Bonfire of the Vanities

The controversy sparked by Minister Eliana Calmon, the National Justice Inspector, revealed a truth that was public knowledge but that few authorities dared to say: that there are negligent and corrupt judges hiding behind their robes. But it concealed a detail: that in the fierce war between the minister and the president of the Supreme Federal Court, Minister Cezar Peluso, the minister chose the Court of Justice of São Paulo as an indirect target to attack her colleague, the head of the supreme court and the CNJ (National Council of Justice).

The minister has already made several phone calls to the president of the São Paulo court, Judge José Roberto Bedran, to apologize and say that it was not her intention to attack the highest court in the country, for which she has deep admiration. The president listened, considered the matter, and awaited public statements that would endorse the minister's words spoken on the phone. That did not happen. Whenever she can, Minister Eliana Calmon cites the São Paulo Court as the most notorious example of an institution that is closed and resistant to any change proposed by the National Council of Justice.

The most recent example does not seem to corroborate the minister's words. In the first half of this year, the Special Body of the Court of Justice of São Paulo applied the penalty of ineligibility against a magistrate from the interior of the state: Judge Heliana Maria Coutinho Hess, who was the head of the 2nd Public Treasury Court of Campinas. This administrative penalty is one of the most severe provided for in the Organic Law of the National Judiciary (Loman). The punishment is reserved for magistrates caught in extremely serious offenses and prohibits the magistrate from practicing the profession.

The judge was accused of failing in her duties by ruling on a petition that she herself had authored. The case involved a request to annul a traffic fine. In her defense, the judge claimed that she had not read the names of the parties involved in the case before beginning her ruling and that, when she realized the mistake, she passed the responsibility for the decision to a colleague.

The National Council of Justice disapproved of the decision by the Court of Justice of São Paulo, overturned it, and ordered the São Paulo court to execute a lighter penalty decided by the council members: compulsory removal for the judge. The Council's decision responded to a request from the judge's defense, which disagreed with the penalty of suspension with proportional pay imposed by the São Paulo Court of Justice.

According to council member Marcelo Nobre, the initial rapporteur for the disciplinary review process, the judge has lost credibility to serve in the Campinas district. "It is in the interest of the magistrate and the judiciary that the judge not remain in that district, as her credibility has been undermined," he explained.

Last Wednesday (19), the Court had to swallow hard and comply with the CNJ's decision. It removed the judge from the Campinas region to the 4th Labor Accident Court of the Capital. The decision was taken by a majority vote of the Special Body. One judge spoke in favor of removal to the auxiliary judge position in Santo Amaro.

This fact was yet another ingredient in the war involving the National Justice Ombudsman, Minister Eliana Calmon, and the president of the CNJ and the STF, Minister Cezar Peluso. The dispute spills over into the São Paulo Court, which the minister implies in her interviews is resistant to innovation.

Minister Eliana Camon had already caused unease among her peers by stating that there were "bandits in robes" infiltrated in the judiciary. At the time, the National Inspector General of Justice stated that in the last 10 years only 39 judges had been investigated in operations by the Federal Police, 31 of them were indicted by the Public Prosecutor's Office, seven were tried, and only two were convicted.

The Court of Justice has 11 judges removed from their duties due to disciplinary administrative proceedings. One judge received the maximum penalty allowed by law, which is retirement. Five were removed from the districts where they served before being caught in irregularities, 36 received a warning, and the same number have a censure penalty on their record. The punishments are public, and the names of the magistrates are registered on the São Paulo court's website.

“I can guarantee that, here [in São Paulo], judges who commit minor offenses and serious infractions are duly punished,” stated Judge Xavier de Aquino. According to the magistrate, in the last decade in São Paulo, 159 cases were initiated against judges, resulting in 89 punishments.

The Court of Justice has serious cases involving magistrates that are still pending appeal. In one of them, a judge from the capital is accused of involvement with a criminal organization. According to the judge's defense, he was being persecuted by the judges of the Court of Appeals who convicted him, and his tax secrecy was violated improperly.

The judge is prohibited from exercising his duties. According to a decision by the São Paulo court, the magistrate maintained a joint account with his ex-wife, who was accused of working for the PCC (Primeiro Comando da Capital, a Brazilian criminal organization). According to the court, the judge was aware of his ex-wife's connections to the criminal organization, and the proceeds of this activity were deposited into his bank account.

In another case, the Court ordered the opening of a public criminal action against a judge for the crimes of extortion and passive corruption. The magistrate was accused by the head of the Public Prosecutor's Office of demanding an undue advantage of US$600 in order not to declare a company bankrupt. The judge was also accused of demanding an advantage to release funds deposited in another case that was being processed in the court where he was the presiding judge.

In the first week of November, three administrative disciplinary proceedings against judges who fail to fulfill their duty to judge and hold gigantic backlogs of undecided cases will be reviewed by the Court of Justice. Two of them were reviewed last Wednesday (19), but a quorum was not reached for the application of a penalty or acquittal. The vote for compulsory retirement was 12 to 11, one less than the absolute majority of 13 votes for this type of decision. If this same situation persists, the president of the Court of Justice has already stated that he will comply with the CNJ resolution and send the cases to the Council for consideration. This will add fuel to the fire.