Toffoli’s decision exposes conflict in the STF – 12/22/2023 – Power

The performance of STF (Supreme Federal Court) minister Dias Toffoli in an action involving J&F, a conglomerate for which the judge’s wife advocates, is emblematic of a new scenario that compromises the court’s image of impartiality, experts say.

Last Wednesday (20), Toffoli suspended a fine of R$10.3 billion imposed on the company owned by brothers Joesley and Wesley Batista in a leniency agreement signed in 2017.

As the magistrate’s wife works for J&F, he should have been considered prevented from carrying out the trial, if the STF had not changed its understanding regarding one of the possibilities of impediment provided for in the CPC (Civil Procedure Code).

In August of this year, the court ruled section of article 144 of the Code unconstitutional. The text prohibited the judge’s participation in cases in which he “appears as a client of the law firm of his spouse, partner or relative, blood or similar, in a direct or collateral line, up to and including the third degree, even if sponsored by a lawyer from another office.” At the time, the court understood that the prohibition violated the principles of reasonableness, proportionality and natural justice.

The change, however, was criticized. At the time, the PGR (Attorney General’s Office) and the AGU (Attorney General’s Office) defended the constitutionality of the device, understood as important to guarantee the impartiality of judges.

Toffoli’s wife, Roberta Rangel, is a lawyer for the Batista brothers’ group, responsible for the litigation between the company and Paper Excellence over control of Eldorado Celulose.

Toffoli, when deciding on the case, rejected a request from J&F to suspend previously signed legal transactions. The purpose of this request was to review the sale of Eldorado, a business that has been under dispute for years.

The case must be analyzed in lower courts.

For Miguel Godoy, professor of constitutional law at UFPR (Federal University of Paraná) and UnB (University of Brasília), the recent case involving minister Toffoli exemplifies a conflict that had already been resolved by the CPC, but which was reopened by the change of court interpretation.

“Minister Toffoli’s decision, regardless of whether it is correct or not, shows how the role of ministers’ relatives as lawyers in favor of the interests of people judged by magistrates calls into question the impartiality of ministers and the court itself”, states Godoy.

According to Diego Nunes, law professor at UFSC (Federal University of Santa Catarina), the change goes against basic ethical principles of impartiality provided for in the CPC and the Organic Law of the Judiciary.

According to him, the measure conveys the idea that “the legal world is a club of untouchables.”

“The STF creates, in this case, the idea that it is above the law and principles. Clearly there are universally known ethical principles regarding impartiality”, he states.

Gustavo Sampaio, professor of constitutional law at UFF (Universidade Federal Fluminense), states that, from a legal point of view, there is no problem in relation to the new understanding of the Supreme Court.

“The court considered that, if there were a restriction on the lawyer’s professional practice, the fact that he had a relationship with the magistrate would be undermining his professional autonomy.”

Despite this, Sampaio considers that, from a moral point of view, the change was not recommended, as it could generate distrust about the judicial decision.

Jordan Tomazelli, master in procedural law from the Federal University of Espírito Santo, states that the impediment was a way of guaranteeing, based on an objective criterion, the impartiality of the ministers.

According to him, the principle of procedural cooperation could be used to overcome the difficulty of judges knowing the entire client portfolio of spouses and relatives – the STF’s argument –, without violating impartiality.

“The magistrate would not need to actively search for the entire client portfolio of their relatives and spouses. He could wait for those involved to express themselves about the impediment provided for in the section. Thus, there would be no violation of reasonableness and proportionality”, says Tomazelli.

For Godoy, the STF decided to declare the section as unconstitutional and now “suffers from the consequences of its own decision, which leaves it with a damaged image of impartiality.”

When the Supreme Court judged the issue in August, the vote that prevailed was a divergence opened by Minister Gilmar Mendes, who considered that the section was not “the best remedy to combat this problem”. He stated that the provision of the Civil Procedure Code made it possible to create strategies to prevent the case from being judged by a specific magistrate.