Judicial Independence Is Not Judicial Impunity: From Brazil’s CNJ to Washington State Courts
A comparative warning to Washington State foreclosure courts, where procedural gatekeeping become denial of jurisdiction, denial of due process, and denial of justice.
Disciplinary Review judged granted to apply to the Magistrate the penalty of compulsory retirement, with salary payments proportional to length of service.
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DECISION
National Council of Justice
Office of Council Member Pablo Coutinho Barreto
Case Records:
DISCIPLINARY REVIEW - 0005100-28.2021.2.00.0000
Applicant:
NATIONAL COUNCIL OF JUSTICE - CNJ
Respondent:
COURT OF JUSTICE OF THE STATE OF ALAGOAS - TJAL and others
Rapporteur
PABLO COUTINHO BARRETO
HEADNOTE: DISCIPLINARY REVIEW. COURT OF JUSTICE OF THE STATE OF ALAGOAS (TJAL). DECISION CONTRARY TO THE EVIDENCE IN THE RECORDS. ART. 83, I, INTERNAL RULES OF THE CNJ. APPLICATION OF THE PENALTY OF WARNING. MAGISTRATE WHO FRAUDULENTLY ALTERED, IN THE PROCEDURAL SYSTEM, TWICE, A DECISION OF ANOTHER JUDGE, IN A CASE IN WHICH HIS SON ACTED AS ATTORNEY. GRAVITY OF THE CONDUCT IMPUTED TO THE RESPONDENT JUDGE. REEXAMINATION OF THE ORIGINAL PROCEEDING. NEED TO MODIFY THE PENALTY APPLIED. VIOLATION OF ARTS. 35, I AND VIII, OF THE LOMAN, AS WELL AS ARTS. 1, 4, AND 37 OF THE CODE OF ETHICS OF THE NATIONAL JUDICIARY.
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Magistrate who altered, twice, a decision drafted by another judge, holder of a judicial unit different from the one in which the respondent exercised jurisdiction, in a case in which his son acted as attorney case No. 0003845-60.2010.8.02.0001.
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The evidence produced left no doubt that the alterations to the decision were registered under registration number M655414, belonging to the respondent.
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The gravity of the disciplinary infraction committed and the history of functional misconduct indicate that the penalty of warning was not rendered in harmony with the evidentiary set produced in the records of the disciplinary proceeding at origin, since it appears excessively lenient and disproportionate in relation to the evidence presented.
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Weighed the high degree of reprehensibility of the conduct, the resulting damages, the pedagogical character of the penalty and the effectiveness of the punitive measure, as well as the principles of proportionality and reasonableness, it follows, as a consequence, the need to alter the penalty of warning to compulsory retirement of the respondent herein, by virtue of the precepts contained in arts. 35, I and VIII, of the LOMAN, as well as in arts. 1, 4, and 37 of the Code of Ethics of the National Judiciary.
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Disciplinary Review judged granted to apply to the Magistrate the penalty of compulsory retirement, with salary payments proportional to length of service.
JUDGMENT
The Council, unanimously, judged the disciplinary review granted to apply to the magistrate the penalty of compulsory retirement, with retirement benefits proportional to length of service, pursuant to the vote of the Rapporteur. Absent, due to vacancies in the offices, were the representatives of the Brazilian Bar Association. Minister Luís Roberto Barroso presided over the judgment. Plenary, June 11, 2024. Present at the session were the Most Excellent Council Members Luís Roberto Barroso, Luis Felipe Salomão, Caputo Bastos, José Rotondano, Mônica Autran Machado Nobre, Alexandre Teixeira, Renata Gil, Daniela Madeira, Guilherme Feliciano, Pablo Coutinho Barreto, João Paulo Schoucair, Daiane Nogueira de Lira and Luiz Fernando Bandeira de Mello. Oral arguments were presented by: Deputy Prosecutor-General of the Republic José Adonis Callou de Araújo Sá; and, for the Respondent, Attorney Samara de Oliveira Santos Léda - OAB/DF 23.867.
National Council of Justice
Office of Council Member Pablo Coutinho Barreto
Case Records: DISCIPLINARY REVIEW - 0005100-28.2021.2.00.0000
Applicant: NATIONAL COUNCIL OF JUSTICE - CNJ
Respondent: COURT OF JUSTICE OF THE STATE OF ALAGOAS - TJAL and others
REPORT
COUNCIL MEMBER PABLO COUTINHO BARRETO — Rapporteur:
This is a Disciplinary Review instituted ex officio, pursuant to the decision reported by Minister Maria Thereza de Assis Moura Id. 4409553, then National Inspector of Justice, rendered in the records of PP No. 0003636-37.2019.2.00.0000, for reexamination of a judgment of the Court of Justice of the State of Alagoas TJAL that determined the application of the penalty of warning in Administrative Disciplinary Proceeding No. 0500018-44.2019.8.02.0073, instituted against Judge Jorge Melro Cansanção.
At origin, a possible alteration of the sanction applied to the Judge was investigated, considering that the respondent altered a draft interlocutory decision that would come to be rendered in the records of Case No. 0003845-60.2010.8.02.0001, in which his son acted as attorney, pending before the 21st Civil Court of the District of Maceió, without due legal or regulatory authorization, since he was the Presiding Judge of the 13th Civil Court of the District and, in the month in which the modifications to the draft occurred, acted as legal substitute of the 1st Civil Court.
The then rapporteur of the case, Council Member Candice Lavocat Galvão Jobim, ordered the TJAL to be notified to add to the records a full copy of Administrative Disciplinary Proceeding 0500018-44.2019.8.02.0073 Id. 4418791; access link Id. 4468547.
