Institutional Convergence Towards the End of Premium Retirement for the Judiciary

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The Brazilian legal landscape is undergoing a profound transformation regarding the disciplinary regime of the judiciary and the Public Prosecutor’s Office. The convergence between recent decisions of the Supreme Federal Court (STF) and the advancement of Constitutional Amendment Proposal (PEC) 3/2024 in the Senate signals the imminent end of the so-called “premium retirement,” an administrative sanction that, in practice, guarantees the maintenance of benefits to members of the Judiciary removed for serious misconduct or crimes.

The End of the Sanction of Mandatory Retirement and the Understanding of the STF

Historically, mandatory retirement with benefits proportional to length of service was the maximum penalty applicable to judges and prosecutors in administrative proceedings. However, the understanding of the legality of this measure changed drastically with the interpretation of Constitutional Amendment 103 (Pension Reform of 2019). The debate gained renewed force through a decision by Minister Flávio Dino, within the scope of Ordinary Action 2.870/DF.

In that judgment, the minister argued that the Pension Reform suppressed the constitutional foundations that allowed the use of retirement as a disciplinary sanction. By removing the term “retirement” from the provisions governing punishments for high-ranking public officials, the derivative constituent would have expressed a clear desire to extinguish such benefit in cases of misconduct. Thus, the maximum penalty would become the definitive loss of office (dismissal), without the granting of lifetime monthly income.

“As of the effective date of EC 103/2019, there is no constitutional basis for the State to reward with retirement benefits someone who has committed offenses incompatible with the dignity of the judiciary.”

Analysis of PEC 3/2024: Legislative Rigor and New Rules

Following the movement of the Judiciary, the Legislative Branch accelerated the processing of PEC 3/2024. Recently approved by the Constitution and Justice Committee (CCJ) of the Senate, the proposal aims to remedy any interpretive gap, expressly prohibiting the granting of retirement as punishment. The text provides for a restructuring of the punitive process to ensure that society does not continue to finance inactivities resulting from crimes or corruption.

Main Innovations of the Legislative Text

• Removal and Suspension of Remuneration: Unlike the current model, where the magistrate continues to receive salary during the administrative process, the PEC proposes the immediate suspension of payments immediately after the recognition of the serious offense.
• Procedural Speed: Establishes a deadline of 30 days for filing the civil action aimed at the loss of office, preventing injunctions or procedural delays from perpetuating the payment of salaries to those under investigation.
• Termination of the Bond: Dismissal becomes the rule for conduct that previously resulted in paid removal.

The Impacts on Social Security Law and the Issue of Contributions

The extinction of mandatory retirement as a sanction raises complex issues in the field of Social Security Law. Magistrates and members of the Public Prosecutor’s Office contribute with high rates, which can reach 14% of their income. Therefore, class associations such as AMB (Brazilian Association of Magistrates) and Ajufe (Association of Federal Judges) express concern about legal certainty and the right of ownership over the contributions made.

Experts argue that the social security assets accumulated over decades cannot be simply confiscated by the State, under penalty of illicit enrichment of the public administration. One of the legal avenues proposed to balance administrative punishment with social security protection is the migration of contributions. In this model, the amounts paid to the Own Regime (RPPS) would be transferred to the General Regime (RGPS), allowing the punished server to use this time for a future retirement by the INSS, respecting the ceilings and rules common to all citizens.

The Controversial Exclusion of the Military

A point of intense controversy during the vote in the CCJ was the exclusion of the military from the text of the PEC. Currently, members of the Armed Forces expelled for crimes can leave their families the so-called “fictitious death pension,” in which the military is considered “dead” for social security purposes, allowing their dependents to continue receiving the benefit.

The maintenance of this privilege for the military, while tightening the rule for judges and prosecutors, is seen by many jurists as a violation of the principle of equality. Defenders of the measure argue that the family should not be punished for the individual error of the military, an argument that, for critics, could be applied with the same logic to the dependents of magistrates, evidencing a lack of uniformity in the ethical-functional treatment of the State.

Conclusion: Towards the Moralization of Public Management

The convergence between the STF and the Senate around PEC 3/2024 reflects a social clamor for greater transparency and justice in public administration. Although the technical challenges regarding the contributory nature of social security and the guarantee of tenure still demand in-depth debates, the trend is the consolidation of a system where the severity of the functional fault is matched with the definitive loss of the prerogatives and benefits of the office.

The text now goes to a vote in the Senate Plenary and, later, in the Chamber of Deputies. Legal professionals should remain attentive, as final approval will redefine not only administrative sanctions, but also the management of social security liabilities in the Brazilian public sector.