Solutions for procedural slowness

Fernanda Farina - June 23th, 2011

FARINA, FERNANDA M. Q. Solutions for procedural slowness. Valor Econômico, São Paulo, June 22 and 23, 2011, Legislation and Taxes, p. 02.

Certainly the most current concern of all legal operators, especially the country's legislature, is with regard to the speed of proceedings in our Judiciary. The question is undoubtedly very important. Now, there is no way to talk about real access to the Judiciary and, directly to Justice itself, when a litigation brought by the citizen to the State takes almost (or more) two decades to be solved. This, since what really wants to be exercised in access to the Judiciary is not simply access, the process itself, to deal with it. What the citizens seek when entering this power is the realization of their material right of what they feel entitled to. And this is what must be understood as true access to justice; that the proceedings have a reasonable duration, that the outcome of the proceedings does not take ten or twenty years to reach. For example, a victim of traffic accident does not seek the Judiciary with the intention of obtaining a sentence saying that she is entitled to compensation against the one that caused the accident. She seeks her own compensation. And this material result can only come with the execution of the judicial decision at the end of the process. The so-discussed Proposed Constitutional Mention (PEC) of Minister Cezar Peluso, called PEC dos Recursos, seems to seek exactly a possible solution to the problem of the procedural slowness of the Brazilian judiciary. To that end, it allows decisions handed down by the courts to be enforced, even if a special or extraordinary appeal was received in the same case. Only the search for celerity would be praiseworthy measure of this proposal. But what the PEC of Resources really has at its core, and which is of paramount importance, is the irrigation of the constitutional function of our country's high courts, which has long been distorted by the forensic custom of our operators. The higher courts, especially the Constitutional Court, come up with the specific purpose of standardizing the interpretation of constitutional and infraconstitutional norms. It is a consequence of the way in which the Brazilian juridical ornament is organized and how it is necessary that the State, observing the constitutional principle of isonomy, guarantees the same application of the legislation for all the members of the nation. In this sense, how could a citizen in Amapá be treated differently from the citizen of São Paulo in the application of the same federal legal norm? This is what could happen if we left only the regional courts to interpret the order. In this sense, the resources provided for the higher courts in our Constitution must be observed more as a result of the federalist policy of the nation, in the interest of maintaining a cohesive legal order, and of carrying out, in a broader way, the principle of isonomy and impersonality of the jurisdiction of the parties, rather than a form of attack by the parties, irresigned with the decision of the national court, to reform it. We will have the situation of reform of the concrete case, only as a direct consequence of the judgment of the extraordinary appeal, be an extraordinary appeal strictu sensu, judged by the Federal Supreme Court, or the special appeal of the Superior Court of Justice. That is, in case there is a dispute regarding interpretation of constitutional or federal law, if the assumptions of propriety are fulfilled, there will be a discussion in an extraordinary appeal. And if the understanding of the High Courts is different from the one adopted by the High Court, it is possible that the factual situation will be reflexively modified. But, it should be noted, this is an eventual consequence of the judgment of the extraordinary, not a common form of challenge. Accordingly, an inescapable conclusion is that the right to a double degree of jurisdiction does not include the High Courts. Extraordinary and special appeals, respectively within the jurisdiction of the STF and STJ, are not ordinary appeals, and those courts can not be considered mere appeals. The custom of Brazilian lawyers must change to understand that the higher courts are not third and / or fourth degree recursal. They are more than that: they are guardians of the Charter and federal legislation. And to exercise their role - of relevance - efficiently and effectively, the cases to be analyzed there must be as the name says, special and extraordinary. We should therefore congratulate the legislator on the initiative of the PEC of Appeals, as it does not come as a malaise, as a way of dismissing the higher courts. It comes to try to bring back the true nature of these judges and to perhaps accelerate in a special extraordinary way the processes that process in our judicial system. Fernanda Mercier Dear Farina, she has a master's degree in civil procedural law from the University of São Paulo and an advisor to the Superior Court of Justice.