication, their or other judges’ “opinion on proceedings pending trial”. And also issue “derogatory judgment on orders, votes or sentences, from judicial bodies, with the exception of criticism in the records and in technical works or in the exercise of teaching”.
They also point out that there is, in general, a repeated behavior on the part of members of the Supreme Court to constantly speak out outside the records.
Gilmar even spoke of a “massive error” when responding to a question about the conduct of minister André Mendonça, rapporteur of the . Both are part of the same class at the Supreme Court, where the case is being processed.
Furthermore, when talking about a recent decision by the minister at the (Superior Electoral Court), which, Gilmar said that a case like this would certainly reach the STF and also made the prognosis that, when analyzing appeals regarding the STF, it would overturn Kassio’s understanding: “It is certainly not a jurisprudence that will be maintained”.
At another point, the minister also made a prediction of what the Supreme Court’s position would be regarding a preliminary decision that he himself made last year, changing the rules for the impeachment of Supreme Court ministers, and which has not yet been judged by his peers. “At some point the injunction will be submitted to the plenary and will be calmly approved,” he stated.
The minister also criticized the actions of the , when answering a question about the succession of Rio de Janeiro, which is under discussion in the Supreme Court. “We had two very embarrassing situations at the TSE: the failure to decide the case of the governor of Rio de Janeiro, Cláudio Castro, and the failure to decide the case of Roraima. Processes were already ready, but they were not judged and this led to this impasse that we are experiencing now.”
Carlos Ari Sundfeld, professor at FGV Direito SP and lawyer, classified Gilmar’s statement regarding the TSE as clearly inadequate.
“There is a clear criticism of the TSE’s behavior, and the STF minister is not authorized to do this, except in the case records. This is unquestionable”, says Sundfeld. “This is literally what Loman describes as forbidden to the judge.”
As for the other statements, he considers them to be at the limit of acceptable, despite considering them inappropriate, especially for a Supreme Court minister.
“What is happening at the STF is excessive media exposure regarding legal issues and at times slipping into analyzing processes, decisions of the court itself”, he adds. “Which shows a certain disregard for the restraint behavior that the Organic Law of the Judiciary suggests that the magistrate should have.”
Ana Laura Pereira Barbosa, law professor at ESPM (Escola Superior de Propaganda e Marketing), assesses that the statements violate Lomam. She points out that Gilmar’s statements express an opinion about the pending trial and also derogatory judgment about his peers, which would not be allowed, except in the case records.
“There may be a fine line that separates the clarification of a decision – something that can be carried out by a judge – from the expression of his opinion on an ongoing process”, she says, adding that this does not seem to be the hypothesis in this case. “Especially in the passages that seek to predict what the majority will be in the court on this or that issue.”
According to Ana Laura, it is also important to mention that there is a discussion regarding the possibility of , given that they would not be subject to disciplinary sanctions from the CNJ (National Council of Justice) – as the Supreme Court itself decided in the past.
“It is precisely this type of debate that reinforces the need for the STF to make it clear once and for all what conduct is prohibited,” she says.
For Luisa Moraes Abreu Ferreira, professor at FGV Direito SP, some of the speeches made by Gilmar throughout the program are comments on specific cases, colleagues and cases pending trial, something that, according to Loman, is vetoed.
She considers, however, that this is a conduct reiterated by different judges in higher courts. “Says like these should be considered a violation of Loman, which is expressed in the sense of this prohibition. However, cases like these are repeated, they always have been. And there is a lack of control mechanisms because they are never investigated and sanctioned.”