Thereafter, the Magistrate was notified to present a defense Id. 4469389.
On 10/05/2021, the respondent submitted a manifestation in the records, in which he requested the shelving of the Proceeding Id. 4502228.
The case was redistributed to the rapporteurship of the representative of the MPU on 12/09/2021 and, in continuation of the evidentiary phase of the case, the notification of the Most Excellent Deputy Prosecutor-General of the Republic was ordered, for manifestation, within ten days Id. 4604077.
On 02/24/2022, the records came concluded with a manifestation from the MPF, in which the prosecutorial body informs that it was not successful in accessing the entirety of the records through the link provided by the TJAL.
On 03/18/2022, it was ordered to the Procedural Secretariat of the CNJ that it proceed with the full digitalization of PAD 050001844.2019.8.02.0073, with the attachment of the documents to the records of the present proceeding.
In compliance, the documents were digitalized and attached on 03/21/2022.
On 07/29/2022, the notification of the Most Excellent Deputy Prosecutor-General of the Republic seated in this Court was ordered, for manifestation Id. 4796558.
On 08/24/2022, the MPF submitted final arguments, in which it requested that the disciplinary review be granted, with application of the penalty of availability with salary payments proportional to the Magistrate, in verbis:
Disciplinary Review. Magistrate.
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Disciplinary review instituted ex officio for reexamination of the judgment rendered by the Court of Justice of the State of Alagoas in the records of Administrative Disciplinary Proceeding No. 0500018-44.2019.8.02.0073, which applied the penalty of censure to Judge of Law Pedro Jorge Melro Cansanção, holder of the 13th Civil Court of Maceió/AL.
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Imputation of unauthorized alteration of a draft judicial decision rendered by another magistrate, making necessary the opening of a review proceeding for analysis of a possible adequacy of the disciplinary sanction, pursuant to art. 83, item I, of the RICNJ. 2. Deviation from the duty to comply exactly with legal provisions and official acts, impartiality, prudence, professional integrity, dignity, decorum and independence, listed in art. 35, I and VIII, of the LOMAN and in arts. 1, 4 and 37 of the Code of Ethics of the National Judiciary.
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Contrariety to the law or to the evidence in the records characterized, as to the penalty applied, in view of the context brought and the gravity of the conduct perpetrated.
Manifestation for the granting of the disciplinary review, recognizing the need to impose the sanction of availability with salary payments proportional to Judge of Law Pedro Jorge Melro Cansanção Id. 4839449 emphasis added.
Furthermore, in compliance with the provisions of art. 87, sole paragraph, of the Internal Rules of the National Council of Justice RICNJ[1], the notification of the respondent for final arguments, within 10 days, was ordered.
On 10/05/2023, the Magistrate submitted his final arguments, in which he preliminarily raises the nonexistence of a new fact to ground the disciplinary review; and on the merits repeats the arguments initially presented in the records of PP 0003636-37.2019.2.00.0000, in the sense that the filing of the present one has appellate features, and that any application of a more serious disciplinary sanction would result in bis in idem, since the decision rendered by the TJAL would be well founded and would have complied with all required legal precepts.
At the end, he requested the shelving of the case or, subsidiarily, that the statute of limitations of the punitive claim be declared, on the argument that in the case of the penalty of warning, the prescriptive period to be used would be 180 one hundred and eighty days.
This is the report.
[1] Art. 87. [...] Sole paragraph. Once the evidentiary phase is concluded, the Prosecutor-General of the Republic and the accused magistrate or his defender shall have access to the records for ten days, for arguments.
National Council of Justice
Office of Council Member Pablo Coutinho Barreto
Case Records: DISCIPLINARY REVIEW - 0005100-28.2021.2.00.0000
Applicant: NATIONAL COUNCIL OF JUSTICE - CNJ
Respondent: COURT OF JUSTICE OF THE STATE OF ALAGOAS - TJAL and others
VOTE
COUNCIL MEMBER PABLO COUTINHO BARRETO — Rapporteur:
This concerns, as briefly reported, a Disciplinary Review instituted ex officio, pursuant to the decision rendered in the records of PP No. 0003636-37.2019.2.00.0000, for reexamination of a judgment of the Court of Justice of the State of Alagoas TJAL that determined the application of the penalty of warning in Administrative Disciplinary Proceeding No. 0500018-44.2019.8.02.0073, according to the headnote transcribed below:
REQUEST FOR MEASURES. ART. 28 OF CNJ RESOLUTION NO. 135/2011. PAD AT ORIGIN. APPLICATION OF THE PENALTY OF WARNING. GRAVITY OF THE CONDUCT IMPUTED TO THE RESPONDENT JUDGE. REEXAMINATION OF THE ORIGINAL PROCEEDING. INSTITUTION OF REVIEW OF DISCIPLINARY PROCEEDING AT THE CNJ. VERIFICATION OF THE NEED TO MODIFY THE PENALTY APPLIED.
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Pursuant to art. 28 of CNJ Resolution No. 135/2011, the courts shall communicate to the National Inspectorate of Justice the decisions of shelving of preliminary investigation procedures, of institution and the judgments of administrative disciplinary proceedings concerning the magistrates linked to them, with the exception of the Federal Supreme Court.
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The institution of a request for measures before the national censoring body was determined by virtue of the communication of the Court of Justice of the State of Alagoas, whose Full Court applied the penalty of warning to the respondent judge — Case No. 0500018-44.2019.8.02.0073.
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In the species, it emerges from the evidentiary framework attached to the records that the magistrate altered, twice, a decision drafted by another judge, holder in a judicial unit different from the one in which the respondent is assigned, in a case in which his son acted as attorney.
