The right to retirement of judges and members of the Public Prosecution Service and the punitive power of the State
Translated from the original.
The retirement of Brazilian judges, both before and after the Social Security Reform (Constitutional Amendment 103/2019), falls within the scope of the Public Servants’ Own Social Security Regime (RPPS), provided for in art. 40 of the Federal Constitution. It is a right of a social security nature, arising from a legal bond distinct from the one that ties the public servant — in this case, the judge — to the public office. This social security right arises from a legal relationship established between the State and the public servant as a compulsory insured person, financed through compulsory contributions of a tax nature.
The social security contribution, as recognized by the settled case law of the Federal Supreme Court, is a species of the genus tax, more precisely a social contribution intended to fund social security (Constitution, art. 149 and art. 195). Even though the allocation of such amounts is tied to maintaining the social security regimes, its legal nature leaves no doubt: it is a tax with a specific purpose. This contribution is independent of the public servant’s functional conduct and is mandatory, levied on remuneration during the period in which the public servant is in active service.
Once the constitutional and legal requirements are met — minimum age, contribution time, time in public service, among others — the civil servant acquires the subjective right to retirement, a right that does not present itself as a state favor, but as a social security benefit arising from the legal-tax relationship maintained throughout the working life.
It is essential to stress that the right to retirement does not derive from remaining in office, nor from an ethical or disciplinary assessment of the civil servant's conduct, but from the consolidation of an autonomous social security relationship, distinct from the statutory functional relationship. While the bond to the office is legal-administrative in nature, based on functional and hierarchical duties, the social security bond, which is formed with retirement, is patrimonial, passive, and contributory, governed by the rules of social security law and protected by the principles of legal certainty, legality, and vested rights.
In this context, the commission of an act of corruption, however serious, and even if committed in the exercise of office, does not in itself have the power to extinguish the regularly acquired right to retirement. A criminal conviction imposing loss of public office — a secondary effect provided for in art. 92, I, of the Criminal Code — affects the statutory bond, that is, the possibility of the agent remaining in office, but does not automatically, much less without a final and unappealable judgment with a specific civil effect, affect retirement benefits, which are the fruit of an already constituted social security legal relationship.
The Federal Supreme Court has held that the loss of retirement benefits is not to be presumed, and that the suppression of retirement benefits may occur only where there is express statutory provision and a final and unappealable court decision imposing that sanction on reasoned grounds. Moreover, Brazilian case law recognizes that a retirement regularly granted cannot be revoked as an administrative or criminal sanction, except where specific fraud in obtaining it is demonstrated or where it is expressly declared null by a competent judicial authority.
For this reason, even if a judge is convicted of corruption and loses office by a final and unappealable decision, this does not in itself imply the loss of the compulsory retirement benefits already granted. Such benefits, once recognized as a legitimate social security entitlement, are protected by the legal order, and their revocation requires its own proceeding, adversarial process, full defense, and express legal basis.
In short, an act of corruption or falsity affects the functional bond and may result in the loss of public office, but it does not automatically extinguish the right to retirement, which arises from the contributory social security relationship, based on a tax compulsorily collected over the years. This distinction between the two spheres — functional and social security — is crucial to understanding why a public servant may be held criminally liable, lose office and nevertheless keep retirement benefits, provided they were obtained legitimately and without defects. The falsity, in the case of this judge, was not committed to obtain retirement and, therefore, was not a fraud for retirement purposes.