Brazil’s Special Jurisdiction for Supreme Court Justices Differs from U.S. and European Models

Brazil stands apart from the systems of several major democracies in how it handles criminal accusations against Supreme Court justices. In Brazil, the Supreme Federal Court itself is responsible for prosecuting and judging its members. In Germany, the United States, France and the United Kingdom, judges of the highest courts generally face the ordinary justice system.

In the United States, an accused Supreme Court justice would ordinarily be tried in a court of first instance. Richard Friedman, a University of Michigan law professor who specializes in the American Supreme Court, says federal judges can be criminally prosecuted and convicted while remaining in office. Removal follows a separate process: “The criminal proceeding is separate.” A judge would have to be impeached by the House of Representatives and convicted by the Senate to lose the position.

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The criminal proceeding is separate.

The case of former Nevada federal judge Harry Claiborne illustrates the distinction. Claiborne argued that his life-tenured position protected him from criminal prosecution before impeachment and removal. The Ninth Circuit rejected that argument, saying that excluding judges from criminal responsibility would place them above the laws they apply. A federal trial court convicted Claiborne in 1984 of falsifying income-tax returns and sentenced him to two years in prison. He remained formally a judge and continued receiving his salary until the House impeached him and the Senate convicted him in 1986.

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Excluding judges from criminal responsibility would place them above the laws they have the function of applying.

Germany uses a different structure. Prosecutors can investigate Constitutional Court judges without authorization from Parliament or the court. Removing a judge is more difficult and requires limited grounds, including a final criminal conviction for dishonorable conduct, a prison sentence of more than six months or a grave breach of official duties that makes continued service untenable.

Rodrigo Cadore, a comparative constitutional law researcher at the University of Freiburg, says the removal decision takes place entirely within the court. Two-thirds of the judges must approve it, and neither the investigator nor the accused may vote. Parliament has no power to decide the impeachment.

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Removal of a Constitutional Court judge occurs only on very limited grounds.