SIZE Diminuir tamanho da fonte Aumentar tamanho da fonte
Highlights Print

STF concludes the judgment indicating the CNJ competence for investigating judges

Monday, February 13th, 2012



The Plenary of the Brazilian Federal Supreme Court (STF)concluded on Wednesday 8th the referendum judgment regarding the partially conceded preliminary injunction by the Minister Marco Aurelio on December 19th,
2011, in the Action of Unconstitutionality (ADI 4638), filled by the Association of Brazilian Judges (AMB) against some points of the Resolution 135 of the National Justice Council (CNJ), that standardized the norms related to the disciplinary administrative proceedings applicable to the judges.

The National Justice Council (CNJ) is a body of the Judiciary Branch, created by the Constitutional Amendment 45, on December 31st, 2004, that included the article 103-B to the Brazilian Constitution. With headquarters in Brasília and operation in all the national territory, the CNJ is responsible for the control of the administrative and financial performance of the Judiciary power and the control of the fulfillment of the judges functional duties, promoting the improvement of the public service in the Justice provision. These attributions are restricted to the administrative sphere, so that the jurisdictional acts cannot be reviewed by the Counsel.



Understand the Trial:



AMB questions CNJ norm concerning disciplinary procedure applicable to magistrates

In August 2011, the Association of Brazilian Magistrates (AMB) filed in the Supreme Court (STF) Direct Action of Unconstitutionality (ADI 4638) to question the constitutionality of Resolution 135, from National Justice Council (CNJ), which regulates the uniformity of norms relating to administrative procedure applicable to discipline judges.


In the suit, the AMB questioned in detail each item of the resolution, according to the association, is unconstitutional because the issue dealt on it is not among the constitutional powers of the Council. According to AMB, the matters raised by the resolution, especially those that deal with censorship and warnings are of exclusive competence of the courts. Other topics are also addressed in Resolution 135, as penalties of removal, availability and retirement that, according to the AMB, are of exclusive competence of the complementary legislator, as determined by the Federal Constitution (article 93, caput, items VIII and X).


For the association of magistrates, in this case the CNJ requires courts to respect its resolution, at the expense of the rules issued by the courts. "It is clear that the competence of CNJ is to hear complaints against members or organs of the Judiciary Branch, since it occurs without loss of the correction and disciplinary powers of the courts", said the AMB to highlight that it is not up to CNJ to create rules to be followed by the courts and magistrates. For these reasons, the AMB asked the Supreme to declare the unconstitutionality of Resolution 135 of the CNJ.



Injunction suspends devices of CNJ resolution


In December 2011, the Minister Marco Aurelio, rapporteur of the ADI 4638, granted, partially, the request for an injunction suspending certain provisions of Resolution 135, from National Justice Council (CNJ).


In the decision, the rapporteur of the ADI 4638 said that "the national treatment reserved for the Judiciary Branch by the Constitution does not authorize the CNJ to suppress the independence of the courts, turning them into mere automatic agencies, deprived of self-control". According to Minister Marco Aurelio, the ADI is not about CNJ's intervention in a specific disciplinary case, but the power to establish rules on all disciplinary proceedings, which violates the autonomy of the Judiciary and violates the reservation of complementary law. "It is not for the CNJ to create duties, rights and administrative sanctions through resolution, or be a substitute for the Congress and change the rules of the Organic Law of the Judiciary", he said.


The Minister rejected, however, the request for suspension of Article 4, which, according to the AMB, would have removed the requirement of secrecy in the imposition of sanctions of warning and censure, as foreseen in the Organic Law of the National Magistracy (Loman), and Article 20, regarding the prosecution of administrative disciplinary proceedings in open court, except in the case of the public interest. "Respect for the Judiciary can not be obtained through shielding designed to protect from public scrutiny the judges and the sanctioning body", said the rapporteur. "This measure is incompatible with freedom of information and the idea of democracy".  For Minister Marco Aurelio, the confidentiality with the purpose of protect the honor of the magistratescontributes to an atmosphere of suspicion and not for the credibility of the Judiciary".


In summary, the decision suspended the effectiveness of paragraph 1 of Article 3, of Article 8, of the paragraph 2 of Article 9 and of Article 10, the sole paragraph of Article 12, the head of Article 14 and its paragraphs 3, 7, 8 and 9, of Article 17, head, sections IV and V, of paragraph 3 of Article 20, of paragraph 1 of Article 15, and the sole paragraph of Article 21, all of the questioned resolution. Regarding the paragraph 3 of Article 9, the decision only suspended the effectiveness of the rule as to division of powers, "so as to enable the courts to define, through internal regulations, those responsible for fulfilling the obligations there versed”. Regarding the caput of Article 12, the injunction was granted to "give it interpretation in conformity" laying the subsidiary jurisdiction of the CNJ in disciplinary scope. The request for injunction was dismissed regarding the Article 2, the item V of Article 3 and Articles 4, 9 and 20 of Resolution 135.


The monocratic decision needed to be endorsed by the plenary at the beginning of the Judicial Year 2012.


Read the full decision


Conclusion of the trial that indicated concurrent jurisdiction of the CNJ to investigate Judges


In the analysis of one of the most controversial provisions (Article 12 of Resolution 135), the Ministers decided, by majority vote, that the CNJ can initiate investigations against magistrates acting independently of the internal affairs of the court, without the need to explain its decision.


