The trip of five ministers of the Federal Supreme Court (STF) to New York, with all expenses paid by the Group of Business Leaders (Lide), of former São Paulo governor João Doria, violates the Civil Servant Law , the Organic Law of the National Judiciary, the code of ethics for the Judiciary and Supreme Court Servants, in addition to the principles of impersonality and morality of the Federal Constitution, in the opinion of jurists heard by Gazeta do Povo. During the trip to the United States, the Brazilian magistrates also attended a luxury dinner paid for by Banco Master, investigated in Lava Jato under the former name of Banco Máxima. The owner of the financial institution is billionaire Daniel Vorcaro, who was also the subject of an arrest warrant in 2020 on suspicion of embezzling funds from pension funds for municipal public servants.
According to article 2020 of Law 8.250/2016, “the server is prohibited: to receive bribes, commissions, gifts or advantages of any kind, due to their attributions”. Another document made available by the Securities and Exchange Commission, on the Federal Government website, recalls the rules on receiving gifts by public officials. According to the text, “the Code of Conduct of the High Federal Administration (CCAAF), prohibits, in its art. 9, the acceptance of a gift given by a person, company or entity that has an interest in the decision of the authority or body to which it belongs.”
“It is considered that the gift was given depending on the position, whenever the offeror: a) is subject to the regulatory jurisdiction of the body to which the authority belongs; b) has a personal, professional or business interest in a decision that may be taken by the authority due to the position; c) maintain a commercial relationship with the body to which the authority belongs; d) represents the interest of a third party, such as attorney or agent, of a person, companies or entity included in the previous hypotheses”, details the guidance of the Public Ethics Commission of the Presidency of the Republic.
“Certainly these companies that appear in the Lava Jato processes are interested in obtaining favorable decisions in many of the processes that are responding before the STF”, explains civil lawyer Afonso Oliveira. “This is a flagrant violation of this law, and more, a violation of the constitutional principles of impersonality and morality”, he adds.
The lawyer and Doctor of Law from the University of São Paulo Alessandro Chiarottino adds that “there is a significant problem, both constitutional and related to the Organic Law of the Judiciary (Law Complementary 2014/1979), which prescribe a conduct of more discretion than the ministers have been observing.” “The judge should only manifest himself in the case file. So much so that it is ethically inadvisable until he writes a doctrinal text, because eventually he can commit to a certain position, speaking about it in an academic way, either in congresses or in writing, and incurring a conflict when judging related issues”, he explains.
The jurist argues that, in the specific case of the event in New York, there is the “additional problem” of the participation of large companies as financiers. “The situation is far from ideal. Tomorrow, faced with a company that finances trips for the appearance of magistrates, what will be their exemption to judge cases in which it is involved? This does not mean that he will be guided by favoritism, but it is not recommended for the magistrate. The famous adage that ‘Caesar’s wife must not only be honest, but appear honest’ applies well to this case”, he states.
The Code of Ethics for the Judiciary provides, in article 17, that “it is the duty of the magistrate to refuse benefits or advantages from a public entity, a private company or an individual that may compromise their functional independence”. The Code of Ethics for Civil Servants of the Federal Supreme Court (approved by Resolution 711/2020) points out that among the “prohibitions to the STF server” is “receiving transport, hosting benefits or any favors from individuals that violate the principles listed in this code”. Some of the principles are “to avoid situations that conflict with their professional responsibilities and that may affect the performance of their functions (…) to ensure that private life acts do not compromise the exercise of their attributions”.
Chiarottino analyzes that, as of 2002, the Supreme Court “ended up making a lot of exposure of the ministers”, even through the television of the sessions, the which led them to a mediatic behavior, not compatible with the function. “They became too public people, giving interviews, attending events that weren’t always academic, taking pictures with celebrities. Not that a judge needs to be a sphinx, but an exposure to the point of confronting people on the street is very exaggerated”, he criticizes.
