Courts and Prosecutors ignore STF to obtain readjustment – 06/29/2023 – Power

The main Courts of Justice and State Public Ministries unconstitutionally linked the salary adjustments of their members with the increase in the salaries of ministers of the STF (Federal Supreme Court).

Judges and prosecutors from at least 16 states received a 6% readjustment in April without sending a bill to the respective Legislative Assemblies. The percentage follows the increase in salaries of STF ministers approved by Congress and applied in the same month.

At least since 2020, the STF has considered unconstitutional the “automatic readjustment” in the states from the increase for court ministers or other federal authorities.

The courts and prosecutors who adopted the practice used decisions by the CNJ (National Council of Justice) and the CNMP (National Council of the Public Prosecutor’s Office) that authorize it as justification.

After questioning the SheetMinister Rosa Weber, president of the STF and CNJ, suspended on Tuesday (27) the resolution that provided for the norm.

Of the 5 courts considered large by the CNJ (National Council of Justice), 4 (SP, RJ, MG and PR) made the readjustment without sending a bill to the Legislative Assembly, a practice followed by the Public Prosecution Service of the same states. The increase was formalized through ordinances and internal resolutions.

In this group, only in Rio Grande do Sul was there respect for the understanding of the Supreme Court. The bills sent by the TJ and the Prosecutor’s Office for the readjustment contained an article in which they made salary binding a rule. However, amendments by the Assembly removed this text from the approved laws.

The increase sanctioned by President Lula in January raised the salary of STF ministers from R$39,300 to R$41,600 in April. Federal law provides for a staggered readjustment until 2025, when the subsidy will reach R$ 46,400 (an increase of 18% in total).

The last salary adjustment made to STF ministers took place in 2015. Since then, accumulated inflation has been 44.5%, according to the Central Bank.

Judges and state attorneys may, according to the Constitution, receive up to 90.25% of the salaries of STF ministers. As a result, the ceiling for maturities in these categories rose from R$35,500 to R$37,600. If it follows the staggered readjustment defined by federal law, it will reach R$ 41.8 thousand in 2025.

The Attorney General’s Office has offered since 2020 a total of 27 actions to annul state laws that establish automatic readjustments linked, among other triggers, to increases by STF ministers.

The first decision on the subject was given in November 2020. The ministers considered unconstitutional the linking of the salary adjustment of attorneys of the Legislative Assembly of Mato Grosso to the same percentage given to members of the STF.

The court also pointed out irregularities in similar triggers given to the salaries of state deputies from Sergipe, prosecutors from Roraima and members of the Public Ministry in Rondônia.

In June of this year, the STF analyzed the same triggers created by laws passed in Tocantins that benefited MP-TO and TJ-TO members. The vote of Minister Luis Roberto Barroso, rapporteur of the case, makes clear the unconstitutionality of the binding.

“There is no justification for the regional entity to delegate to the federal law, which establishes the remuneration of the minister of the STF, the function of, obliquely, determining the value of the subsidies of the judges or judges”, wrote Barroso in his vote, approved unanimously of the plenary on this point.

In addition to declaring the state law unconstitutional, the plenary of the STF decided by a majority (8 to 2) to set the trial thesis. The measure obliges all courts in the country to automatically adopt the same interpretation on the subject.

Injunctions granted by members of the CNJ and CNMP in 2014 and 2015 maintained the “automatic readjustment” over the years. On May 23 of this year, the CNJ concluded the judgment and decided to include the trigger in a 2006 resolution that deals with the remuneration ceiling for judges.

In the session, counselor Luiz Fernando Bandeira de Mello voted against changing the resolution.

“This has an impact on the state budget, it needs to be planned by the governor and a referendum by the Legislative Assembly. It does not seem reasonable to me that the National Congress, by changing the subsidies of the ministers of the Supreme, impact the accounts of the most diverse states of the federation” , said the adviser.

The trial that defined the inclusion of the trigger in the CNJ resolution took place four days after the STF set the judgment against the “automatic readjustment”.

The President of the STF and CNJ, Minister Rosa Weber, voted differently on both occasions. At the Supreme Court, she agreed with Barroso in declaring the Tocantins law unconstitutional. In the Council, she accompanied the majority to approve the inclusion of the automatic readjustment in the resolution.

Among the states that granted the automatic readjustment are Rio de Janeiro and Goiás. Both joined the Fiscal Recovery Regime, a 2017 legislation that helps states facing serious fiscal imbalances. The Court of Justice and the Public Ministry of Minas Gerais, which applied for admission to the program, also adopted the practice.

The Fiscal Recovery Regime does not prohibit recompositions limited to inflation. But it requires the approval of a specific law, as provided for in the Constitution. Sending the bill may have political repercussions, as other civil servants also plead with deputies for the readjustment.

Courts and prosecutors cite state laws, decisions of the CNJ and CNMP

The AMB (Association of Brazilian Magistrates) and Conamp (National Association of Members of the Public Prosecution Service), authors of the requests for automatic readjustment at the CNJ and CNMP, respectively, did not respond to the questions in the report.

The TJ-SP stated, in a note, that the readjustment of judges in the state is automatic, “not depending on a specific state law”. The court cited state law 1.031/2007, whose content is similar to that of Tocantins, considered unconstitutional by the STF.

“The judgment referred to [sobre as leis de Tocantins] not yet final and unappealable, since motions for clarification have been filed. In addition, it specifically concerns the law contested in the aforementioned direct action of unconstitutionality (from the state of Tocantins), not extending its effects, even if it becomes final, to other state laws”, says the TJ-SP note.

A similar position was taken by the TJ-PR and MP-PR, which mentioned state laws that provide for the trigger.

The TJs of RJ, BA, PE, MG, GO, RN, MT, MS and ES stated that they adopted an understanding approved by the CNJ.

The Minas Gerais court stressed that the Supreme Court’s decision on the laws of Tocantins “does not deal with the factual situation of this court”. The TJs of PE, GO and MS cited state legislation that governs how judges are paid.

The Public Prosecutors of MG, BA, PE, SC, GO and ES affirmed that they are in agreement with the decisions of the CNMP. The AC and MA TJs also mentioned the Judicial Organization Code. Mato Grosso’s MP cited a 2016 state law that provides for automatic recomposition.

The Courts of Justice and Prosecutors of the other states did not respond.

Through the press office of the STF, Rosa Weber said that the judgment at the CNJ analyzed the issue from the administrative point of view and, at the Supreme Court, at the constitutional level. She declared that considering the constitutional issue to be more relevant, she decided to suspend the Council’s resolution.

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LIST OF COURTS AND PUBLIC DEPARTMENTS THAT HAVE NOT SUBMITTED A BILL FOR ADJUSTMENT

Courts of Justice

• São Paulo
• Rio de Janeiro
• Minas Gerais
• Paraná
• bahia
• Santa Catarina
• Goias
• Pernambuco
• Maranhao
• Holy Spirit
• Mato Grosso
• Mato Grosso do Sul
• large northern river
• Amapá
• Tocantins
• Acre
• roraima

Public Ministries

• São Paulo
• Rio de Janeiro
• Minas Gerais
• Paraná
• bahia
• Santa Catarina
• Goias
• Pernambuco
• Mato Grosso
• Holy Spirit
• Tocantins
• Acre