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Independence of Judges in Brasil Independence of Judges in Brazil - Relevant aspects, cases and recommendations Independence of Judges in Brazil Relevant aspects, cases and recommendations Jayme Benvenuto Lima Jr. Editorr Sébastien Conan Co-editor José Eduardo Faria José Viana Ulisses Filho Luiz Mário de Góis Moutinho Marisa Viegas e Silva Rivane Fabiana de Melo Arantes Sébastien Conan Recife - 2005 1 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Copyright © 2005 by MNDH/NE and GAJOP Cover and design Clara Negreiros Cover photo Joana França Revision Maria Alves de Albuquerque Financial Support The Ford Foundation - Brasil´s Office ICCO - Interchurch Organization for Development Co-operation I38 Independence of judges: relevant aspects, cases and recommendations / edition: Jayme Benvenuto Lima Jr; co-edition: Sébastien Conan; presentation: Jayme Benvenuto Lima Jr.- Recife: Gajop; Bagaço, 2005. 1. Judiciary Power - Reform and control - Brazil. 2. Judiciary Power and political questions. 3. Judges - Brazil. 4. Human rights. I. Lima Jr., Jayme Benvenuto. II. Conan, Sébastien. III. Faria, José Eduardo. IV. Silva, Marisa Viegas e. V. Moutinho, Luiz Mário de Góis; Ulisses Filho, José Viana. VI. Arantes, Rivane Fabiana de Melo. CDD 347.81 CDU 342.56(81) 2 Independence of Judges in Brazil - Relevant aspects, cases and recommendations To all organizations and persons defending human rights in Brazil who contributed to this publication. 3 Independence of Judges in Brazil - Relevant aspects, cases and recommendations 4 Independence of Judges in Brazil - Relevant aspects, cases and recommendations About the authors Jayme Benvenuto Lima Jr. Attorney and jornalist; Masters in Law, Federal University of Pernambuco (UFPE); Ph.D candidate in International Law at University of São Paulo (USP); coordinator of the International Human Rights Program (dhINTERNACIONAL) of the National Movement of Human Rights – Northeast section (MNDH/NE) and Legal Advisory Office for Popular Organisations (GAJOP). Author of the book “Os Direitos Humanos Econômi- cos, Sociais e Culturais” (Editor Renovar, 2001). Editor of various other books, among them “Direitos Humanos Internacionais: avanços e desafios no início do século XXI” (GAJOP et al., 2002) and “Manual de Direitos Humanos Internacionais” (Editor Loyola, 2003), in addition to this publication. Professor of International Public Law at the Catholic University of Pernambuco (UNICAP). José Eduardo Faria Professor titular of Juridical Sociology at the University of São Paulo (USP); tutor of the Special Training Program of the CAPES (Coordenação de Aperfeiçoamento de Pessoal de Nível Superior) in partnership with the Law Faculty of the USP; ex-coordinator of the Pos-Graduation Program of this institution; Guest professor of the Universidad Pablo 5 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Olavide and Universidad de Andaluzia (Spain) and Università deglie Studi de Lecce (Italy). Author of “Justiça e Conflito: os juízes diante dos novos movimentos sociais” (RT); “Eficácia Jurídica e Violência Simbólica” (Edusp); “Direito e Economia na Democra- tização Brasileira” (Malheiros); “O Direito na Globalização Econômica” (Malheiros); “Qual o Futuro dos Direitos” (in colaboration with Rolf Kuntz, Editor Max Limonad). José Viana Ulisses Filho Substitute judge at the judicial district of Recife; Member of the Association Judges for Democracy (AJD); Masters in Law; Professor at the Catholic University of Pernambu- co (UNICAP) in the Graduation and Pos-Graduation Programs; Professor of the Superior School of Magistrates of the State of Pernambuco. Luiz Mário de Góis Moutinho Judge at the judicial district of Recife, 23rd Civil Chamber; Member of the Association Judges for Democracy (AJD); Regional Director of the Institute of Policy and Defense of the Consumer; Professor of Consumer Law of the Superior School of Magistrates of Pernambuco; Ex-scientific coordinator and ex-member of the Editorial Council of this School; Professor of the Advocacy School “Ruy Antunes” of the Brazilian Bar Association (OAB) of the State of Pernambuco; Professor of the Institute of Superior Education of Olinda (IESO); Guest Professor of the Pos-Graduation program of the University Center of Paraíba (UNIPÊ), João Pessoa. Marisa Viegas e Silva Attorney, Masters in Human Rights from the Department of Polítical Sciences of the Federal University of Pernambuco (UFPE); Ph.D candidate in Human Rights at the University of Salamanca (Spain); volunteer of the International Human Rights Program (MNDH/NE and GAJOP). Participated as fellow of the 31st Annual Session of the Institute of International Public Law and International Relations, of Thessalonica, Greece. 