The maximum punishment applied to judges who commit serious disciplinary infractions has been compulsory, in which they leave their position but continue to be paid.
On Monday (16), the minister of the (Supreme Federal Court) gave a . In parallel, the issue also took place in , where a PEC (Proposed Amendment to ) on the subject is being processed.
Understand what is being discussed.
Can judges be fired?
According to the Constitution, judges generally serve for life. In the first instance, they become this condition after two years of practice. Once the life term is acquired, the dismissal – when the judge is removed from the bench and stops being paid – would only apply to cases in which there is a final court ruling, as is the case with criminal convictions.
What is a disciplinary infraction?
As the position of judge carries a series of duties, there is the possibility of initiating administrative proceedings both in the court of which he or she is a member and in the eventual application of a disciplinary penalty in case of non-compliance. This type of decision is not judicial in nature.
CNJ Resolution provides for the disciplinary penalty of compulsory retirement in some situations, such as the judge’s manifest negligence in carrying out his duties and conduct incompatible with the dignity, honor and decorum of his duties. Since 2006, 126 penalties of this type have been applied by the CNJ alone.
What did Dino decide?
When analyzing the appeal of a Rio de Janeiro judge who intended to reverse his punishment by the CNJ, of mandatory retirement, Dino, instead of simply understanding whether it should be maintained or reversed, decided that the penalty itself was unconstitutional.
As a result, the most serious punishment that the CNJ could apply administratively would be availability, which is a type of leave for a specified period.
Dino complemented his order by stating that, if the CNJ maintains the previous understanding, that the case is of maximum severity, it should forward it to the AGU (Attorney General of the Union) — who, according to the minister, would be responsible for filing a lawsuit for loss of position, to be presented to the Supreme Court.
What is Dino’s argument?
According to Dino, following the 2019 Social Security reform, made through an amendment to the Constitution, the punishment of compulsory retirement became unconstitutional. For him, this arises from the fact that articles that previously mentioned the retirement of judges among administrative sanctions no longer mentioned it. He argues that the will of the legislator cannot be ignored.
Despite having removed this mention, the reform kept the list of possible sanctions open by saying that the CNJ can apply removal, availability or “other administrative sanctions”.
Does Dino’s decision apply to all cases?
In theory, that is why he issued the order, according to lawyers and professors consulted by the Sheet. Despite this, Dino’s order may end up paving the way both for other bodies to follow the precedent, ceasing to apply this type of punishment, and for the CNJ to change the resolution that provides for administrative penalties applicable to magistrates.
As it is a monocratic decision, without having yet been considered by the STF class or plenary, the decision is less robust. Furthermore, to be valid in all cases, the understanding is that this determination would need to be made in an ADPF (Argument of Non-compliance with a Fundamental Precept)
Does the CNJ intend to do something?
president of the CNJ and the STF, has already contacted the national inspector of justice, minister Mauro Campbell, to define the council’s directions.
Compulsory retirement, as a disciplinary penalty, is provided for both in a CNJ resolution and in the Judiciary Statute, whose legislative proposal initiative is reserved for the STF.
What does the PEC under discussion in the Senate say?
In 2024, Dino himself, then a senator, presented a PEC proposing that the possibility of applying compulsory retirement as a punishment to military personnel, magistrates and members of the .
Presented two years ago, the proposal has seen recent movement. At the beginning of March, the senator (PSD-MA), rapporteur at the CCJ (Constitution, Justice and Citizenship Commission), voted in favor of the proposal. Last Friday (13), it was listed for analysis by the CCJ in a session this Wednesday (18).
What are the main criticisms of Dino’s decision?
Critics point out that the decision was monocratic, with no previous precedent by the STF in this regard, and question the understanding that the competence to analyze cases of loss of CNJ position through the courts would necessarily lie with the STF.
What do judiciary representatives defend?
The president of the Association of Federal Judges of Brazil (Ajufe), Caio Marinho, highlights that, during their career, judges make “high contributions to their own pension system”. It also states that, therefore, “the simple replacement of compulsory retirement by loss of position, without due treatment of the social security issue, could lead to the State withholding amounts collected throughout the working life, without the corresponding consideration”.
Wanted by SheetAMB (Association of Brazilian Magistrates), Anamatra (National Association of Labor Justice Magistrates) and Apamagis (São Paulo Association of Magistrates) said they would not speak out.