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The investigation at origin concluded for the subsumption of the conduct to art. 35, I and VIII, of the LOMAN and to arts. 1, 4 and 37 of the Code of Ethics of the National Judiciary, applying the penalty of warning.
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The decision rendered by the local censoring body presents a possible inadequacy of the sanction, in view of the factual-evidentiary context ventilated in the records and given the functional history of the judge, persistent in the breach of his duties, and it must be weighed whether the measure imposed appears adequate and proportional, in addition to sufficient to repress the functional misconduct and curb similar attitudes.
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Conclusion for the institution, ex officio, of Disciplinary Review to verify the need to modify the penalty applied to the respondent judge article 83, item I, of the RICNJ, pursuant to arts. 82 and 86 of the RICNJ.
CNJ - PP - Request for Measures - Inspectorate - 0003636-37.2019.2.00.0000 - Rel. MARIA THEREZA DE ASSIS MOURA - 334th Ordinary Session - judged on 06/29/2021. emphasis added.
I) ON DECADENCE
Initially, it is verified that the present Disciplinary Review was proposed within the one-year period provided in art. 82 of the RINCJ[1].
In the case sub examinem, Administrative Disciplinary Proceeding No. 0500018-44.2019.8.02.0073 was judged by the Full Court of the Court of Justice of the State of Alagoas in the session held on 07/28/2020, with publication of the judgment in the Official Gazette on 08/05/2020 and communication of the result to the National Inspectorate of Justice on 08/19/2020 Id. 4651875, pp. 37, 41 and 42.
The judgment rendered in the records of PP 0003636-37.2019.2.00.0000, which gave rise to the present disciplinary review, was rendered on 06/29/2021, therefore within the one-year period provided for the review proceeding.
II) ON PRESCRIPTION
In the absence of an express rule in the LOMAN, the prescription of the punitive claim is governed by CNJ Resolution No. 135/2011, with subsidiary application of the provisions of Law No. 8.112/1990.
Art. 24 of CNJ Resolution No. 135/2011 provides that the prescription period shall be five years and § 1[1], in turn, provides that its interruption shall occur with the determination by the Plenary of the institution of the PAD, initiating the new count on the 141st day after the date of said decision.
In the hypothesis of the records, the institution of PAD No. 0500018-44.2019.8.02.0073, at origin, occurred on 05/08/2019 Id. 4651873, p. 59; and the count of the prescriptive period began to run from the 141st, namely, the day 09/26/2019, reason for which the five-year prescription would only occur on 09/25/2024, if the conduct of the Magistrate did not configure a criminal type.
Even though there was no mention of the occurrence of a crime in the decision now under review, the jurisprudence of this Council understands that “the period for assessment of prescription will no longer be the administrative one, but rather the one provided in the Criminal Code, even if there is no criminal action in course and even if the criminal prescription has a shorter period than that provided for the administrative penalties,” as can be read from the entirety of the headnote of the paradigm judgment:
DISCIPLINARY REVIEW. COURT OF JUSTICE [...]. SHELVING OF ADMINISTRATIVE DISCIPLINARY PROCEEDING CONDUCTED AT ORIGIN. CONTRARIETY TO THE EVIDENCE IN THE RECORDS. INSTITUTION OF REVIEW EX OFFICIO BY THE CNJ. CONDUCT THAT QUALIFIES, IN THEORY, AS SEXUAL HARASSMENT. COUNTING OF THE PRESCRIPTIVE PERIOD ACCORDING TO THE CRIMINAL CODE. OFFENSE THAT PRESCRIBES IN 4 YEARS ART. 109, V, OF THE CRIMINAL CODE. PRESCRIPTION OF THE PUNITIVE CLAIM. OCCURRENCE. EXTINCTION OF PUNISHABILITY.
- Disciplinary review instituted ex officio by the CNJ, by reason of the decision of the Court of Justice [...], which acquitted the magistrate, having been considered contrary to the evidence in the records art. 83, I, RICNJ.
[...]
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Configured, however, a criminal type, the period for assessment of prescription will no longer be the administrative one, but rather the one provided in the Criminal Code, even if there is no criminal action in course and even if the criminal prescription has a shorter period than that provided for the administrative penalties. Exegesis of article 24 of Resolution 135/2011. Impossibility for the interpreter to create a restriction where the norm did not distinguish, to proceed with only partial application of the law or to proceed with the combination of diverse normative diplomas, all to the detriment of the accused. Principles of legality and of favor rei. Precedents.
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In casu, the administrative infraction imputed to the applicant was qualified by the CNJ itself, in theory, as sexual harassment, which attracts the incidence of the criminal prescriptive period, which is 4 years art. 216-A, combined with art. 109, V, of the Criminal Code.
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As the count of the prescriptive period began on 6/16/2016 141st day after the opening of the PAD, prescription was consummated on 6/16/2020 4 years later, when this review was still in the evidentiary phase, since it was instituted only on 10/18/2019.
[...]
CNJ - REVDIS - Disciplinary Review Proceeding - Council Member - 0008261-17.2019.2.00.0000 - Rel. MÁRIO GUERREIRO - 333rd Ordinary Session - judged on 06/15/2021. Our emphasis.
As will be seen, the conduct of the Judge may characterize the crime of insertion of false data in an information system, provided in art. 313-A of the Criminal Code[2], with the possibility of imposition of a custodial sentence that may vary between 2 to 12 years and a fine.
In this circumstance, the prescriptive period by the penalty in abstract is provided in art. 109, I, of the Criminal Code, which establishes 20 years if the maximum penalty is greater than 12 years[3].
