The minister of the (Supreme Federal Court) decided this Monday (16) that, with paid leave, should not be applied as a punishment to judges and that serious infractions should be sanctioned with the loss of office.
Dino stated that, since the approval of the law in 2019, there is no longer a constitutional basis for punishing judges with retirement. The measure means that they continue to receive monthly remuneration proportional to their length of service, in cases of serious disciplinary infractions.
“Punitive compulsory retirement no longer exists in the constitutional system, in light of the changes promoted by constitutional amendment nº 103/2019”, he wrote in his decision.
In Dino’s opinion, if the (National Council of Justice) understands that judges deserve maximum punishment, it should send the case to the AGU (Attorney General of the Union) so that the body can present an action for loss of position before the STF.
Dino also officiated the minister, who presides over the Supreme Court and also the CNJ, “to — if deemed appropriate — review the system of disciplinary responsibility within the scope of the Judiciary” and replace compulsory retirement “with effective instruments for the loss of the position of magistrates who commit serious crimes and infractions”.
The president of the court and the CNJ has already contacted the national inspector of justice, minister Mauro Campbell, to define the steps taken by the council to comply with the decision. The National Justice Inspectorate is the body responsible for guiding, coordinating and executing the correctional activities of the courts.
Interlocutors Fachin assessed that the decision is in line with other decisions that had been made since 2019 and was, therefore, already a topic under debate.
The action’s rapporteur gave the decision individually in an action that analyzes the removal of a judge from the District of Mangaratiba (RJ), who sued the Supreme Court to annul the CNJ’s decision that resulted in his compulsory retirement.
The decision can still be appealed and taken to a collegial committee. CNJ advisors state, with reservation, that they are still waiting to find out whether the decision will be applied only to the specific case, whether there will be a different understanding from the STF plenary or whether there will already be broad application.
The judge was punished by the Court of Justice of Rio de Janeiro and by the CNJ with censure, compulsory removal and two compulsory retirements for practices such as deliberate procedural delays to favor political groups in the city and the purposeful directing of actions to the court to grant injunctions for the benefit of military police officers.
Dino bases his decision on the fact that retirement is a benefit acquired after years of work and, therefore, does not fit as a punishment.
“Retirement is a social security benefit whose purpose is to guarantee workers decent living conditions when it is no longer possible to carry out work activities due to age limits, permanent incapacity for work or due to the combination of criteria of minimum age and contribution time”, states the minister.
Compulsory retirement with salaries proportional to time of service as a disciplinary penalty is provided for in article 42 of Loman (Organic Law of the National Judiciary), which also brings other types of sanctions.
However, the minister stated that the compulsory retirement applicable as an administrative punishment to magistrates, which had been inserted by constitutional amendment in 2004, ceased to exist in the Constitution with the promulgation of Constitutional Amendment No. 103/2019.
With this, Dino said that “it no longer makes sense for judges to be immune from an effective system of disciplinary responsibility, with the repudiated and already revoked ‘punitive compulsory retirement'”.
In the specific case, Dino also decided that the CNJ should reconsider the punishments applied to the Mangaratiba judge.
The judge presented three options: acquit the judge, apply another valid sanction – which does not include compulsory retirement – or order the case to be sent to the STF to propose an action to lead to the loss of office due to a final and unappealable conviction.
