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BRAZIL
JUSTICE YEARBOOK 2012
Who’s Who of Brazil’s high courts
An X-ray of the Brazilian justice system
CONJUR EDITORIAL
T H E Y E AR O F JUS T ICE
The Hour of Reason As in an obstacle race, the judicature overcomes malfunctions and flaws while incorporating modern management methods
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round 80 million cases are in progress in the Brazilian judiciary fore three instances, possibly four in cases involving constitutional issues. When former Supreme Court Chief Justice Cezar Peluso submitted his proposal to reduce the judicial path to only two instances, he was fully aware of the obstacles he was about to face. Basically, the proposal involved making the appeal to the Supreme Court (STF for short in Portuguese) and to the Superior Court of Appeals (STJ) into a kind of action for relief of judgment. Among the many
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proposal was not even well received by the Supreme Court. Out of the seven justices interviewed by the 2012 Justice Yearbook only one agreed with Peluso’s idea, albeit with reservations. All justices, however, pointed out the proposal’s merits: Peluso based his reasoning on the need for judicial decisions to have ef-
fects without having to go through four instances, and consequently, forcing citizens to endure long waits, sometimes even decades, for their rights to be granted. His idea raised the issue on the lack of effectiveness of justice in Brazil and triggered the debate on the need to streamline judicial proceedings. Due to the sanction of Law no. 11,417/06, that governs the procedure for the approval of the Binding Precedent and of Law no. 11,418/06, which governs General Repercussion in cases submitted to Supreme Court decision, the number of appeals assigned to the Supreme Court justices has dropped sharply: from 113,000 assigned in 2007 to 38,000 in 2011. It is hard to measure the decrease in demand brought forth by the enacted prec-
turn, General Repercussion is the instrument that enables the Supreme Court justices to choose, among a group of issues found to be fundamentally equal, a single one to be judged; the result being valid for the whole group and binding decisions in all of the country’s lower courts. With regard to STJ, Law no. 11.672/08 created a special proceeding for the trial of cases whose briefs repeat themselves at the hundreds or even to 2010, although the scenario did not repeat itself in 2011, and once again, the Court received almost 300,000 appeals. is undeniable. But they have failed to reach the lower courts. Reduced demand in the Supreme Court has not yet translated into the settling of cases at lower courts. So what will it take for this to happen? Streamlining and managing the trial agenda are at the top of the list.
According to the Supreme Court, the effectiveness of General Repercussion is undeniable though its effects have not yet reached lower courts
Until the sanctioning of these laws, preceded by a constitutional of the new instruments available. “We have acknowledged the General amendment, even if millions of Repercussion of several issues, thereby staying cases in progress in all Brazilians had the same claim to Justice Gilmar Mendes, interviewed by the Yearbook. As he has mengo through all the instances of the fect has made things far simpler. Provided the Supreme Court renders its opinion to this end, the right determined by the court must be applied even at lower courts, thereby settling the dispute. Otherwise, a procedure may be brought directly to the Supreme tion of the Binding Precedent. In turn, General Repercussion is the instrument that enables Supreme Court justices to choose which issues will be decided on, and, once decided, will be decided by all lower courts in the same way. In
of relevant issues. All justices heard, including from other courts, agree that the Supreme Court needs to prioritize the trial of cases involving General Repercussion. in relation to the trial agendas, and the much-wanted streamlining of the jobs for the two weekly sessions of the en banc Supreme Court to produce better results. “We even have to improve the issuance of the us. And we should also get back to the precedents and pay due attention gressing from one instance to the other and adds legal safety and guidance for the courts,” Gilmar Mendes claimed. In the pursuit of rationality in these sessions, Justice Luiz Fux is even favorable to the establishment of periods for each justice to give his opinion. He believes it is necessary to implement procedural management number and with faster en-banc
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SU PREM E COURT
CHIEF JUSTICE
Two Years in Seven Months The justice stepped into the position of court chief justice in April and is ready to close with a flourish his career of nearly a decade in the Judiciary
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low a vanguard Constitution to the Supreme Court (STF for short in Portuguese). He will not become “a backwards Constitution” due to a lack of courage to of mandatory retirement, on November 18. Nevertheless, no take bold decisions. And this is one doubts that his seven months in charge of the high court will be mo- not to be confused with pracmentous – especially with regard to the conduct of the National Justice ticing judicial activism, which Council (CNJ). he criticizes. As a CNJ enthusiast, he believes the entity has come to reorganize To him, the Supreme Court customs. He has said on many occasions that delivering the correcwould usurp the powers of the be a setback. He said if he were the reporting judge of the actions of legislative power. What the Suthe Brazilian Judges Association (AMB), who opposed the power of preme Court does is to apply the National Justice Council, none of the injunctions limiting the the Federal Constitution on that purview of the Council would have been granted. It is because of which does not depend on spethese ideas that he believes that the correctional attribution of the entity should be strengthened. he cited the decision that banned Ayres Britto witnessed in early 2012 one of the ideas he thought nepotism in the three powers. up in 2006 in the Superior Electoral Court, when he tried to block “Nepotism shatters the principle of impartiality, among others. idea was to bar politicians with criminal records from becoming And what is impersonality? It is a radical separation between adCode and the Law of Administrative Misconduct” he cannot claim ministration and administrator. to represent the community. With the trial in which the Supreme Administration cannot be misCourt considered the Clean Record Law constitutional, “the seed taken for the manager because planted in the Electoral court took root,” he said. the manager cannot make public He believes that one of the powers of the Supreme Court is to administration an extension of interfere in the course of life, the airing of customs, the renewal of paradigms in broadening culture. More than that, it must not al- ciple of impersonality was created