Therefore, there is no prescription to speak of.
III – ON THE MERITS
Initially, it is emphasized that the Disciplinary Review procedure, unlike the other appeals properly so called, is not intended for factual reappraisal or for the return of the matter analyzed by the Court of origin.
Pursuant to art. 83 of the RICNJ[4], the review procedure is restricted to hypotheses of contrariety of the decision rendered by the Court to express text of law, to the evidence in the records or to a normative act of this Council; illegality of the evidence; or the emergence of new evidence that authorizes modification of the decision, as concluded from the following headnote:
DISCIPLINARY REVIEW. TJAL. ADMINISTRATIVE DISCIPLINARY PROCEEDING. JUDGE OF LAW. INDICATION OF A LAW FIRM IN WHICH HE KNEW HIS OWN SON WORKED AS ATTORNEY. GRANTING OF INJUNCTION TO THE BENEFIT OF THE PARTY TO WHOM HE INDICATED THE ATTORNEY. CLEAR NONOBSERVANCE OF THE RULE OF IMPEDIMENT CPC, ART. 144, III AND § 3. PENALTY OF WARNING. INADEQUACY. HYPOTHESIS OF DECISION CONTRARY TO THE EVIDENCE IN THE RECORDS AND TO THE CURRENT NORMATIVE PARAMETERS. CORRECT GRADATION OF THE SANCTION. KNOWLEDGE AND GRANTING OF THE REVIEW REQUEST. APPLICATION OF THE PENALTY OF COMPULSORY RETIREMENT.
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The Disciplinary Review RevDis admits knowledge whenever the constitutional period for its filing has been fulfilled and, in theory, one of the hypotheses provided in art. 83 of the RICNJ has been indicated.
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In the judgment of RevDis, deliberation must occur under the focus of the strict hypotheses of admissibility.
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Review request grounded in art. 83, I, of the Internal Rules of the National Council of Justice RICNJ, since the decision subject to review was rendered in flagrant dissociation from the evidence in the records and from the governing legislation.
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Judgment of the TJAL that applied the penalty of warning to a magistrate who had attended a meeting “alone” with a person interested in the rendering of a judicial decision in his favor, and then acted in the judicial proceeding in which he should have declared himself manifestly impeded and granted an injunction to the benefit of the plaintiff business company, to which he indicated the firm that had his own son among its attorneys.
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Article 144, item III and § 3, of the Code of Civil Procedure, whose soundness and compatibility with the Federal Constitution are preserved, despite ADI 5953/DF, prescribes, with rare clarity, the impediment of the magistrate in proceedings in which his spouse or companion, or any relative, by blood or affinity, in direct or collateral line, up to the third degree, inclusive, acts as attorney, even when the mandate is granted to a member of a law firm that has among its attorneys an attorney who individually bears one of those conditions and does not intervene directly in the proceeding, a fact aggravated, in the concrete case, by the conscious indication of the firm that the magistrate knew had his own son among its attorneys.
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Manifestation of the Federal Public Prosecutor’s Office for the granting of the RevDis with application of the penalty of compulsory retirement to the magistrate.
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Disciplinary Review known and judged granted. Application of the penalty of compulsory retirement.
CNJ - REVDIS - Disciplinary Review Proceeding - Council Member - 0001859-75.2023.2.00.0000 - Rel. MARCELLO TERTO - 4th Ordinary Session of 2024 - judged on 04/02/2024.
In the case under examination, it was proven in the records of Administrative Disciplinary Proceeding PAD No. 0500018-44.2019.8.02.0073 brought by the TJAL against the magistrate, that the respondent altered a draft interlocutory decision that would come to be rendered in the records of Case No. 0003845-60.2010.8.02.0001, in which his son acted as attorney, without due legal or regulatory authorization.
Once the investigation in the records of the administrative disciplinary proceeding was concluded, the members of the Court of Justice of the State of Alagoas decided for the application of the penalty of warning to the magistrate, according to the following headnote, in verbis:
ADMINISTRATIVE DISCIPLINARY PROCEEDING. ALTERATION, BY THE RESPONDENT MAGISTRATE, OF A DRAFT DECISION PREPARED IN A CASE THAT WAS PROCEEDING BEFORE A COURT DIFFERENT FROM HIS OWN PRESIDENCY, LEGAL SUBSTITUTION OR SPECIFIC DESIGNATION, AND IN WHICH HIS SON ACTED AS ATTORNEY. AUDIT CARRIED OUT IN THE ELECTRONIC CASE SYSTEM. FUNCTIONAL MISCONDUCT FOUND. VIOLATION OF THE DUTIES PROVIDED IN ART. 5, I AND VIII, OF THE ORGANIC LAW OF THE NATIONAL JUDICIARY LOMAN, AND IN ARTICLES 1, 4 AND 37 OF THE CODE OF ETHICS OF THE NATIONAL JUDICIARY. PENALTY OF WARNING APPLIED, PURSUANT TO ART. 44 OF THE LOMAN, AS THE MEASURE MOST CONSISTENT WITH THE PRINCIPLES OF PROPORTIONALITY AND REASONABLENESS. DECISION PURSUANT TO THE SOLE PARAGRAPH OF ART. 21 OF CNJ RESOLUTION NO. 135/2011.
