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Brazil: Federal Supreme Court Confirms Powers of National Council of Justice

(Feb. 13, 2012) On February 8, 2012, in a very close, six-to-five decision, the Brazilian Federal Supreme Court decided to keep the rules currently in force that standardize the methods for investigating judicial misconduct in the country. The rules were created by Resolution No. 135 of July 13, 2011, issued by the National Council of Justice (Conselho Nacional de Justiça – CNJ). (Resolução No. 135, de 13 de Julho de 2011, Conselho Nacional de Justiça website.) The Supreme Court ruled that the CNJ, as an organ that exercises national control over the judiciary, has the power to establish such standards. (Ação Direta de Inconstitucionalidade (Med. Liminar) No. 4638 [Direct Action of Unconstitutionality (Preliminary Injunction) No. 4638] (Aug. 16, 2011), Federal Supreme Court website.)

The NCJ was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004 (Emenda Constitucional No. 45, de 30 de Dezembro de 2004, PLANALTO.GOV.BR). The NCJ, according to the Brazilian Constitution, is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges (Constituição da República Federativa do Brasil, art. 103-B(§4), PLANALTO.GOV.BR (last visited Feb. 9, 2012)).

The Supreme Court ruling was made in response to an action brought by the Brazilian Association of Judges (Associação dos Magistrados Brasileiros) arguing the constitutionality of several articles of Resolution No. 135. The ruling, upholding the Resolution, establishes a period of 140 days for administrative processes against an investigated party to be concluded in the local tribunals, creates deadlines for the submission of the defense of the investigated persons, and specifies the members for a panel of judges who will investigate their peers. (Débora Zampier, Supremo Mantém Regras do CNJ sobre Metodologia para Investigar Juízes, AGÊNCIA BRASIL (Feb. 8, 2012).)

In the ruling, the Ministers of the Supreme Court also decided to retain in the Resolution an article that determines how to apply punishments, so at the end of an administrative proceeding, a magistrate found guilty will actually receive a punishment. Currently, the Constitution allows judges to be punished only after consent by an absolute majority of their peers, expressed through a vote. (Id.)