The Ministers examined the issue in three sessions. In the first two sessions (days 1st and 2nd February), the Plenary analyzed the Articles 2nd, 3rd, section V, 3rd, paragraph 1, 4 and 20, 8th and 9th, paragraphs 2 and 3, 10 and 12 of Resolução
135. In the last session (February 8th), they concluded the analysis, also point by point, of paragraphs 3, 7, 8 and 9 of Article 14th; head and sections IV and V of Article 17th, paragraph 3 of Article 20, paragraph 1 of Article 15 and single paragraph of article 21 of the norm of CNJ.

See below decision of the Plenary of the Supreme Court on each item questioned by the AMB on the ADI 4638:


Article 2

By majority of votes, the Court followed the action rapporteur and denied the preliminary injunction regarding the Article 2 of Resolution 135, to maintain the effectiveness of the device. The rule states the following: "It is considered Court for the purposes of this resolution, the National Justice Council, the Plenary or the Special Organ, when existing, and the Federal Justice Council, under its administrative jurisdiction defined in the Constitution and the very laws".


Article 3, section V

This device sets as disciplinary penalty - applicable to the magistrates of the Federal Courts, the Labor Courts, the Electoral Courts, of Military Justice, Justice of the states and
Federal District and Territories - the compulsory retirement. The Plenary of the Supreme Court, by unanimous vote, endorsed the preliminary injunction issued by Minister Marco Aurélio (rapporteur) to maintain the effectiveness of Article 3, section V of Resolution 135 of the National Justice Council.

Article 3, paragraph 1

The device allows the application, to magistrates, the penalties provided in the Law 4.898/65 (Law of Abuse of Authority), provided they are not incompatible with the Loman (Organic Law of the Magistracy). The Minister Marco Aurelio accepted the request of AMB and suspended the application of this device in case of civil administrative penalty, arguing that the penalties are already provided for the judges exhaustively on the Loman. "Failure to comply with any administrative duties generates penalties established on the Organic Law itself", he said. Most Ministers accompanied the vote of the rapporteur.


Article 4

Article 4, discussed in the session of day two, says the negligent magistrate shall be subject to penalty of warning, censure or a more severe penalty if the offense requests. The validity of the device was maintained, confirming the decision of the rapporteur, Minister Marco Aurelio that, at this point, rejected the request for precautionary measure.


Article 20

Article 20, which also had kept its validity, says the judgment of administrative disciplinary proceedings against judges will be held in public session. Ministers confirmed the decision of the rapporteur that, also at this point, rejected the request for precautionary measure.


Article 8 and 9, paragraphs 2 and 3

The Ministers maintained the validity of the devices, with the understanding that it is up to the competent organ of each court the determination of any irregularities committed by judges. For the Ministers, however, it is not up to CNJ to define who is competent to make this determination in the courts. The decision was unanimous.


Article 10

By majority of votes, the Plenary decided to maintain the validity of Article 10 of Resolution 135/2011, of the CNJ, a device that deals with the possibility of appeal in the cases mentioned in Articles 8 and 9 of the norm. The article says that "the decisions referred to in the preceding articles may be appealed within 15 days to the Court, by the author of the representation". The Ministers decided, however, to exclude the final part of the device, giving interpretation according to the Constitution to the article to make it clear that they can appeal against the referred decisions all interested in the procedure, whether the author of the representation or the magistrate accused.


Artigo 12

By six votes to five, the Ministers maintained the original and concurrent jurisdiction of the National Justice Council to investigate judges under Article 12 of CNJ Resolution 135/2011. The device, which had been suspended on the preliminary decision of the rapporteur of the Direct Action of Unconstitutionality 4638, Minister Marco Aurelio, says that "for administrative disciplinary proceedings and for the application of any penalties provided by law, the jurisdiction is of the Court to which the magistrate belongs or be subordinated, without harm to the role of the National Council".


Article 14, paragraphs 3rd, 7th, 8th and 9th, Article 17, head and sections IV and V, and Article 20, paragraph 3rd

By majority of votes, the Ministers denied referendum to the injunction at this point and recognized the jurisdiction of the National Justice Council to regulate the initiation and prosecution of disciplinary proceedings against judges. The local court will have a period of 140 days to complete the administrative process, period that may be extended for a valid reason. The president and inspector of the court shall be entitled to vote and the process will not have an auditor. The magistrate who does not file a defense within the defined period may be declared contumacious and his defense will then be assumed by a dative defender.


Article 15, paragraph 1

Also by a majority vote, defeated the Minister Rosa Weber, the Ministers confirmed an decision of Minister Marco Aurelio regarding the suspension of the device providing the precautionary removal from office of the magistrate even before the administrative disciplinary proceedings against him be initiated. This possibility was dismissed.

Article 21, single paragraph

In the analysis of the last device questioned by the AMB, the Plenary decided, also by majority of votes, that when there is disagreement of the court regarding the penalty to be applied to the magistrate, every suggestion of penalty should be voted separately so that only that ones which achieve a quorum of absolute majority is applied in the deliberations. At this point, the Plenary gave interpretation according to the device of CNJ Resolution 135 so it do not conflict with what is in items VIII and X of Article 93 of the Constitution.




Follow the STF International Portal on Twitter at
http://twitter.com/stf_intl.

 

Contact us
Praça dos Três Poderes - Brasília - DF - Brazil - Zip Code 70175-900 Phone: 55.61.3217.3000