1 - Once a technical audit was carried out in the electronic case system, it was verified, upon consultation of the file manager of case No. 0003845-60.2010.8.02.0001, pending before the Court of Law of the 21st Civil Court of the Capital, the existence of an interlocutory decision, created on 05.10.2017, at 11 hours 56 minutes and 47 seconds, by user M905046, altered on 05.10.2017, at 15 hours 56 minutes and 54 seconds, and 05.15.2017, at 13 hours 55 minutes and 22 seconds, by user M655414, who had no assignment in said jurisdictional unit. Moreover, according to the oral evidence collected in the administrative inquiry phase and during the administrative disciplinary proceeding, there was, in fact, a change in the content and in the legal understanding established in the draft decision.
2 - As to the authorship of the irregular alterations, the records leave no doubt, above all due to the information provided by the Adjunct Directorate of Information Technology DIATI and by Softplan, managing unit of the digital case system, that the alterations in the draft of the decision that would be rendered, whether the modification that occurred on 05.10.2017 or that of 05.15.2017, were registered under registration number M655414, belonging to magistrate Pedro Jorge Melro Cansanção. Furthermore, still based on the data provided by DIATI, the unauthorized modifications in the draft decision were implemented on the machine with IP No. 172.16.169.171, desktop type, registered in the name of the judge now prosecuted, there being no other computer with the same IP in the computer network of the Court of Justice of the State of Alagoas. It is further inferred that the same machine IP No. 172.16.169.171 that was used by magistrate Pedro Jorge Melro Cansanção M644514 for the practice of official acts, with insertion of his token, in the 13th Criminal Court of the Capital, was also used for the irregular alteration of the draft decision that would be rendered in the records of action No. 0003845-60.2010.8.02.0001, pending before the 21st Civil Court of the Capital, and this only 08 eight minutes after the practice of a regular official act, making remote the possibility that a third party had taken advantage of a moment of carelessness of the magistrate to alter the content of the decision. Indeed, it is gathered from the records that the son of the respondent, Pedro Jorge Melro Cansanção Filho, acted as attorney in the case in which there was the modification of the draft, in addition to the prosecuted magistrate himself having stated at the hearing that “the case involved the CRB field” and that the litigating parties are personal friends of his family.
3 - Therefore, for having altered, on 05.10.2017, at 15 hours 56 minutes and 54 seconds, and 05.15.2017, at 13 hours 55 minutes and 22 seconds, without legal or regulatory authorization, a draft decision prepared in the records of case No. 0003845-60.2010.8.02.0001, pending before a Court different from his own presidency, legal substitution or specific designation and in which his son acted as attorney, magistrate Pedro Jorge Melro Cansanção violated the duties prescribed in art. 5, I and VIII, of the LOMAN, and in articles 1, 4 and 37 of the Code of Ethics of the National Judiciary.
4 - Regarding the functional reprimand, comparing the disciplinary penalties provided by law with the facts that culminated in the administrative accountability of the magistrate, it is seen that the warning, applicable in cases of negligence in the fulfillment of the duties of the office art. 43 of the LOMAN, presents itself as the sanction most in tune with the contours delineated by the principles of proportionality and reasonableness. Although the decision was not rendered in the terms resulting from the alteration irregularly carried out, since, as appears from the records, the legal substitute magistrate of the Court of the 21st Civil Court of the Capital noticed the modification and rendered the decision according to his free conviction, the fact is that such circumstance, although irrelevant for purposes of configuration of functional misconduct, must be taken into account for purposes of identification of the adequate penalty. The change in the wording of the draft, notwithstanding that it represents a serious offense to the duties of the judiciary prescribed in art. 5, I and VIII, of the LOMAN, and in articles 1, 4 and 37 of the Code of Ethics of the National Judiciary, did not cause damage to the parties of case No. 0003845-60.2010.8.02.0001, so that, for purposes of application of the adequate penalty, the more severe ones, such as censure, compulsory removal, availability, compulsory retirement and dismissal, must be set aside, and it is required, because the case concerns negligence in the fulfillment of the duties of the office, the application of warning.
5 - By majority vote, functional misconduct recognized, for violation of the duties prescribed in art. 5, I and VIII, of the LOMAN, and in articles 1, 4 and 37 of the Code of Ethics of the National Judiciary, and the penalty of warning applied, pursuant to art. 43 of the LOMAN. 6 - Result of the judgment for the application of the penalty of WARNING, pursuant to art. 21, sole paragraph, of CNJ Resolution No. 135/2011 Id. 4651875, p. 8. emphasis added.
From what was ascertained in the disciplinary case at origin, therefore, the following facts are revealed to be uncontroversial:
I. There was, in fact, a change in the content and in the legal understanding established in the draft of the original decision rendered in the records of case No. 0003845-60.2010.8.02.0001 by an unauthorized user and without assignment in the respective jurisdictional unit Id. 4651283, p. 4; ID. 4409946, p. 3;
II. According to evidence produced by the Adjunct Directorate of Information Technology DIATI and by Softplan, managing unit of the digital case system, the alterations produced in the draft of the decision that would be rendered were registered under registration number M655414, belonging to Magistrate Pedro Jorge Melro Cansanção Id. 4409946, p. 3; Id. 4651286, pp. 4-10; and
III. The son of the respondent, Pedro Jorge Melro Cansanção Filho, acted as attorney in the case in which there was the modification of the draft, in addition to the prosecuted Magistrate himself having stated at a hearing that “[...] the case involved the CRB field [...]” and that the litigating parties are personal friends of his family.” Id. 4651875, p. 9.
From a communication sent by magistrate João Dirceu Soares de Moraes to the Adjunct Directorate of Information Technology Diati, he reported the editing of a draft decision, in the records of judicial inventory No. 0003845-60.2010.8.02.0001, pending before the 21st Civil Court of the Capital, by a user without authorization and assignment in the jurisdictional unit, on which occasion he requested measures from the Coordinator of the Judiciary Automation System - SAJ Ids 4651696, p. 3; 4651872, p. 14.
