STF reverses CNJ decisions and turns punished judges out of court – 05/22/2023 – Power

Responsible for judging actions against the CNJ (National Council of Justice) and the CNMP (National Council of the Public Ministry), the STF (Federal Supreme Court) has been the main hope of judges and prosecutors who try to reverse administrative punishments applied by the bodies.

These processes involve suspected irregularities and result in sanctions such as dismissal or compulsory retirement from careers.

At the end of last year, a Supreme Court decision benefited magistrates punished with compulsory retirement in 2010, for an episode that took place between 2003 and 2005 in Mato Grosso.

They were investigated on suspicion of diverting R$ 1.4 million to a Masonic lodge.

The case involved magistrates who received money from the Court of Justice of Mato Grosso as late payments and then made loans to Freemasonry. At the time, the court inspector himself understood that the transfer could be a favoring scheme with public money.

They were punished by the CNJ in 2010, but in the common court they ended up acquitted in 2017 by the Justice of Mato Grosso itself, under the understanding that they had receivables and that the amounts that were passed on were owed by the state.

In November 2022, the majority of the Second Panel of the Supreme Court understood that criminal acquittal should have repercussions on the administrative process, and the CNJ sanctions were annulled. Minister Edson Fachin disagreed, but was defeated.

This year, the STF also overturned council decisions through individual determinations by ministers.

In one of his last determinations before retiring, in April, Justice Ricardo Lewandowski suspended the compulsory retirement of the judge of the Rio Court of Justice Siro Darlan, applied by the CNJ.

Siro placed under house arrest an accused of leading a militia in Duque de Caxias (RJ), retired military police officer Jonas Gonçalves da Silva, known as “Jonas É Nós” —which raised suspicions, since Siro’s son had acted, until shortly before the writ of habeas corpus, as Jonas’s lawyer.

In 2021, Siro had already been removed from the Rio Court of Justice by the STJ (Superior Court of Justice) under suspicion of participating in a decision-making scheme. The criminal action, however, was suspended.

Regarding the Jonas case, the judge’s defense argued to the Supreme Court that illicit evidence of an invalid plea bargain was used in the process.

“Such award-winning collaboration was brought to the records of the administrative act and was always used as support for the very serious imputation made against the judge Siro Darlan”, criticized the defense, signed by lawyers Julio Matuch de Carvalho and Antônio Carlos de Almeida Castro, Kakay.

After Lewandowski’s decision, the judge said on social media that “God is wonderful” and that he “resurrected” him.

In March, Minister Luiz Fux also suspended the removal for 30 days of the Public Prosecutor Eduardo El Hage, coordinator of the extinct Lava Jato task force in Rio, in a CNMP process that accuses him of having disclosed confidential information about the operation.

Fux said he granted the suspension so that the CNMP could hear an appeal by El Hage against the sanction.

It was from 2020 onwards that the STF began to centralize cases against the CNMP and CNJ in court. Before, some actions were already presented in court, but others were also sent to the Federal Court.

Experts consulted by Sheet state that before the change in the Supreme Court’s understanding, council acts reached the court only through constitutional actions, mainly injunctions —an instrument granted to those whose rights were violated by public authorities.

“If the writ of mandamus did not fit, but only an ordinary action, the act would be discussed in the Federal Court of first instance”, says the lawyer and retired federal judge Cecília Mello.

“There was, yes, a legal uncertainty because similar acts could be being evaluated differently in the ordinary instances of Federal Justice and in the Supreme Court.”

Doctor of law José Miguel Garcia Medida states that “in a few words, it can be said that the Supreme understands that the CNJ and CNMP, due to the position they occupy, should be processed in the STF”. The exception are actions on normative acts of the CNJ, such as contracts, which are not the responsibility of the Supreme Court.

With the change in 2020, there was a defense that submitted a new request to the Supreme Court to reverse punishment – ​​even in cases that had already been denied.

This is the case of Judge Joaquim Pereira Lafayette Neto, from Pernambuco, who was compulsorily retired by the CNJ on charges of having gotten drunk, driven to a bar, where he allegedly drank even more, harassed two women and, with a gun in hand, threatened to shoot .

The judge’s defense had alleged “accidental drunkenness”, because the judge being diabetic, this condition aggravated the “effects that generated imbalance”.

In 2013, Lewandowski granted an injunction (provisional decision) during the July recess of the Judiciary suspending the CNJ penalty. In 2016, Minister Luiz Fux overturned the decision and maintained his retirement.

In January of this year, Lafayette Neto filed a new lawsuit with the Supreme Court in which he is trying to return to his role as a judge, returning to the argument that the penalty imposed by the council was disproportionate. The case was distributed to Fux.

Another judge who is trying to re-enter his career is Eduardo Luiz Rocha Cubas, from Goiás, who in 2018 informed the Army Command that he would order the collection of electronic ballot boxes for the military to carry out expertise on the devices.

His defense states that he only determined “the search and seizure of only 3 electronic voting machine modules” and that “this could never make the holding of elections unfeasible or confer an ideological effect” to his actions.

Both the case of Lafayette Neto and Rocha Cubas have not yet been analyzed by the ministers.