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STF
STF
NAME
CARLOS AUGUSTO AYRES DE FREITAS BRITTO AGE
69 (11/18/1942) PLACE OF BIRTH
Propriรก (Sergipe)
EXPERTISE
Constitutional Law
TOOK OFFICE
Ayres Britto CHIEF JUSTICE
6/25/2003
RETIREMENT
11/18/2012
APPOINTED BY
Luiz Inรกcio Lula da Silva ORIGIN
Law
TITLE
Chief Justice
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SUPERIOR COURT OF AP PEA LS
Ups and Downs Demand increases again and threatens original court authority of standardizing precedents in the country
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he Superior Court of Appeals (STJ for short in Portuguese) is the country’s highest court for matters regulated by statutory laws. Only cases regulated by the Federal Constitution and some exceptional cases, such as petitions for Habeas Corpus or lawsuits against senior government authorities reach the Brazilian Supreme Court. lining movement to simplify procedures and eliminate the overlapproblems were solved, new ones took their place. And the volume of statistics, which had plummeted, began to rise steadily again. At the end of 2010, the Superior Court of Appeals had almost through the “Law of Repetitive Appeals,” which forbade appeals computerized cases. However, the cases began to accumulate rapidly once again at the beginning of 2011. A total of 291,000 cases vious year). To make matters worse, judges judged less: 317,000 cases were tried in 2011, against 330,000 in 2010. MANAGEMENT
Felix Fischer Gilson Dipp INSPECTOR GENERAL OF THE João Otávio l DISCIPLINARY BOARD OF COURTS de Noronha INSPECTOR GENERAL l Francisco Falcão CHIEF JUSTICE l
DEPUTY CHIEF JUSTICE l
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ingly real possibility that the work load may become unfeasible as a result of the onslaught of cases. Justice Marco Aurélio of the Supreme Court, concerned with the amount of Habeas Corpus petitions that he was receiving with complaints about the wait to be heard at the Superior Court of Appeals, proposed increasing the amount of appellate judges from 33 to 66.
court received Habeas Corpus case number 200,000. For 19 years, from 1989 to posal was refused but it was the 2008, the Superior Court of Appeals had received a total of 100,000 HC petitions. of measures to get STJ moving. Habeas Corpus petitions a day.
three times to discuss the in-
S TJ
SUPERIOR COURT OF APPEALS
Lawsuits
2009
2010
2011
Assigned
292,103
228,981
290,901
Judged
328,718
330,283
317,105
Pending
212,446
192,802
235,446
jected in November, however, in September the judges stated that increasing the amount of appellate judges would be the last resort. One of the those somewhat in favor of increasing the amount of judges was former Chief Justice Ari Pargendler, but not in the way proposed by Marco Aurélio. To Pargendler, the Superior Court of Appeals should create a 4th Chapter composed of ten
ministers and the authority to judge social security and labor matters. “A greater increase than this would be completely argument against increasing the bench is that it would compromise the constitutional attribution of the court to standardize the interpretation of federal law.
edents. For the purpose of the court, the larger it gets, the worse it judge presented to the court administrative and legislative solutions to speed up the court’s work. “If we have the political willpower to implement these measures, we can make the court meet the demand. For example, the case law preventing appeals would be able to handle a good number of appeals,” stated Salomão. Amendment 14, which transferred from the 1st to the 3rd Chapter the authority to judge matters under Social Security Law. Even without reassigning cases, the change is a relief if considering the 2 01 2 J USTI C E Y E A R B O O K CO NJUR
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PO INT O F V IEW
Justice for the Judicial Power BY ANTONIO BIAS BUENO GUILLON
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t the opening of the judiciary year in February, Justice Cezar Peluso gave a speech that should be remembered and reread. With facts and numbers, the former Chief Justice of the Brazilian Supreme Court showed that in no other period of history has the country had such a productive, transparent and present judicial power. of his factual description with the popular perception instigated by repeated news reports claiming alleged and vague discrepancies that in the eyes of the people seem true. The figures shown by the judge are astonishing. The first, which confirms the rising trust of the population in the justice department, is the surge in demand – 18.2 million new cases in 2011. As a result, the judicature signed off more than 16 million verdicts, 4% more than the previous year. 2012 Justice Yearbook, produced with the support of the Armando Álvares Penteado foundation as a contribution of the school to society, also confirms
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Antonio Bias Bueno Guillon is a lawyer and CEO of the Armando Álvares Penteado Foundation (FAAP)
We need to separate the judicial power’s problems from those of the country
these indicators. Year by year, the volume of new cases filed is compared to those judged. The result of each new tool created to reduce sluggishness and expand the effectiveness of the decisions boosts the progress of legal security. Each new initiative is designed to reduce irrationality and standardize successful practices – a field in which the National Justice Council had, and continues to have, a prevalent role. Everyone, including Peluso, has no doubt that the judicial system is still far from perfect. But it will be a lot easier to correct the flaws by first separating the problems of the judicial system from those rooted in the country’s structure. Requiring a judge to take on the role of legislator, police, public prosecutor or to apply the anachronistic rules of public service is a good way not to fix anything. tic in order to be useful. No matter how much the press ponders over the anxieties of the population and the citizens dwell over their anxieties for a better life, they must all first and