Fachin’s proposal for the STF and other higher courts, the code of conduct is common abroad; see examples

Last week, the STF president’s idea was revealed after columnist Lauro Jardim revealed that Dias Toffoli made it to the Libertadores finalin Peru, on the same plane as a lawyer from Banco Master, an investigation for which he is the rapporteur. Shortly afterward, he imposed secrecy on the affair.

The German code is very concerned about the image of the Court when it addresses the presence of members during events, one of the points on which Fachin wishes to focus. It specifies that judges can only accept remuneration for their interventions and participation in events 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”.

Also in Germany there are indications on the position that court members can adopt 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”.

— 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.

With Sergio Fausto and Ana Laura Barbosa, Vilhena coordinated a study within the framework of the Fernando Henrique Cardoso Foundation, which was entrusted to Fachin when the minister took office as president. The document 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 of the research is entitled “Strengthening the public reputation of the court” and it is in this that possible avenues concerning the conduct of judges are discussed. International examples include Germany, the United States and France.

The American case attracts attention because, as in Brazil, it was triggered by concrete examples linked to a magistrate. After ProPublica reported on Republican-linked Justice Clarence Thomas, the Supreme Court adopted a code of conduct for the first time in 2023. The reports exposed political activities and undeclared gifts received by Thomas.

Among the strong points, the American text specifies that “a minister should 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 must consider whether such conduct would create, in the eyes of a reasonable portion of the public, an appearance of impropriety.”

In France, we also worry about “appearances”. The Code of Conduct of the Constitutional Council 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 – on the independence or impartiality of the members of the administrative jurisdiction”.

The United Kingdom, Europe’s second largest economy – behind Germany and ahead of France – also has a guide, the “Guide to Judicial Conduct”. Although not included in the legislation, the text lists the principles that should govern the work of ministers.

“Each judge shall seek to avoid extrajudicial activities that might require him or her to refrain from participating in a matter because of a reasonable perception of bias or because of a conflict of interest that would arise from that activity,” one of the articles states.

In other countries, the model is similar to the current one in Brazil, which has the Organic Law of the Judiciary: ministers are covered by guidelines which serve all judges, without taking too much into account the specificities of higher courts. It’s like that in Italy and Argentina. In the South American neighbor, some of the values ​​highlighted by the code include the “exemplarity” of magistrates and “public confidence”.

For Professor Rubens Glezer of the FGV, one of the signatories of the document presented to Fachin, the international experience is valid, but the code currently formulated in Brazil is based on the country’s own diagnoses.

— This is not a question of transplanting a foreign solution. It is a diagnosis that the Brazilian academic world has been producing for decades on the Supreme Court, on the various problems facing the Supreme Court and which have become more pronounced in recent decades — he said. — 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.

Germany – With 16 succinct guidelines, the Constitutional Court’s code of conduct attempts to preserve the “independence, impartiality, neutrality and integrity” of the Court. It imposes rules for participation in events and interviews, in addition to determining a strict quarantine for those who leave the court.

UNITED STATES – More recently, the text that guides the conduct of the Supreme Court was developed after revelations about Justice Clarence Thomas. Among these points, he stresses that ministers should avoid participating in events in which there are groups with “a substantial financial interest” in a matter, for example.

France – There, we worry about the “appearance” of the court. The code specifies that “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 members”.

United Kingdom – There is also a guide, the “Guide to judicial ethics”. Although not included in the legislation, the text lists the principles that should govern the work of ministers. According to the code, judges must avoid extrajudicial activities that could lead to possible conflicts of interest.

Argentina – As is the case today in Brazil, the Argentine code of conduct serves the judiciary as a whole, without taking into account the specificities of higher courts. He highlights “exemplarity” and “public confidence” as pillars of judges.