Nunes Marques and Dias Toffoli declare impediment and suspicion in trial against Alexandre de Moraes

Nunes Marques cited his role as president of the Superior Electoral Court (TSE) and the possible impact of the discussion on the elections. “So, as president of the TSE, I do not feel comfortable participating in this trial and I declare my impediment,” he said. He then asked for permission and left the session.

Dias Toffoli reported that, after leaving the reporting of the Master case, he began to declare himself a suspect in the trials related to the case in the Second Panel to preserve the Court. “I also felt obliged to preserve the Court, to express my suspicion for intimate reasons”, he stated. The minister asked to remain there, following the session.

As a result, neither of them will be part of the group of magistrates who will decide whether Alexandre de Moraes should be investigated or not.

Experts interviewed by g1 explain that the justifications invoked by the ministers are included in articles 144 and 145 of the Code of Civil Procedure, which provide, respectively, for situations of impediment and suspicion.

"Impeachment involves objective reasons provided for by law that generate an absolute presumption of partiality on the part of the judge, while suspicion involves subjective reasons linked to personal relationships and feelings that generate a relative presumption", says Francisco Zardo, lawyer specializing in Public Law and master in State Law from UFPR.

"The magistrate is impeded, for example, when a relative of his is a party to the process. The magistrate is suspected, for example, when he is a close friend of one of the parties."

Jonatas Moreth, lawyer specializing in Public and Electoral Law, sectional counselor at OAB/DF and master's student in Constitutional Law at IDP, explains that suspicion is a "mechanism to preserve the impartiality of the magistrate”. According to him, suspicion can involve situations such as intimate friendship or enmity with one of the parties, counseling one of them or commercial and financial relationships.

Impediment, explains Moreth, involves more objective situations, such as the judge having acted in another instance and given a ruling on the same issue. In the lawyer's assessment, Nunes Marques indirectly invoked this concern when mentioning his role as president of the TSE.