Salomão files complaint against São Paulo TJ judge – 11/06/2023 – Frederico Vasconcelos

The national inspector of justice, minister Luís Felipe Salomão, ordered the summary filing of a disciplinary complaint filed by the company Kiko’s Fitness Store Participações Ltda. against judge João Francisco Moreira Viegas, from the São Paulo Court of Justice.

Viegas was accused of manipulating contractual clauses to render a decision detrimental to the complainant. The national magistrate understood that the refusal referred to an examination of a strictly jurisdictional matter.

“The exercise of judicial activity, under the constitutional mantle of the magistrate’s free conviction, is intangible in this correctional route, except in exceptional situations in which the bad faith of the member of the Judiciary is demonstrated, which did not occur in the case in question”, decided.

Salomão judged the analysis of the preliminary injunction to be prejudiced, as he understood that there were no elements in the case file that could indicate the occurrence of disciplinary misconduct.

The complaint was distributed on May 31st. The complainant is represented by lawyer Fábio Mesquita Ribeiro and others.

Complaint history

Kiko”s Fitness Store Participações Ltda. alleges that the company Caloi Norte and Caloi Fitness, its partner, filed an action to dissolve the company, which was judged valid in the first instance. An appeal was filed and the case was distributed to Viegas for reporting.

The magistrate would have issued a judgment without reasons, reproducing the sentence in full, which would demonstrate his partiality, as he failed to face the party’s arguments.

The complainant alleges that the judge failed to comply with the decision of the Superior Court of Justice, which granted the appeal so that the judge could remedy the omission and comment on the commission agreement clause.

He accuses the judge of “intentionally manipulating the clause to be analyzed, changing its original terms, so as to contain a supposed commission agreement, which does not exist in the true clause, thus giving it a conclusion that is different from reality”.

Viegas would have added contractual clauses to the ruling that were not in the original contract to render a decision detrimental to the complainant, which would have deceived the other members of the panel.

In the exception of suspicion against the judge, his defense was limited to saying that it was non-compliance on the part of the judge, saying nothing about the allegation of tampering with the document.

The complainant requested the judge’s precautionary removal from his position or from the case.

Information to the inspector

“Verifying the peculiarities of the case and the STJ’s statement, on more than one occasion, regarding the existence of error in proceeding [erro de procedimento] resulting from the omission in the analysis of elements in the case”, Salomão understood that the judge’s statement before analyzing the injunction was beneficial.

Viegas claimed that there was a material error “when taking a document other than the one that created the joint venture“, although related to it, which resulted in the affirmation of the existence of a clause allowing the pure and simple termination of the contract. He informed that the judgment on motions for clarification was pending, making a statement about the evidence produced in the case.

The complainant confirmed the pendency and the ruling handed down in the declaratory motions was attached, “indicating the need for an injunction with the magistrate’s removal due to what it alleges to be fraud and manipulation of the contract brought to the file, causing the process to be delayed”.

Understanding of the CNJ

Salomão decided that “the injunction in a process submitted for consideration by the National Council of Justice must only be granted on an exceptional basis, which is not envisaged, at least for now, in the specific case”.

According to the CNJ’s understanding, “it is unacceptable to initiate disciplinary proceedings when there is no evidence or facts that demonstrate that magistrates have failed to fulfill their functional duties or have disobeyed the ethical standards of the judiciary.”

“The dismissal refers to the examination of a strictly jurisdictional matter, as it concerns the disagreement regarding a judicial decision made in the main process, in which the occurrence of a material error was recognized by the complainant magistrate.”

Also according to the magistrate, it is not up to this council “to interfere in the conclusions regarding the analysis of evidence in the case and its merit”.

“The allegations inherent to the possible suspicion, as reported, were also the subject of the appropriate procedural instrument.”

“The main basis for the allegation of bad faith or alleged abuse of power and breach of partiality has been resolved, and the competent jurisdictional bodies are responsible for analyzing the correctness or incorrectness of the decision”, concluded Salomão.

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