The minister’s decision that barred the compulsory retirement of judges, in theory, only applies to the specific case of, according to lawyers and professors consulted by the Sheet.
Despite this, his order, issued this Monday (16), could end up paving the way both for other bodies to follow the precedent, ceasing to apply this type of punishment, and for the (National Council of Justice) to change the resolution that provides for administrative penalties applicable to magistrates.
In parallel, members of the (Superior Court of Justice) and the CNJ interviewed by the report believe that the decision lacks clearer contours. The doubts extend, for example, to what will be the outcome of the investigation in which the STJ minister is the target.
president of the CNJ and , has already contacted the national inspector of justice, minister Mauro Campbell, to define the steps taken by the council, according to the decision. Interlocutors Fachin assessed that it is in line with other individual papers that had been given since 2019 and was, therefore, already a topic under debate.
Second, Roberto Dias, lawyer and professor of constitutional law at FGV-SP, the decision was given in a specific case and is valid only for him, adding that, if an ADPF (Argument of Non-Compliance with Fundamental Precept) were proposed on the matter and it was judged valid by the plenary, then the rule would apply to everyone.
Even so, he makes the reservation that this is a precedent, even if monocratic, and therefore can be applied to other cases.
Francisco Zardo, a lawyer specializing in administrative law and master in State law from UFPR (Federal University of Paraná), in turn, says that the correct environment for this discussion would be the STF plenary, arguing that a monocratic decision would only be possible if it was supported by previous collegiate decisions. He assesses that the appropriate body for discussion would be Congress.
A proposal from Dino himself is being processed in the Senate, filed by him before joining the Supreme Court as a senator. This proposal had been in progress over the last week, and had been on the agenda for a meeting of the House’s CCJ (Constitution, Justice and Citizenship Committee) since last Friday (13).
“It is clear that it has a universalizing intention”, says Rubens Glezer, who is a professor at FGV Direito SP, highlighting the fact that the case was referred for evaluation by Fachin as president of the CNJ. “But from a strictly legal point of view, in terms of the effect of the action, it is only for this case. With this type of action, he cannot generate effects for the entire system.”
Glezer also highlights that the decision takes a step towards increasing the court’s power. This is because, according to Dino, when there is a decision from the CNJ determining a serious infraction, the jurisdiction to analyze, through the courts, whether or not the loss of the position is appropriate lies with the STF. “It’s an instrument for concentrating gigantic power in the STF,” he says.
For members of the STJ and CNJ interviewed by the report, there is still a lack of modulation of the effects of the decision, such as a definition of the measure’s time frame. They also point out that the order leaves a void in the list of punishments and could result in judges who need to be punished gaining time and ultimately being able to remain in their positions.
A judge heard under reserve says that anyone who was recently punished with compulsory retirement can request a review of the measure, since the path to the most serious punishment is now longer and requires extra steps. So, these magistrates could end up resuming their position and all their salaries. This minister stated that his colleagues are “astonished” by the determination, especially those who have already joined the CNJ.
Currently, for judges who hold positions for life, the maximum administrative punishment, which is applied by the courts of which they are part or by the CNJ, is compulsory retirement – in which judges continue to be paid, but leave their position.
Dismissal, when he leaves the bench and stops being paid, only applies to cases in which there is a final court ruling, in the event of a criminal conviction.
What Dino has now decided is that, due to a change in the Constitution promoted by the Social Security reform in 2019, the punishment of compulsory retirement became unconstitutional. Therefore, the most serious disciplinary punishment for the specific case would be availability, which is a type of removal for a fixed period. He also said that, if the CNJ understands that it is a case of serious infraction, the AGU (Attorney General of the Union) must take legal action to lose the position.
André Rosilho, professor at FGV Direito SP, assesses that the argument used by the minister seems weak. “The fact that the STF is competent to judge actions against the CNJ does not automatically make it competent to decide on the loss of a judge’s position”, he says.
He also highlights that the decision may raise doubts about its scope not only in ongoing processes, but also in cases of compulsory retirement determined after the Social Security reform.
For him, the Supreme Court could deal with the matter through the discussion of a new Judiciary Statute, whose legislative proposal initiative is reserved for the STF.
