For the AMB, the CPC rule serves to disgrace magistrates – 06/18/2023 – Frederico Vasconcelos

The STF (Federal Supreme Court) started the virtual judgment of the action in which the AMB (Association of Brazilian Magistrates) questions the rule of the Code of Civil Procedure that prevents the judge from acting in cases in which he appears as a client of the law firm of his spouse or relatives.

This is Article 144 of the CPC, which, according to the AMB, “is only intended to disgrace some magistrates”.

The veto extends to “a partner or relative by blood or affinity, in a direct or collateral line, up to and including the 3rd degree, even if sponsored by a lawyer from another firm”.

The Direct Action of Unconstitutionality was proposed by the AMB in 2018, under the management of Judge Jayme de Oliveira, when the rule was in force for more than two years. The trial will end on the 23rd.

The AMB claimed that “the moralizing end desired by the legislator cannot justify the creation of an unconstitutional norm, impossible to be observed in isolation”.

The entity said that the rule must be “being breached by the almost absolute majority of magistrates, without them knowing that they are incurring in this breach”.

“The magistrate becomes aware of the impediment situation only after the fact has been unduly explored in the media”. In order to verify the existence of the prohibition, the judge would need to require the spouse or relative to forward him, daily, the list of clients, alleges the AMB.

Minister Edson Fachin, rapporteur, dismissed the action. He understood that there is nothing in the rule that makes it impracticable or that offends the guarantee of due process of law. “The legally established presumption of gain, economic or not, in the causes in which the client of the law firm of a relative of the magistrate acts is fair and reasonable”.

“Although in some cases it may be difficult to identify the law firm’s client list, the rule provided for in the CPC is far from impossible to comply with”, he maintained.

Fachin says that “it is up to the judge not only to trust the inexcusable duty of cooperation of the parties, for which the lawyer is an indispensable professional, but also, whenever there is reasonable doubt, to ask the parties to express their opinion.”

Gilmar Mendes disagreed. It considers unconstitutional, a rule that conveys “an absolute presumption of impediment”.

In his vote, he states that “the norm gives the parties the possibility of using the impediment as a strategy, defining who will be the judges of the case. The choice of judges, otherwise defined by the distribution, passes to the control of the parties, mainly those with greater economic power,” he said.

The law simply provided for the cause of impediment, without giving the judge the power or means to search the client portfolio of his relative’s office, in violation of the principle of proportionality, he said.

“A large part of the work force in my office is involved in verifying impediments, failing to assist in the judgment of causes”, says the minister. “Many legal contracts are private, or even secret. The lawyer’s activity is not limited to pleading in court”, he said.

“The Supreme Court is a court of national jurisdiction. The cases reach the court after years of processing, eventually with the sponsorship of the parties exchanged between various offices”, he says.

Luis Roberto Barroso accompanied the rapporteur, with reservations. “The questioned device constitutes a legitimate legislative option, as it contributes to impartiality and to the fight against personal influence in judicial processes”.

But he recognized the difficulty for the magistrate to detect the impediment: “The legal system does not impose on him the duty of maintaining a database of clients of the law firm of his spouse or relatives.”

“If the judge is not aware of the obstacle and it is not raised by the parties, impediment cannot be imputed by an unknown fact, and which, for this reason, does not violate the judge’s duty of impartiality and does not cause damage to the parties”, he concluded. .

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