There was, then, the carrying out of an internal audit by Diati that allegedly indicated that the interlocutory decision created on 5/10/2017, at 11:56:47, by user M905046, had its last alteration made on 05/15/2017, at 13:57:42, by user M655414, who had no assignment in the court of the case.
Notwithstanding the request for further diligences to the Directorate, it answered that it was not possible to carry out other detailed audits in the documents because they had been deleted from the file manager, which made it impossible to identify which modifications were made in the content of the draft, with emphasis on the following excerpt Id 4651286, pp. 16 and 17:
Next, the administrative inquiry requested the opening of an occurrence with Softplan so that the company would carry out an audit and inform, by means of a conclusive opinion, whether there was an alteration of a draft decision prepared in the records of case 0003845-60.2010, pending before the 21st Civil Court of the District of the capital, by a user not belonging to the jurisdictional unit, as well as, if positive, that all proofs of this alteration obtained from the SAJ system be sent to the General Inspectorate of Justice, even by means of capture of the virtual work environment.
In response to the audit request, Mr. Alexandre Buzanelo, Customer Support Analyst, Justice Unit, Softplan, answered, informing that the document subject to investigation was deleted from the case, as were the blobs of the binaries records that store the rtf of the document in the database, making it impossible to identify which alterations were made in the content of the above-mentioned draft.
He indicated that it is only possible to inform that the operations of inclusion and possibly alterations of document occurred, on 05/10/2017, at distinct moments, by the user with registration number M905046; and that, on 05/10/2017 and on 05/15/2017, there appears a possible alteration of the document by the user with registration number M655414.
He pointed out that alterations in the content of the document are not audited, and while the draft is only saved, it is enough for the user to open the document and click save for a new binary to be generated.
He stated that there is no record of the content of the alteration of the complement of the movements, and that the alterations in the complement of the document by user M655414 do not indicate that there was alteration in the content, since it is possible to alter the complement of the movement without altering the text.
At the end, Mr. Alexandre Buzanelo, Customer Support Analyst, Justice Unit, Softplan, concluded that there is no way to specify whether the content of the document was really altered.
In complement, the same Directorate again confirmed that, from the IP of the computer, it was registered in the name of magistrate Pedro Jorge Melro Cansanção Id 4651286, pp. 23–28.
In the hearing of the judge president of the case, João Dirceu Soares Moraes, still in the inquiry phase, he gave the following testimony, according to excerpts extracted from the vote of PAD No. 0500018-44.2019.8.02.0073, in the relevant part Id. 4651875, p. 19:
[...] this case was being discussed with the advisor; that the draft was not in the queue, because the case was physical; that she opened the case to verify the decision and perceived that there were two topics that were included and she stated that she had not made that alteration, when she pulled it through the system and saw that that registration number was not hers and also checked with the other clerks and saw that it was also not from anyone in the registry office; that immediately she took the phone and called Magno asking whether this was possible, when he stated that the magistrate should narrate the fact by official letter [...] that afterwards the magistrate made the necessary modifications, signed and sent the draft according to his understanding; that there was initially a draft made by the advisor, that the next day, to finalize it, the final part had been altered, which was not in the initial preparation, that he remembers it was not a sentence, but it was a decision, not remembering whether it was a denial or granting, that, if he is not mistaken, the alteration consisted of requiring that an adjudication letter not be made; that in the original text it was that it should be made;
And there was also the testimony of the advisor of magistrate João Dirceu, Larissa Izabel Leite Souza, in the following sense Id. 4651875, pp. 19-20:
That Dr. João Dirceu asked her to make the draft of the case according to the determinations passed; when she finished making it, she was going to pass it to Dr. João Dirceu afterwards; when she opened it to be able to print it, she verified that it had been altered; that she asked the magistrate whether he had made the alteration or had requested someone to do it; that she verified that he was surprised that there had been modification of the text; that normally the deponent makes the decision by topics and verified that some of them had been altered, including the content itself; that she does not remember but that it was a decision on Motions for Clarification; that an official letter was sent by the magistrate; that she finished the draft at the end of the afternoon; that she perceived the alteration on the following day. Testimony given in administrative inquiry by advisor Larissa Izabel Leite Souza fl. 8061.
It must be emphasized that the draft in question was being prepared in inventory case No. 0003845-60.2010.8.02.0001, as stated, in which the son of the magistrate acted as attorney until the date of 7/15/2013 Id 4651696, pp. 14, 23; Id 4651698, pp. 22–28; Id 4651699, pp. 3, 5; Id 4651708, pp. 8-11.
As explained in the original judgment, the alteration of the draft irregularly carried out by the respondent was only not confirmed in the sense that it would benefit the son of the revision applicant because the advisor of the 21st Civil Court of the Capital detected the modification before signature of the act by the judge, and issued a new decision according to his conviction, ad litteris:
[...] although the respondent insists in his defensive pieces that the modification of the draft did not come to generate effects on the legal plane, since the magistrate invested with jurisdiction to render the decision rectified the alteration that occurred and caused a decision to be published in accordance with his legal understanding, it is certain that this intellectual line does not have the effect of excluding the configuration of functional misconduct and the corresponding sanction.
This is because, even though there was no publication of the decision in the terms resulting from the irregular alteration in the draft situation which, if verified, would bring incontestable losses to the parties, one cannot disregard the fact that the object of investigation, in the present disciplinary proceeding, is the interference of the prosecuted magistrate in the jurisdictional activity of another member of the judiciary, in disregard of the normative precepts inserted in Complementary Law No. 35/79 Organic Law of the National Judiciary LOMAN and in CNJ Resolution No. 60/2008 Code of Ethics of the National Judiciary Id. 4651875, p. 8. emphasis added.