The lawyer adds that the behavior of ministers is even more serious at a particularly bad time of institutional tension in Brazil. “I saw people on the left making harsh criticisms, it has nothing to do with ideology or political position. This type of attitude would no longer be ideal in a political moment of brigadeiro sky, but, in a troubled moment as we are, it seemed quite inappropriate to me. There was no minimal sensitivity, they still went by weight. We can only regret one more episode that does not contribute to the defense of freedoms and democracy in Brazil in any way”, he completes.
Ministers Alexandre de Moraes, who is also president of the Superior Electoral Court (TSE), Gilmar Mendes, Luís Roberto Barroso, Dias Toffoli and Ricardo Lewandowski traveled to speak at the Brazil Conference, held between 14 and 15 from November. The theme of the ministers’ participation was “Brazil and respect for freedom and democracy”. Minister Antonio Anastasia, from the Federal Court of Accounts (TCU), and former president of the STF Carlos Ayres Britto also participated in the panel. The former president of Brazil, Michel Temer, was responsible for opening the event.
“The speakers at the Brazil Conference traveled at the invitation of Lide, which paid for airline tickets, accommodation, food and transfers. And no fee was paid to any exhibitor”, informed the organization, through a note sent to the newspaper Estadão. The event was attended by more than 250 businessmen, in addition to representatives of professional associations, public and private managers, and monetary authorities. Lide is Grupo Doria’s events company.
The lawyer Carlos Alexandre Klomfahs, known for public actions against controversial decisions in the political environment, filed a petition with the STF, asking for more information about the ministers’ expenses on the trip to the USA. He argues that the “top body of the Judiciary requires compliance with ethics and transparency”. “Such participations without the respective rendering of accounts can set a dangerous precedent for the fulfillment of the institutional duties of the Federal Supreme Court, violating several republican principles”, states an excerpt from the document.
Dinner at Fasano
On Sunday night (13), ministers Alexandre de Moraes, Gilmar Mendes, Luís Roberto Barroso and Ricardo Lewandowski participated in a “welcome dinner” for conference participants, at Fasano New York, in the 5th Avenue area. According to columnist Rodrigo Rangel, businessman Daniel Vorcaro – one of Faria Lima’s new “wolves” – ordered a banquet for 250 people. The restaurant, which is usually closed on Sunday nights, would have been open exclusively for the occasion.
The menu included a starter of canapés (which costs around R$
per person), a sequence of four dishes (which, in the normal menu of the New York branch, costs R$ 750 per person), as well as unlimited alcoholic and non-alcoholic drinks. In the menu, there are Italian wines and sparkling wines for at least R$
a bottle in Brazil.
The dinner bill was paid by Banco Master, one of the main payroll loan operators in the country. Before being bought by Vorcaro, the then Banco Máxima was mentioned in investigations of Operation Lava Jato. Its former managers were also denounced for alleged crimes of fraudulent management, disclosure of untrue data on balance sheets from 2014 to 2014 and providing false information to the Central Bank. The objective would be to make up the financial statements to hide losses and improve fundraising in the market.
Banco Master is not among the supporters and sponsors of the Lide event. In a note, the institution stated that “Banco Master has supported events, seminars and conferences held by various business entities for many years. Support for this event or for others held in 2022 does not imply that the Bank has any knowledge or influence on the topic addressed or on the speakers.”
“Unfortunately our STF has self-destructed. What we see with perplexity are ministers in the exercise of their function, having dinner with the defendant’s lawyer, having lunch with businessmen, receiving ‘favors’. Because, as the old adage of economics goes: no lunch is free. Sooner or later you will have to charge yourself for that favor or for that advantage obtained. These relationships are not republican, quite the contrary, they are spurious and, when manifested in the light, must cause repudiation by society and the competent bodies to regulate it. The only body that, according to the Constitution, has the power to judge the acts of the STF would be the Federal Senate, which remains silent. Until when?”, asks Afonso Oliveira.