6 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Rivane Fabiana de Melo Arantes Graduated in Law from the Catholic University of Pernambuco (UNICAP); Specialist in Human Rights by the Federal University of Paraíba (UFPB); Lawyer of the International Human Rights Program (MNDH/NE and GAJOP). Sébastien Conan Graduated in European Law from the University of Rennes, France; Specialist in International Law from the Catholic University of Louvain (UCL), Belgium, with whom participated in the Concours Charles Rousseau of Public International Law in 2001. Works in the International Human Rights Program (MNDH/NE and GAJOP) since 2003. Co-editor of this publication. 7 Independence of Judges in Brazil - Relevant aspects, cases and recommendations 8 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Summary Presentation ......................................................................................................... 1 1 Jayme Benvenuto Lima Jr. Executive Summary .............................................................................................. 17 PART I: Reflections on the independence of judges The Crisis of the Judiciary in Brazil ....................................................................... 2 1 José Eduardo Faria Independence of judges and international human rights ...................................... 4 7 Sébastien Conan The Brazilian Judiciary and the lack of independence of judges as a reflect of the judicial system in Brazil ......................................................................................... 8 1 Marisa Viégas e Silva 9 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Violation of the principle of natural judge and protection of human dignity: a concrete case study ..........................................................................................................109 Luiz Mário de Góis Moutinho and José Viana Ulisses Filho PART II: Cases of violation to the independence of judges Presentation .......................................................................................................125 Rivane Fabiana de Melo Arantes Reports of cases. ..............................................................................................129 PART III: Recommendations Recommendations ..............................................................................................187 ANNEXES 1. Basic Principles on the Independence of the Judiciary ..................................198 2. The Bangalore Principles of Judicial Conduct .................................................207 3. Model of complaint to the UN Special Rapporteur.........................................221 Presentation of the participating organizations .................................................225 Aknowledgement .................................................................................................231 10 Independence of Judges in Brazil - Relevant aspects, cases and recommendations Presentation The question of the independence of judges is one of the most troublesome today in Brazil, as a result of a perverse historical accumulation of mistakes and incongruities on the formation and development of the Judiciary Power. This subject raises as a core issue in the perspective of the monitoring of human rights in Brazil, with the support and the participation of the international community, especially the United Nations. This justified the efforts made for elaborating this report-book entitled Independence of Judges in Brazil: relevant aspects, cases and recommendations. This publication is composed of four introductory articles aiming at structuring the subject with regard to Brazil nowadays: The Crisis of the Judiciary in Brazil, by José Eduardo Faria; Independence of Judges and International Human Rights, by Sébastien Conan; The Brazilian Judiciary and the lack of Independence of Judges as a Reflect of the Judicial System in Brazil, by Marisa Viégas e Silva; and Violation of the Principle of Natural Judge and Protection of Human Dignity: Concrete Case Study, by Luiz Mário de Góis Moutinho and José Viana Ulisses Filho; the two last mentioned authors are part of the Association Judges for Democracy. This introductory part is followed by the report of 37 cases presented by partner’s human rights organizations, in order to enhance the practical relevance of the work of 11 Independence of Judges in Brazil - Relevant aspects, cases and recommendations monitoring violations in that field, as well as to highlight the imperative of establishing a democratic system of judges´ activity control. The publication also includes conclusions and recommendations elaborated through a consultation’s process of partners´ entities from several Brazilian States,
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