Organisations reject condemnation of São Paulo judge

In an open letter to the São Paulo Court of Justice, administrative punishment of judge for his legal understanding is condemned.

Civil society organisations, including Conectas, reject the administrative condemnation of Judge Roberto Luiz Corcioli Filho, by the São Paulo Court of Justice, on 8 August. In an open letter, the organisations state their view that the facts that led to sanctioning the judge could have been dealt with through suitable channels without the need to resort to threatening methods, which is what actually happened.

According to the letter, there is an ideological component in the sanctioning of the magistrate, who was punished for taking a juridical stand that tends towards limiting criminal codes. Organisations recall that the independent nature of the judiciary allows the possibility for judges to take legal decisions, without undue pressure from other official agents.

The letter is signed by the Association of Judges for Democracy and is co-signed by Conectas and five other civil society organisations, including Article 19 and JusDH human rights group.

The full letter:

OPEN LETTER – CENSURE OF JUDGE ROBERTO CORCIOLI WEAKENS THE DEMOCRATIC STATE GOVERNED BY THE RULE OF LAW

THE ASSOCIATION OF JUDGES FOR DEMOCRACY (AJD), a non-profit-making, non-governmental organisation, which has the statutory aim of absolute unconditional respect for the values of democratic rule of law, including the independence of the judiciary, would like to make public its repudiation of the administrative punishment imposed on Judge Roberto Luiz Corcioli Filho, for the following reasons:

1 – In the session held on 8 August, the Special Body of the São Paulo Court of Justice passed administrative punishment for censorship on Judge Roberto Luiz Corcioli Filho.

2 – The gravest problem is that the facts that led to sanction consist of decisions taken by the São Paulo magistrate in the independent sphere of his profession and that these could have been challenged via the appropriate channels. However, instead of these channels, the path of intimidating punishment was taken.

3 – It is important to note that a large number of the judicial decisions in question are characterised by their limitation of state punitive action and favour the freedom of people in custody. In addition, his decisions were correctly based on current Brazilian legal constitutional devices and on solid doctrine and judgement.

4 – There is, therefore, an ideological component in the sanction imposed. The Judge was punished because his legal position tends towards limiting criminal codes. It is worth noting that this happens in countries where public freedom is ruled by all-powerful Leviathan states.

5 – Bearing in mind that an independent judiciary is an important victory of democratic rule of law of which it is considered an essential requisite. This guarantee implies that all magistrates – from a substitute judge at the beginning of his/her career to a minister of the Federal Supreme Court – should be able to take decisions based on their legal convictions, free of any instrument of inappropriate pressure from other official agents.

6 – The sanction given to Judge Roberto Luiz Corcioli Filho can only be interpreted as punishment of the legal understanding he adopted.  It should be noted that his understanding goes against the current public policy which is responsible for the mass imprisonment that has led to Brazil occupying the shameful position of having the third largest prison population in the world, basically made up of poor black people from underprivileged neighbourhoods.

7 – The magistrate was within the limits of his power, his duty being to control policies such as these. This is the nature of the role expected of the judiciary, a system of containment and counteraction, a characteristic of democratic rule of law, with separate bodies of power. The Judge who was punished, demonstrated through his decisions, that the work of the judiciary is not, and should not be, a mere body of approval for the Public Administration’s policing activities.

8 – In light of the above, the punishment of Roberto Luiz Corcioli Filho does not just violate the prerogative of a magistrate, it also violates the democratic rule of law itself, which has, firstly, been undermined, by a Judge being punished for controlling the punitive methods of the State administration, within the confines of the law and is further weakened by the fact that the punishment in question carries the grave potential of making other magistrates fearful of exercising their power/duty to carry out some form of control.

9 – Finally, we recall that in judging a similar case, on 28 August 2017 (Kenarik Boujikian versus São Paulo Court of Justice), the National Council of Justice, through the then adviser Gustavo Alkmim, understood that: “To punish a magistrate for his understanding represents the greatest violence possible of his/her judicial activity, this being fundamental to democracy by rule of law.”

10 – For all the above reasons, the Association of Judges for Democracy is asserting the grave anti-judicial nature of the punishment given to Judge Roberto Luiz Corcioli Filho and calls for a decree of nullification by the relevant bodies and for courts countrywide to respect functional independence as a democratic imperative.

São Paulo, 10 August 2018.

CO-SIGNATORIES OF THIS LETTER:

ARTICLE 19

CONECTAS

IBCCRIM

JUSDH

SPECIAL UNIT FOR PRISON CONDITIONS AT THE SÃO PAULO PUBLIC DEFENDER’S OFFICE

TERRA DE DIREITOS