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Has the Brazilian Judiciary Become a Mafia?

Brazilian Supreme CourtThe Brazilian judiciary has historically been so rife with corruption and nepotism that one could spend years writing on them. They are indeed very old problems, and still very much a serious problem in these days.

To give just an idea of how the problem is deep-rooted, we may for example mention a curious fact that happened in colonial times. In 1676, a judge from the High Court of Bahia refused to vacate his rented house and, afterwards, did not allow the landlord even to be heard before ‘his’ court.(1)

Today’s corruption in the Brazilian judiciary is certainly not a problem restricted to court functionaries. Judges have been regularly accused of a vast range of corrupt activities, which goes from diverging public funds to passing lenient sentences against dangerous criminals.(2)

In 2003, the police found that a judge from Brazil’s Superior Court of Justice (STJ), the second highest court in the country, was selling writs of habeas corpus to drug-dealers.(3)

A few years earlier, in 1999, a state judge from Mato Grosso was brutally killed only six weeks after denouncing other judges for taking bribes from drug-dealers.

In Brazil, trials related to criminal offences need to be held within a certain period. Therefore, the great backlog of cases may allow some judges to dismiss old cases unheard.

This practice might lead a corrupt judge to delay criminal actions deliberately, and further dismiss them as not held in proper time. Actually, defence lawyers might also delay lawsuits intentionally, particularly when they are paid by their clients according to the amount of time spent on them.(4)

The Constitution of Brazil gives to judges the power to prepare their own budget. Unfortunately, the judicial power has never administered its funds properly. In 1995, for example, the new STJ building, a courthouse for only thirty-tree judges, cost more than US$ 170 million.

The building went on to include more empty rooms than used ones, as well as an indoor theatre, exercise rooms, two restaurants, a ballroom, a bar, and even a swimming pool.(5)

One may reasonably suspect that some judges allow the overcharge of courthouses in order to obtain any share of the proceeds. Actually, a 1999 fact-finding enquiry conducted by members of the National Congress went on to find at least two cases of this sort of corruption.(6)

Judges did not support this kind of enquiry, by declaring that people’s elected representatives could not meddle in the ‘affairs’ of the judicial branch. However, the Congress discovered with this that the Federal Labor Court President in São Paulo, Nicolau dos Santos Neves, became a millionaire by constructing a courthouse.

Its final cost was ten times above the market rates. Likewise, the investigation also found that the Federal Labor Court President in Rio de Janeiro, Mello Porto, had authorized court projects at costs that were 340 percent above the market rates.(7)

Nepotism

Regarding to the problem of nepotism, everybody knows in Brazil that judges abuse of their privileged position in order to benefit personal friends and relatives. For example, many people have suspected that judges bypass the rigorous entrance exams for the judicial career by filling positions with unqualified family members.

Although this sort of scheme is extremely hard to be unveiled, other evidences have shown that nepotism is indeed a normally accepted practice among judges.

Since the latest Constitution of Brazil was enacted, in 1988, personal costs at the court system increased dramatically. It grew 760 percent between 1987 and 1999 alone.

The average number of staff members in the courts is actually 60 staffers per judge. In just one year, 1996, judges hired 11,000 new staffers. In 1999 alone, the eighty-eight judges from the Brazilian higher courts employed 5,000 new staff members.(8)

There are indeed many absurd examples of nepotism in the Brazilian judiciary. For example, the President of the Regional Federal Court (TRF) in Amazonas named in 1999 his own son as the director of this court.(9)

Also in 1999, audits from Paraíba found that 160 out of the 565 court employees were actually relatives of state judges.(10) The President of the Paraíba’s High Court had for instance employed seven of his adult children.(11)

Of course, the ‘champion of nepotism’ in Brazil is certainly not him. It may be a federal labor judge from the state of Paraná who employed in 1997 nothing less than 63 of his relatives, including wife and four adult children.(12)

One may suggest that what Brazil needs to avoid nepotism in the judiciary is a ‘tougher’ legislation.(13) Such a law already exists. In 1997, the Congress passed a federal law to combat it.

Since then, all federal judges are forbidden to employ relatives, including in-laws at the same category. When the bill was enacted, federal judges decided to stage a work stoppage.

They argued that the anti-nepotism bill violated Article 37 of the Brazilian Constitution, which allows certain federal employees to hire subordinates of personal confidence.(14)

Although the protest did not avoid this law to be enacted, judges have now blatantly evaded from their legal duties by naming the relatives of other judges to fill positions on their staff, and vice-versa.(15)

References

(1) On cases of corruption in the judiciary during colonial times, see: Stuart B. Schwartz, in his book Sovereignty and Society in Colonial Brazil – The High Court of Bahia and its Judges – 1609-1757. Berkeley: University of California, 1973.
(2) Fitzpatrick, John; Welcome to Brazil – Say ‘Cheese’. Brazzil, January 2004.
(3) Vargas, Daniela Treaw6kx; Civil Justice in the Americas: Lessons from Brazil. Florida Journal of International Law. March, 2004.
(4) U.S. Department of State; 2004 Country Reports on Human Rights Practices – Brazil.  Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004.
(5) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.88.
(6) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.88.
(7) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.88.
(8) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.86.
(9) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.104.
(10) Gallant, Katheryn; The Art of Stealing. Brazzil, March 1997.
(11) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.87.
(12) Gallant, Katheryn; The Art of Stealing. Brazzil, March 1997.
(13) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.87.
(14) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.87.
(15) Prillaman, William; The Judiciary and Democracy Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.104.

Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil.
He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro.
He is also a member of the editorial board of Achegas, Brazil’s journal of political science, and Lumen Juris, a prestigious law book publisher in Brazil. His e-mail address is:
augustozimmermann@hotmail.com.

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