By MARCELO AITH*
Democratic rupture processes invariably begin with the weakening of the Judiciary, as occurred in Hungary with the dictator Prime Minister Viktor Orbán
On September 9, 2024, congressmen from the pro-Bolsonaro wing filed a new impeachment request against Supreme Court Justice Alexandre de Moraes. The document points to the following facts to substantiate a crime of responsibility: “It should be emphasized that Justice Alexandre de Moraes would have used his position to forge illegitimate and illegal evidence with the aim of political persecution, instituting legal proceedings, requesting investigations, applying legal measures and even sanctions! This is an attack on democracy, due process, the instrumentality of procedural acts and legal certainty!”
The impeachment process of a Supreme Court Justice in Brazil is a complex procedure that involves several stages. The Constitution, in its article 52, section II, establishes that it is the responsibility of the Federal Senate to try and judge Supreme Court Justices for crimes of responsibility. Law No. 1.079/1950, in turn, is the infra-constitutional norm that defines crimes of responsibility and regulates the trial process. The crimes of responsibility of Supreme Court Justices are specifically listed in article 39 of Law No. 1.079/1950.
The main crimes of responsibility that can be imputed to a STF minister are: exceeding or abusing judicial functions, exercising power arbitrarily or in disagreement with current legislation (Arbitrary Exercise of Power); issuing a judgment or decision that is clearly contrary to the express text of the Constitution or laws (Decisions in Disagreement with the Laws); failing to ensure compliance with constitutional and legal norms, especially in cases of serious violation of fundamental rights (Failure to Protect the Constitution); practicing acts that compromise the honor, dignity and decorum of the office of STF minister (Conduct Incompatible with the Dignity of the Office); engaging in acts of corruption or accepting undue advantages by reason of the office (Corruption); interfering in the attributions of other powers or bodies, violating the principle of separation of powers (Undue Interference).
Although the accusatory system is adopted in Brazil – different actors in the process to investigate, accuse and judge –, the Internal Regulations of the Supreme Federal Court authorize that, in the cases listed in article 43 (RI – STF), the minister presides over the investigations and participates in the trial.
Thus, the requests for information and determination of investigations directed to other bodies of the judiciary, formulated by Minister Alexandre de Moraes, to investigate the involvement of some people in the acts of January 8, 2023, although unorthodox, are within the limits established by the Court's Internal Regulations - a rule with the nature of law -, which would, in theory, dismiss the allegations made in the impeachment request filed by the pro-Bolsonaro deputies and senators.
If the Federal Senate finds the impeachment request admissible and to process it, it must follow the procedural rules set out in article 41 of Law No. 1.079/1950.
In effect, the procedure begins with the filing of a formal complaint, which can be filed by any citizen, indicating, with reasoned grounds, including evidence, that a Supreme Court Justice committed a crime of responsibility. The complaint must be substantiated and contain evidence of the allegations.
After the protocol, the case files are forwarded to the President of the Senate, who decides whether or not to authorize the processing. If the authorization is granted, a special committee is formed, which will be responsible for preparing a report on the complaint and preliminarily approving whether or not it meets the legal requirements. After the report is prepared, it can be approved or rejected.
If approved by a simple majority (half plus one of those present on the committee), the report is forwarded to the Senate Plenary for a decision on its admissibility. Also by a simple majority, if the Plenary admits the impeachment process, the actual procedure will begin, with the precautionary removal of the minister for up to 180 days.
It cannot be forgotten that the accused minister has the right to present a written defense and to be heard during the proceedings. The right to adversarial proceedings and full defense must be fully guaranteed.
Once the investigation is concluded, the case is brought to trial in the Senate plenary. It is worth noting that the quorum required for approval of impeachment is two-thirds of the senators. If impeachment is approved, the minister is immediately removed from office and may be disqualified from holding public office for up to five years.
There is no doubt that criminal liability is an essential tool to ensure that Supreme Court justices perform their duties with integrity and impartiality. The possibility of impeachment serves as a check and balance mechanism, ensuring that the Judiciary acts within constitutional and legal limits, preserving public confidence in the judicial system.
However, we must be very careful that it does not serve as a mechanism to attack political opponents or even Supreme Court justices who have different legal positions. Let's hope that senators have the wisdom not to create unprecedented institutional instability in the country.
We must not forget that the processes of democratic rupture invariably begin with the weakening of the Judiciary, as occurred in Hungary with the dictator Prime Minister Viktor Orbán, who is one of the great bastions of the extreme right. Viktor Orbán showed the way, destroying the independence of the Constitutional Court to establish his “illiberal democracy” and increased the number of seats in the Hungarian Supreme Court from 11 to 15 judges, appointing the four new positions with allied judges.
In addition, he also approved mechanisms to force the retirement of the Court’s most senior judges, with the clear purpose of getting rid of those who were not aligned with his conservative positions. With these and other measures, Viktor Orbán has weakened the Hungarian judiciary, altering the balance between the three powers.
The similarities between the actions carried out by the Hungarian dictator, aiming to weaken the supreme court of that country, and the main causes defended by Bolsonaro supporters, are not mere coincidences, but methods for democratic rupture.
*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.
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