Políticas públicas judiciárias de controle como instrumento de fiscalização dos comportamentos de magistrados e magistradas

Abstract

The research investigates the role played by the National Council of Justice and the internal affairs in overseeing the activities carried out by magistrates, in the professional context of actions linked to the Judiciary, as well as external to the function, in other words, behavior linked to the integrity of these agents. When they take office, judges also make a commitment to society to maintain their conduct with integrity, impartiality and within the bounds of the law. Disciplinary control, which investigates possible administrative transgressions and, if necessary, penalizes them, must be accountable — transparent, responsive and supervisory — when monitoring the activities of the judiciary. This is the subject chosen for this research. The aim was to verify the accountability of public control policies, namely the Organic Law of the National Judiciary and the Code of Ethics of the National Judiciary, instrumentalized by Resolution 135/2011 of the National Council of Justice (CNJ), which is responsible for standardizing administrative disciplinary proceedings. In order to investigate the patterns of this action, the research was carried out in a centralized context, based on the National Council of Justice, and decentralized, through the work of the internal affairs linked to the State Courts. It used a case study associated with documentary analysis of judicial proceedings (2012-2023). In this context, the research problem was to investigate whether or not judicial public control policies aimed at the performance of the judiciary, through the actions of the CNJ and the local affairs, fulfill the necessary requirement of accountable activity. As an answer to the research problem, elements were presented which show that both the central control body and the local court bodies do not have an accountable activity, suggesting (i) a lack of transparency in the scope of their actions; (ii) delays in concluding administrative disciplinary procedures, demonstrating insufficient responsiveness to possible disciplinary transgressions; (iii) a lack of compatibility between the inspections carried out by the National Council of Justice and the local courts. Throughout the investigation, elements common to the procedures were identified, such as the CNJ's actions in cases where preliminary investigations were closed; the weighing up of the application of penalties based on ethical principles; the questioning of the Council's competence to judge actions initiated within the scope of decentralized control. Based on these elements, and realizing that the result suggests a lack of accountability on the part of the control institutions due to the absence of transparency, low responsiveness and the conflict of control exercised by the responsible bodies, which have concurrent competence, the following suggestions were made: (i) the creation of a unified database to make public and accessible the way in which the CNJ controls the activities of magistrates, highlighting the measures applied with the aim of improving the institution; (ii) the drafting of instructions, issued by the CNJ, to the Courts in order to ensure that the filing of disciplinary proceedings becomes more judicious, with regard to indications of functional and/or behavioral misconduct, preventing conduct contrary to the legal system from being investigated; (iii) the issuance by the competent authority (CNJ) of a national judicial public policy that deals with the transparency of decisions, including when they relate to confidential procedures, ensuring that documents such as certificates of trial sessions are made available, in accordance with existing legislation, namely the Access to Information Act. The recommendations are aimed at making the National Council of Justice and the local courts more accountable, taking into account that these institutions are responsible for supervising and guiding the conduct of the public agents linked to them, but are not immune to social supervision. Despite the limits of access to the data on judicial administrative proceedings found, this final report contributes to the creation of an overview of public control policies related to the work of the judiciary. It also indicates possibilities for a new field of research in the Law and Public Policy approach, especially in the area of control.