Selling a sentence: understand what a PF investigation against a judge is

The Federal Police investigation into the alleged irregular actions of a judge in granting house arrest to a drug dealer linked to the PCC, arrested this Tuesday (26), once again highlighted a sensitive topic in the Justice system: the so-called "sale of sentences".

The expression is usually used to describe situations in which a magistrate uses his position to make judicial decisions in exchange for an undue advantage. Although the term is widely known, it does not appear as a specific crime in Brazilian legislation.

In practice, conduct of this nature can be classified into different criminal types, depending on the elements identified in the investigation.

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In the case of Mato Grosso do Sul judge Divoncir Maran, the Federal Police points to suspicions of passive corruption, money laundering and criminal organization. The agenda was forwarded to the STJ (Superior Court of Justice), responsible for analyzing criminal investigations involving state judges.

What characterizes a suspicion of "sentence selling"
From a legal point of view, a judicial decision later considered wrong does not constitute, in itself, a crime.

In order for a magistrate to be held criminally liable, investigators need to demonstrate elements that indicate that the decision was influenced by external interests or obtained an undue benefit.

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Among the signs normally analyzed are:

- messages between investigators and advisors;
- incompatible financial transactions;
- receipt of values or benefits;
- breach of internal protocols;
- coincidence between payments and legal decisions;
- coordinated action with third parties.

In investigations of this nature, the judicial decision itself usually acts as a starting point, but it is not sufficient in isolation to sustain an accusation.

What crimes can be investigated
Among the crimes normally analyzed in these investigations is passive corruption, provided for in the Penal Code. It occurs when a public agent requests, receives or accepts the promise of an undue advantage due to the position he or she holds.

In cases involving magistrates, the hypothesis investigated is usually the existence of an economic benefit or other advantage linked to the content of judicial decisions.

Another possible scenario is money laundering, a crime that can be investigated when there is suspicion of concealment or dissimulation of the origin, movement or ownership of amounts allegedly obtained illegally.

In these cases, the investigation normally seeks to identify incompatible financial movements, interposed by people, companies or mechanisms used to make it difficult to track resources.

There may also be an investigation by a criminal organization, when authorities understand that there is structured and coordinated action between different people to obtain illegal advantages. The legislation requires, as a rule, a stable association between members with division of functions and a common objective of criminal practice.

Depending on the context, investigations of this nature may also examine crimes such as administrative advocacy, influence peddling or obstruction of investigations, although the framing depends on the concrete facts established.

In addition to the criminal sphere, magistrates remain subject to administrative and disciplinary liability before the judicial control bodies.

How investigations against magistrates work
Members of the Judiciary have institutional guarantees provided for in the Federal Constitution, such as lifetime, irremovability and irreducibility of subsidies, which are created to protect judicial independence and avoid external interference with the content of decisions.

These guarantees, however, do not mean immunity.

When suspicions arise against magistrates, administrative and criminal investigations can be launched in a parallel and independent manner.

In the case of state judges, any criminal investigations are usually processed before the STJ, due to the forum's prerogative of function.

In general, the investigation begins with preliminary elements, such as legally intercepted communications, financial reports, information shared by control bodies or documents obtained in other operations.

From this, authorities can request measures such as:

- analysis of messages and electronic communications;
- examination of cell phones and electronic equipment;
- crossing of banking and property data;
- collection of statements;
- tracking of financial movements;
- sharing of evidence between authorized bodies.

In parallel to the criminal sphere, the case can also be analyzed administratively by the CNJ (National Council of Justice), responsible for disciplinary control of the Judiciary.

In this context, the objective is not to investigate crimes, but to verify whether there has been a violation of the judiciary's functional duties. Therefore, a magistrate may suffer administrative sanctions even before the definitive closure of any criminal proceedings, respecting the contradictory and broad defense.

In fact, one of the most recurrent discussions in these cases involves the difference between disciplinary sanctions and criminal liability. At the administrative level, magistrates may be subject to warning, censure, removal, availability or compulsory retirement. These measures, however, do not replace possible criminal liability.

What is compulsory retirement and why the measure is under debate
Until recently, compulsory retirement was considered the most severe administrative sanction applicable to magistrates in disciplinary proceedings conducted by the CNJ.

In practice, the measure removed the judge or judge from holding office, but maintained the right to receive remuneration proportional to the time of contribution. For this reason, the model became the target of criticism from experts and members of the Justice system, who argued that punishment could have limited effect in cases of serious infractions.

The discussion gained a new chapter this year after a decision by Minister Flávio Dino, of the STF (Supreme Federal Court), who understood that compulsory paid retirement no longer had a constitutional basis after the 2019 Pension Reform.

According to the decision, judges who commit serious infractions may be punished with loss of office and, consequently, no longer receive remuneration linked to their function.

The understanding is still being discussed in the STF after an appeal filed by the PGR (Attorney General's Office), which maintains that changes of this nature should occur through the National Congress and warns of possible impacts on institutional guarantees of the judiciary.

The trial is being watched closely because it could redefine the maximum administrative punishment applicable to judges and judges across the country.

It is still worth remembering that any administrative punishment does not replace criminal liability. If evidence of crimes is identified, magistrates remain subject to investigation, denunciation and possible conviction in the competent authorities.

In the previously mentioned case, involving the judge investigated, the administrative investigation resulted in compulsory retirement by the CNJ. The criminal investigation is still being analyzed by the competent authorities.

The space is open to express the judge's defense.

Source: CNN