Dino votes to maintain a ban on compulsory retirement as a punishment for judges
Minister Flávio Dino, of the Federal Supreme Court (STF), voted this Tuesday, 26, to deny appeals against the decision that declares the extinction of compulsory retirement as a punishment for magistrates. The First Panel is currently judging appeals filed by the Attorney General’s Office (AGU) and the Attorney General’s Office (PGR).
In March, Dino determined that compulsory retirement as a disciplinary punishment for judges can no longer be applied because it is incompatible with the changes made to Constitutional Amendment (EC) 103/2019, which resulted in the Social Security reform.
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“Serious infractions must deserve punishments that are not transferred to society and that are reprehensible,” stated Dino when denying the appeals. He also said that Congress made an “unequivocal political choice” by leaving compulsory retirement out of the Social Security reform.
The minister highlighted that the Constitution establishes only three types of retirement for public servants and that there is no reference to compulsory retirement in this list.
“Lifetime does not mean that someone will enter the Kingdom of Heaven in a gown”, he joked. “Lifetime only means that there is, yes, loss of position, however, with a final court sentence.”
Dino also rejected the argument that he could not declare the extinction of compulsory retirement in a monocratic decision. In his understanding, it is not a matter of declaring the rule unconstitutional (which would not be possible in the type of action under analysis), but rather declaring that the rule on compulsory retirement, prior to 1988, was not accepted by the Constitution.
“The penalty applied was based on the Organic Law of the National Judiciary (Loman), prior to the Constitution and EC 103. For this reason, the assessment of the constitutionality of compulsory retirement is conducted in the court of reception or non-reception”, he stated.
The appeals ask that the decision only have effect in the specific case, which affects a magistrate of the Court of Justice of Rio de Janeiro (TJRJ).
The sentence was contested because the type of action in which the determination was made does not have “binding effect” – that is, it is restricted to the specific case under analysis, without mandatory compliance by other Courts and the public administration.
“The decision does not even have a collegiate nature, having been handed down monocratically by the reporting minister. Consequently, it does not have the formal and material characteristics required to produce effects transcending the specific case”, stated the AGU.
The PGR pointed out that the decision “contravenes due legal process” and said that the issue requires “greater caution and collegial pronouncement”. For the body, the decision should be judged directly in the plenary, composed of 11 ministers (currently, 10).
