The (Advocacy General of the Union) defended the (Supreme Federal Court) that the minister’s decision that vetoed, in March, that a judge be punished with —which keeps the magistrate away, but still paid— cannot be extended to other magistrates.
In a statement to the court on Friday (8), the body stated that it should only be applied to the specific case judged by the minister, which involves the removal of a judge from the District of Mangaratiba (RJ), as it is a “subjective process” and to preserve due legal process and the adversarial process in other analyzes of alleged infractions.
“It is not compatible with this system to attribute automatic expansive effectiveness to a decision given in a subjective process and based on the peculiarities of a specific case”, says the AGU petition.
The Federal Attorney General’s Office also stated that it is the responsibility of the (National Council of Justice) and not the STF to exercise ethical-disciplinary control over judges and, therefore, the court must adopt a self-restraint stance, intervening only in specific situations.
“The jurisdictional supervision of the acts of the National Council of Justice by this Supreme Court must be guided by the strict observance of the constitutional guidelines that give the aforementioned body the leadership of strategic planning and administrative control of the Judiciary. Any judicial intervention, therefore, is not intended to establish an ordinary appellate instance, but is restricted to the correction of serious anomalies, flagrant illegalities or deviations of purpose that tarnish due legal process.”
The body also argued that, as it was a monocratic (individual) decision by Flávio Dino, it could not be extended beyond the specific case judged.
“The Brazilian constitutional system itself shows caution regarding the generalization of the effects of incidental pronouncements of unconstitutionality, traditionally subject to specific institutional mechanisms for eventual expansion of effectiveness”, he says.
On March 16, when he gave the decision, Flávio Dino 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 office of magistrates who commit serious crimes and infractions'”.
On that occasion, Fachin 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.
Fachin told interlocutors that the decision is in line with other decisions that had been made since 2019 and was, therefore, already a topic under debate.
UNDERSTAND THE DECISION
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.
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.
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.
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'”.
