The TJ-SP (Court of Justice of São Paulo) opened, this Wednesday (7), a disciplinary administrative proceeding against the substitute judge Marcílio Moreira de Castro, from Araçatuba (SP). The Special Body will examine five decisions of the magistrate and ascertain the reasons that led him to relax flagrantly from the seizure of 133 kilograms of marijuana by the Military Police.
The defense manifestations and the votes of some judges suggest a worsening of the controversy about the independence of the judges and the limits of the internal affairs of the courts.
The judgment made the differences between the TJ-SP and the CNJ (National Council of Justice) more explicit.
At the session of the Special Body on March 31, President Geraldo Francisco Pinheiro Franco’s request for a view postponed the trial to decide on the initiation of disciplinary proceedings.
The president maintains that it is necessary to understand the scope of the decision of the magistrate of Araçatuba, a municipality in the center-west of São Paulo, where “routes of trafficking in cocaine from Bolivia and marijuana originating in Paraguay are inserted”.
He points out that he is on trial for alleged “biased action, in favor of those accused of committing the crime of drug trafficking”.
When asking for a view, Pinheiro Franco said it was necessary “to be well defined if the magistrate’s deliberation has a personal, non-jurisdictional character, within the limits of the law and the understanding of the facts, or if it has another connotation”.
In an oral argument, lawyer Débora Cunha Rodrigues said that to institute disciplinary proceedings would be “to create a dangerous precedent against all São Paulo magistrates, in addition to incurring flagrant illegality, data venia”. According to her, “a conflict of ideas can never violate the guarantees of Loman (Organic Law of the National Judiciary)”.
For the defender, “even though a large amount of narcotics was apprehended in the act of the act, according to the understanding espoused in a very well-grounded decision, there was no well-founded suspicion for the approach that led to the act”.
Rodrigues said that “the magistrate decided according to his legal understanding, supported by functional prerogatives of judicial independence and free conviction”, guaranteed by the Constitution.
The lawyers Igor Sant’Anna Tamasauskas and Pierpaolo Cruz Bottini also participated in the defense of Judge Marcílio Castro.
Corregedor-general Ricardo Anafe had initially written a vote in favor of opening the disciplinary proceedings. As the CNJ judged a similar case on the independence of the magistrates last February, and acquitted the São Paulo judge Roberto Corcioli Filho, Anafe changed his vote. [Por 12 votos a 2 o CNJ anulou a censura aplicada pelo Órgão Especial a Corcioli Filho, então acusado de proferir decisões “com viés ideológico” e “soltar muito”].
In the previous session, the corregidor proposed to the Special Body to accept the prior defense of the judge of Araçatuba – due to the precedent of the CNJ -, even disagreeing with that plenary decision of the Judiciary’s control body.
This Wednesday, the majority rejected the previous defense (by 22 votes to 3) and followed the divergence opened by the judge Moreira Viegas. In addition to the corregedor Ricardo Anafe, the judges Moacir Peres and Márcio Bártoli voted for the filing.
The prosecutor understands that Judge Marcílio Castro’s decision is “teratological [anormal] and divorced from the legal reality ”.
“I don’t see constitutional, infralegal and jurisprudential support. What I see is a magistrate’s own ideology, a prejudice against the action of the Military Police. ”
When referring to the CNJ’s decision, Judge Soares Levada considered that “the facts are never repeated in the same way”. He voted against filing the case. He said that – although it should not be presumed – it is extremely necessary to ascertain with the utmost rigor whether there was a personal idiosyncrasy, or a failure in the legal training of the magistrate of Araçatuba.
Judge Alex Zilenovski praised the magistrate and also disagreed with Anafe: “Despite the decision of the CNJ, the Court of Justice cannot be reduced, it cannot give up its duty and its power of censorship”.
“The judge must be free to decide. Your conviction must be respected ”, says Zilenovski. “It is not because there is a decision by the CNJ that we should, as of now, give up checking what is behind it.”
Judge Ferraz de Arruda affirmed that “the decisions of the CNJ are administrative, they do not establish a thesis for the state courts”. He also recalled that the council is made up of transitional members.
Politicization of judges
For the president of the TJ-SP, the trial that acquitted Corcioli Filho at the CNJ “fled the impersonality that should guide the trials”.
In his vote, Pinheiro Franco says: “It is necessary to seriously discuss this issue, when it presents itself, because times are different too, in an open, transparent and responsible way, because it is the duty of everyone to prevent the politicization of jurisdiction, the application of the law with ideology and the decision backed by the magistrate’s personal opinion, outside the limits of the law ”.
The president says that the STF has already decided on several occasions that “there are no absolute, unlimited or unlimited rights, even among those of constitutional stature”.
According to him, it is no different in relation to the immunity of Article 41 of the Loman, “under penalty of creating a situation of perplexity in which the judge can never be punished in the administrative field for the content of his decisions, even when he consciously breaks the submission to the law. law and manipulates the order according to circumstances, possible interests, or just according to his subjective feeling of justice ”.
Article 41 of the Loman establishes that “except in cases of impropriety or excessive language, the magistrate cannot be punished or harmed for the opinions he expresses or for the content of the decisions he makes”.
The president says that judge Marcílio Castro chose Araçatuba to start his judicial activity “and he has been there for two years and five months, although it was already possible for him, like many other judges in the same competition, to promote himself to the position of law judge initial entrance ”.
He says that the magistrate “is well aware of the relevant issue of trafficking and its harmful consequences,” and that “since then, whether in decisions or in sentences, he has manifested a true defense of the accused (improper for a judge), who, according to him, they are ‘unduly harassed’ by the Military Police ”.
The magistrate’s criticisms, which result in the arrest of the prisons in the act, refer to police actions in which a lot of drugs are found, says Pinheiro Franco.
“The police are reprimanded for playing their role, for searching a car and finding 133 kilograms of marijuana. The situation is unusual ”, comments the president.
The performance of the Military Police was praised by Judge José Damião Machado Pinheiro Cogan, who was a professor of several PM officers.
In refuting Judge Marcílio Castro’s understanding that “there was no well-founded suspicion for the act,” some judges cited that the suspicion was confirmed by the seizure of 133 kilograms of marijuana.
Pinheiro Franco stated that Loman, by providing that the judge cannot be punished or harmed by the opinions or the content of the decisions, “contemplates guarantee for the benefit of society and not the judge’s subjective right to decide against the law and in accordance only with your will”.
Referring to the defense argument that the decisions of Judge Marcílio Castro observed the prevailing jurisprudence of the higher courts, Pinheiro Franco says that “this is not the result of researching the most recent jurisprudence of the Superior Court of Justice regarding imprisonment in flagrante delicto and drug trafficking”.
He also cites numerous CNJ precedents in the opposite direction to the Corcioli disciplinary review trial.
One of the emphasized decisions states that “the principle of judicial independence does not constitute a blanket of absolute protection for the magistrate, capable of removing any possibility of his punishment due to the decisions he makes, nor does it function as the magician’s top hat, from which the judge can arbitrarily remove illusions of law, according to their exclusive desire ”.
“It is a citizen’s guarantee to ensure pressure-free judgments, but in accordance with the law and the law”, concludes Pinheiro Franco.