In view of the inexistence of controversy regarding the facts exhaustively ascertained in the disciplinary proceeding at origin, which demonstrate, let it be repeated, unequivocal improper alteration carried out by the respondent, in a case that had been sponsored by his son, there remains only the examination regarding the adequacy of the penalty of warning applied by the TJAL.
The gravity of the disciplinary infraction committed and the history of functional misconduct of the magistrate indicate that the penalty of warning was not rendered in harmony with the evidentiary set produced in the records of the PAD at origin, because it is excessively lenient and disproportionate in relation to the evidence presented.
In the same sense, the conclusion of the original judgment in the sense that the conducts of the respondent violated articles 5, I and VIII, of the LOMAN; and 1, 4 and 37 of the Code of Ethics of the National Judiciary also evidence the inadequacy of the penalty of warning applied.
In this regard, the jurisprudence of the CNJ is reiterated, in the sense that disciplinary reviews have as their premise the flagrant dissociation between the evidentiary set and the judgment carried out by the Court, pursuant to art. 83, item I, of the RICNJ, in verbis:
DISCIPLINARY REVIEW. COURT OF JUSTICE OF THE STATE OF MATO GROSSO DO SUL. DECISION OF SHELVING OF REQUEST FOR MEASURES PRESENTED AGAINST A MAGISTRATE. EXISTENCE OF INDICATIONS OF DISCIPLINARY INFRACTION. CONTRARIETY TO THE EVIDENCE IN THE RECORDS. GRANTING. INSTITUTION OF ADMINISTRATIVE DISCIPLINARY PROCEEDING.
I – The Disciplinary Review admits knowledge whenever the constitutional period for the proposition is fulfilled and, in theory, one of the hypotheses provided in art. 83 of the Internal Rules of the National Council of Justice RICNJ is indicated, conditions specifically met in the proceeding under examination.
II – The CNJ understands that, in the judgment of disciplinary reviews, the correctness or not of the original deliberation should not be investigated from the resumption of the discussion itself, but that it should be processed only to verify the strict hypotheses of admissibility which, in this case, was restricted to item I of art. 83, which has as its premise the flagrant dissociation between the evidentiary set and the judgment carried out by the Court, a situation found in the present proceeding.
III – The Plenary of the CNJ has a settled understanding on the formal admissibility of RevDis to a decision taken in a disciplinary proceeding preparatory to the institution of an administrative disciplinary proceeding, reason why there is no reformatio in pejus to speak of.
IV – The supervenience of a magistrate’s retirement does not entail the loss of object of the disciplinary proceeding in course. Precedents.
V – Advancing to the merits, a flagrant dissociation is found between the evidentiary set and the judgment carried out by the Court of origin.
VI – Disciplinary Review judged granted to determine the deconstitution of the decision rendered by the Full Court of the Court of Justice of the State of Mato Grosso do Sul and the institution of the competent administrative disciplinary proceeding, without precautionary removal, against the respondent Magistrate, which must proceed within the scope of that Court of Justice, pursuant to the approved Ordinance. CNJ - REVDIS - Disciplinary Review Proceeding - Council Member - 0007912-43.2021.2.00.0000 - Rel. GIOVANNI OLSSON - 6th Ordinary Session of 2023 - judged on 04/25/2023. emphasis added.
It should also be noted that the conduct of the Magistrate may be framed, in theory, in the criminal type provided in art. 313-A of the Criminal Code CP[5], which, by itself, demonstrates the dissociation of the penalty of warning that was applied to him in relation to the evidentiary set collected in the records of PAD No. 05000018-44.2019.8.02.0073.
In an analogous situation, the Plenary of this Council applied the penalty of compulsory retirement to a Judge of Appeals who had committed disciplinary infractions also classified as crimes:
ADMINISTRATIVE DISCIPLINARY PROCEEDING. COURT OF JUSTICE OF THE STATE OF TOCANTINS TJTO. ACTION OF A JUDGE OF APPEALS WITH THE OBJECTIVE OF BENEFITING A GROUP OF ATTORNEYS. RECEIPT OF UNDUE ADVANTAGE ARISING FROM THE RENDERING OF DECISIONS. MONEY LAUNDERING. VIOLATION OF ART. 35, I AND VIII, OF COMPLEMENTARY LAW NO. 35/1979 LOMAN AND OF ARTS. 1, 4, 5, 8, 15, 16 AND 37 OF THE CODE OF ETHICS OF THE NATIONAL JUDICIARY.
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The set of evidence brought to the records indicates the constitution of a well-structured criminal organization with clear division of tasks, so that the Magistrate, availing himself of the office he occupies before the TJTO, personally articulated the practice of illicit actions, through which he negotiated and intermediated “the sale” of judicial decisions.
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It became evident during the evidentiary phase that many of the decisions rendered by the respondent were, in fact, negotiated with attorneys and third parties, against payment in cash and assets acquired in a disguised manner.
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The related contracts, contractual amendments, receipts and substitutions of attorney-in-fact prove that the old credits of attorney fees due were repeatedly used to justify the receipt of undue advantages.
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Conclusive proof of money laundering arising from negotiations carried out between the Judge of Appeals and the others involved, in order to conceal and disguise the illicit origin and the movements of money resulting from the crimes of active and passive corruption.
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It was also found that there was correspondence between several judicial decisions rendered by the Magistrate and illicit financial movements perpetrated in the context of procedural maneuvers intended to favor companies and attorneys linked to him.
