cases from other countries support a study submitted to Fachin which proposes a “code of conduct” within the STF

• Interview: “Trauma” pushed Lula to adopt a more defensive position when appointing STF ministers, says Oscar Vilhena

Defended by researchers for some time, the idea of ​​creating a guide intended for members of higher courts was strengthened after the columnist Lauro Jardim revealed on Sunday that Minister Dias Toffoli, rapporteur of the investigation into Banco Master, went to Lima on the same plane as the lawyers in charge of the case. Palmeirenses, they traveled to the Peruvian capital to witness the defeat of the São Paulo team against Flamengo in the Libertadores final.

Entitled “The Responsibility of the Last Word: Contribution to the Institutional Improvement of Brazilian Constitutional Jurisdiction”, the document bearing the seal of the Fernando Henrique Cardoso Foundation was coordinated by Oscar Vilhena, Sergio Fausto and Ana Laura Barbosa. It also has other important signatories, such as former STF Minister Cezar Peluso and former Justice Ministers José Carlos Dias, Miguel Reale Júnior and José Eduardo Cardozo. One of the three axes is called “Strengthening the public reputation of the court”, and it is in this that possible avenues linked to the conduct of judges are discussed.

— The movement is very positive, recent episodes show its importance. We have been waiting for a code of conduct for a long time. It is more than necessary for society to be clear about what is allowed and to hold ministers accountable when they do something outside the code — says Oscar Vilhena, director of the FGV Direito SP. — I consider the German model to be a great reference. There are 16 devices, it’s a simple code with very clear rules.

The first principle of the German code says that ministers “must behave, both inside and outside the exercise of their functions, in such a way as not to compromise the prestige of the court, the dignity of the office and confidence in its independence, impartiality, neutrality and integrity.”

Then, guidelines are listed, for example on the participation of ministers of the Constitutional Court in events – one of the points on which Fachin intends to focus in the code currently being developed. Judges in the European country can only accept remuneration for “lectures, participation in events and publications” if this does not damage the reputation of the Court and does not raise doubts about “the independence, impartiality, neutrality and integrity of its members”, values ​​​​put forward at the beginning of the code.

Also in Germany there are signs of the position that court members can take during interviews, ensuring that “the content and form of their statements are consistent with their functions, the prestige of the court and the dignity of the office”.

Concern about “appearance”

Still in Europe, the FHC Foundation document given to Fachin mentions the French case. The Code of Conduct of the Constitutional Council of this country underlines the need to take into account the “prevention of situations likely to give rise to legitimate doubt – even if only from the point of view of appearances – as to the independence or impartiality of the members of the administrative jurisdiction”. In other words, it reinforces the need to avoid loopholes that give rise to negative interpretations.

“This therefore clearly shows that it is not just about objectively complying with legal decisions, but rather about building an image of integrity which requires extra caution,” the study notes.

In the United States, similar situations exist. The reasons for the behavior of the Supreme Court ministers were produced in November 2023 after the investigative site ProPublica made revelations about Minister Clarence Thomas, linked to the Republican Party.

The text specifies that “a minister must not speak or participate in a meeting organized by a group if he knows that this group has a substantial financial interest in the outcome of a matter pending before a court or likely to be heard by it in the near future”.

It further states that “when deciding to speak or appear before a group, a minister should consider whether such conduct would create, in the eyes of reasonable members of the public, an appearance of impropriety.”

According to Professor Rubens Glezer of the FGV, researcher on the Supreme Court and one of the signatories of the study presented to Fachin, the international experience is valid, but the code currently formulated in Brazil is mainly based on diagnoses specific to the Brazilian case.

— This is not a question of transplanting a foreign solution. It is a solution based on a diagnosis that Brazilian academia has been producing for decades on the Supreme Court, on the various problems that the Supreme Court is experiencing and which have become more pronounced in recent decades, he says. — It is also based on the perception that the reputation of the institution is tarnished by the individual behavior of certain ministers. The bad reputation of individuals spreads, contaminating the court.

The code therefore attempts to create a parameter to strengthen the institutional character of the Supreme Court, explains Glezer.

— The idea is to create mechanisms that will help the Supreme Court regain its reputation among a large part of the population and the legal community. Having something that helps control or at least mitigate, embarrasses those who do not have this commitment – he emphasizes. — The recommendations of the code of ethics are even trivial, they are not radical innovations. They are proposed as part of a compromise that should represent the minimum of conduct of the Supreme Court, the minimum that is expected of the Court. However, it was a court that failed to fulfill these obligations.

In addition to discussing this issue with members of the Court, Fachin spoke with the presidents of other higher courts. However, the STF believes behind the scenes that the realization of the project will encounter obstacles and will require numerous negotiations.

In 2023, then-president Minister Rosa Weber attempted to approve a rule for the participation of judges in events sponsored by large companies. This proposal provoked a “rebellion” within the judicial system.