Nine years later, Fux revokes the CNJ’s act against TJ São Paulo – 05/01/2023 – Frederico Vasconcelos

Minister Luiz Fux annulled the decision of the CNJ (National Council of Justice) which, in 2014, determined that the Court of Justice of São Paulo edit, within 60 days, a normative act with objective and impersonal criteria for the appointment of auxiliary judges in the capital and in courtrooms.

Nine years later, Fux understood that it is not up to the CNJ to impose regulation, under penalty of disrespecting the federative pact.

The CNJ had decided that “the appointment of magistrates with a maximum degree of discretion, without objective and impersonal criteria, violates the guarantee of immovability, the principle of the natural judge and violates judicial independence”.

In 2014, retired minister Ricardo Lewandowski granted an injunction in favor of the TJ-SP, suspending the CNJ measure. He understood that infralegal regulation would be irreconcilable given the shortage of auxiliary judges in the largest metropolis in the country. He said that the CNJ’s act ran up against constitutional obstacles.

It considered questionable that the CNJ determined that the head of the state Judiciary should practice an act not required by the local legislator. He recorded that the CNJ session had been presided over by the then national inspector, Minister Francisco Falcão, contrary to the Constitution and the Internal Regulations.

In the same session, the collegiate ordered the replacement of the name of Judge Roberto Luiz Corcioli Filho on the list of auxiliary judges of the Capital for criminal courts.

The case originates from a request for measures proposed by Corcioli, judged by the CNJ on June 16, 2014, under the rapporteurship of the then counselor Gisela Gondim Ramos.

The judge reported that he had received informal communication, by e-mail, that his assignment to serve in the Criminal Court had ceased due to the proposal of a disciplinary representation against him. He was glimpsed defect of the administrative act by misuse of purpose.

The reason for Corcioli’s removal was a procedure opened by the state Internal Affairs before representation of 17 prosecutors who accused him of promoting, in judicial shifts, “massive release of individuals whose imprisonment is essential”.

In 2018, TJ-SP applied the censorship penalty to Corcioli. Among the accusations made by the prosecutors, it was alleged that the judge “has an ideology against the current Penal System model and is favorable to extrication and acquittals, especially in cases of drug trafficking.”

In 2021, the CNJ annulled the applied censorship. The collegiate understood that the punishment hurts the independence of the judiciary. Several jurists made demonstrations in support of Corcioli.

The then National Justice Inspector, Maria Thereza de Assis Moura, concluded that Corcioli “exercised his independence, even though invoking minority theories”.

Two cases raised doubts. Corcioli had revoked the hospitalization of two teenagers accused of an offense similar to drug trafficking. He argued that drug trafficking is similar to the licit drug trade. The internal affairs commissioner saw an analogy to illustrate that drug trafficking “is not, in itself, committed with violence or serious threat to the person”.

Corcioli applied a penalty below the legal minimum to a former police officer for rape of a vulnerable person, replaced it with restrictive penalties of law and granted triple detraction for the arrest in the course of the process. For Maria Thereza, the defendant denoted “a sexual predator profile”.

Luiz Fux, then president of the CNJ, accompanied the majority, but criticized magistrates with an “egocentric posture”.

“It is necessary to curb these impulses that compromise the pedagogical function of Justice”, he recommended.

In the monocratic decision of the last day 13, Fux considered the evidence and arguments “insufficient to demonstrate, in plan, alleged illegality or abuse”, because it would be necessary to examine all of Corcioli’s legal situation and professional performance.

He stated that it is not necessary to assess in the writ of mandamus whether “the TJ-SP presidency is or is not making use of its discretionary competence for the purpose of removing a determined magistrate on a case-by-case and personal basis.”

Lawyer Andre Kehdi, who defends Corcioli, said that Fux’s decision “is authorization for the TJ-SP to continue with its anti-republican practice of allowing its leadership to appoint auxiliary judges in total disagreement with democratic rules.”

An experienced São Paulo judge says that the STF is beginning to question the ideological position of the TJ-SP.

The current rapporteur, counselor Giovanni Olsson, determined the suspension of the procedure for an indefinite period, without prejudice to its immediate resumption in the event of a new decision by the STF or certification of the final and unappealable decision.

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