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The modus operandi articulated by the Judge of Appeals also consisted in the indication of law firms, with the respective request for the so-called “loans” and other advantages, to benefit groups of attorneys and favor the interests of their clients.
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As follows from the provisions of art. 35, I and VIII, of LC 35/1979 Loman, it is the duty of the Magistrate to comply, with independence, with legal provisions and official acts, as well as to maintain irreproachable conduct in public and private life.
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The Code of Ethics of the National Judiciary, in turn, provides that the exercise of the Judiciary must be guided by the principles of independence, impartiality, transparency, prudence, diligence, professional and personal integrity, dignity, honor and decorum.
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Weighed the degree of reprehensibility of the conduct, the resulting damages, the pedagogical character of the exercise of disciplinary power and the effectiveness of the punitive measure, as well as the principles of proportionality and reasonableness, it is imposed, consequently, the application of the penalty of compulsory retirement to the Magistrate, by virtue of the precepts contained in arts. 35, I and VIII, of the LOMAN, as well as in arts. 1, 4, 5, 8, 15, 16 and 37 of the Code of Ethics of the National Judiciary.
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Administrative Disciplinary Proceeding judged granted to apply to the Magistrate the penalty of compulsory retirement, with retirement benefits proportional to length of service.
CNJ - PAD - Administrative Disciplinary Proceeding - 0006303-59.2020.2.00.0000 - Rel. SIDNEY MADRUGA - 9th Ordinary Session of 2023 - judged on 06/06/2023.
As provided in art. 35, I and VIII, of Complementary Law No. 35/1979 LOMAN, it is the duty of the Magistrate to comply, with independence, with legal provisions and official acts, as well as to maintain irreproachable conduct in public and private life[4].
The Code of Ethics of the National Judiciary, in turn, provides that the exercise of the Judiciary must be guided by the principles of independence, impartiality, transparency, prudence, diligence, professional and personal integrity, dignity, honor and decorum[5].
The conduct of the judge proved incompatible with the dignity, honor and decorum of his functions, which justifies the aggravation of the penalty, according to what is prescribed by item II of art. 7 of CNJ Resolution No. 135/2011:
Art. 7 The magistrate shall be compulsorily retired, in the public interest, when:
I - he proves to be manifestly negligent in the fulfillment of his duties;
II - he proceeds in a manner incompatible with the dignity, honor and decorum of his functions;
III - he demonstrates scarce or insufficient work capacity, or presents functional behavior incompatible with the good performance of the activities of the Judiciary.
In this context, weighed the degree of reprehensibility of the conduct, the damages caused to the image of the Judiciary, the pedagogical character of the penalty and the effectiveness of the punitive measure, as well as the principles of proportionality and reasonableness, it is imposed, as a consequence, the need to alter the penalty of warning to compulsory retirement of the Magistrate now respondent, by virtue of the precepts contained in arts. 35, I and VIII, of the LOMAN, as well as in arts. 1, 4, and 37 of the Code of Ethics of the National Judiciary.
IV) OPERATIVE PART
In view of the foregoing, I judge the present Disciplinary Review granted based on art. 83, I, of the RICNJ to apply to Magistrate Pedro Jorge Melro Cansanção the penalty of compulsory retirement, with retirement benefits proportional to length of service, pursuant to the reasoning.
I also determine the forwarding of a copy of this judgment to the Public Prosecutor’s Office of Alagoas MP/AL for investigation of the possible practice of the crime provided in art. 313-A of the Criminal Code CP, as provided in art. 40 of the Code of Criminal Procedure[6] CPP.
Notify the parties.
Afterwards, archive.
Brasília/DF, date registered in the system.
Pablo Coutinho Barreto
Rapporteur Council Member
[1] Art. 24. The prescription period of functional misconduct committed by a magistrate is five years, counted from the date on which the court became aware of the fact, except when it configures a criminal type, in which case the prescriptive period shall be that of the Criminal Code.
§ 1 The interruption of prescription occurs with the decision of the Plenary or of the Special Body that determines the institution of the administrative disciplinary proceeding.
[2] Art. 313-A. To insert or facilitate, the authorized public official, the insertion of false data, to improperly alter or delete correct data in the computerized systems or databases of the Public Administration with the purpose of obtaining undue advantage for oneself or for another or to cause damage:
Penalty – imprisonment, from 2 two to 12 twelve years, and fine.
[3] Art. 109. Prescription, before the final sentence becomes res judicata, except as provided in § 1 of art. 110 of this Code, is regulated by the maximum of the custodial sentence assigned to the crime, being verified:
I - in twenty years, if the maximum of the penalty is greater than twelve;
[4] Art. 83. The review of disciplinary proceedings shall be admitted:
I - when the decision is contrary to express text of the law, to the evidence in the records or to a normative act of the CNJ;
II - when the decision is founded on testimonies, examinations or documents proven to be false;
III - when, after the decision, new facts or new evidence or circumstances arise that determine or authorize modification of the decision rendered by the body of origin.
[5] Insertion of false data in an information system Included by Law No. 9.983, of 2000
Art. 313-A. To insert or facilitate, the authorized public official, the insertion of false data, to improperly alter or delete correct data in the computerized systems or databases of the Public Administration with the purpose of obtaining undue advantage for oneself or for another or to cause damage:
Penalty – imprisonment, from 2 two to 12 twelve years, and fine.
[6] Art. 40. When, in records or papers of which they become aware, judges or courts verify the existence of a crime of public action, they shall send to the Public Prosecutor’s Office the copies and documents necessary for the filing of the criminal complaint.
