Mandatory retirement had long been the target of criticism because it allowed disciplined judges to leave office while continuing to receive pay.

The proposal had been introduced in June, but its consideration was suspended to allow discussions with judicial associations. At Tuesday’s plenary session, council members heard oral arguments from representatives of those organizations and adopted a revised version containing adjustments to the transitional rules governing implementation of the resolution.

The new resolution takes effect on the date of its publication and will also apply to pending cases. It will not apply, however, to disciplinary administrative proceedings (PADs) or disciplinary review proceedings that have already been finally concluded.

Organizations representing members of the Judiciary had requested that the new sanction’s pension rules also be specified. The rapporteur, however, concluded that the issue should not be addressed through a CNJ regulation but rather decided on a case-by-case basis by the competent courts. He also argued that other “gaps” left by the resolution, such as procedural rules, should be resolved by the STF and that the council was merely complying with the Court’s ruling.

The resolution approved by the CNJ changes the rules governing disciplinary administrative proceedings against judges and the applicable penalties. Under the proposal, mandatory retirement is eliminated as a disciplinary sanction and replaced by removal from office. The other penalties currently provided for remain in force: warning, reprimand, compulsory transfer, compulsory leave, and dismissal of judges who do not have life tenure.

According to the resolution, the penalty of removal from office may be imposed on judges who seriously violate their official duties, engage in conduct incompatible with the dignity, honor, and decorum of judicial office, demonstrate an inability to perform their duties, or display performance incompatible with the responsibilities of the Judiciary.

The penalty may also be imposed on judges who engage in activities incompatible with judicial office, receive payments related to cases under their jurisdiction, or participate in partisan political activities.

When a disciplinary administrative proceeding concludes that the penalty should be imposed, the judge will be immediately removed from judicial duties and will receive compensation proportional to the length of pension contributions until the proceeding reaches a final, unappealable judgment. During that period, the court must declare the position vacant and take steps to fill it.

In cases decided by courts or by the superior councils of the Labor Court system and the Federal Court system, the decision must be forwarded to the CNJ for review after all appeals have been exhausted. When the judge under investigation is a member of a superior court, the review will be conducted by the National Inspector of Justice.

If the CNJ upholds the penalty, the case will be referred to the Office of the Attorney General (AGU), which will have up to 30 days to file an action before the STF seeking the judge’s removal from office. The Supreme Court will then decide the case and determine whether to impose the sanction on a final basis.

At the same plenary session on Tuesday, STF and CNJ Chief Justice Edson Fachin also introduced a proposal aimed at preventing conflicts of interest within the Judiciary. Consideration of that resolution, however, was suspended for 60 days to allow courts, judicial councils, and judges’ associations to submit comments on the proposal.

After that discussion, the initiative will be placed on the agenda for consideration by the council members. If approved, the measure will establish guidelines for all levels of the Judiciary. The only exception is the STF, which is not subject to the CNJ’s oversight.

In broad terms, the proposal identifies situations requiring judges to exercise “special attention,” such as participation in events, conferences, seminars, and academic activities funded or predominantly funded by private companies. It also addresses the receipt of gifts, benefits, or other advantages, as well as family or professional relationships “capable of creating conflicts of interest.”

According to the proposal, judges and court employees in such situations must comply with transparency requirements regarding funding sources and the extent of expenses covered. Courts may also establish mechanisms requiring the disclosure of such interests, and academic activities must remain compatible with judicial duties and judicial independence.

*By Giullia Colombo — Brasília

Source: Valor International

https://valorinternational.globo.com/