Author: Maria Tereza Sadek

Source: O Estado de S. Paulo, 11/02/2009

Innovate to judge faster and better


Piles of paper, inefficiency and slowness are inseparable features of the image of Justice. The portrait leads to discouragement for its longevity and foreshadowing impending disasters, capable of affecting its democratic coexistence, not to say civilized.


The reasonable duration of the process is a value incorporated in national and international legal documents. Its parameters are not the same as those of the time span that guides the popular imagination about Justice. The time of Justice is, and has solid reasons for being, differentiated. It cannot be the time of news or the desire for revenge. It is an acceptable time, bounded by respect for the requirements of due process. It is not, therefore, time that stretches indefinitely. It is not time that favors impunity, promotes disrespect for the law, benefits the debtor, the malefactor. In a nutshell, the time of Justice cannot be the time of non-justice.


The situation of the Brazilian Justice is dramatic. Their times surpass the limits of reasonability. According to data from the National Council of Justice (CNJ), 60% of cases are not analyzed in the year in which they are filed. The procedural movement is extraordinary. The volume of lawsuits in all branches and instances is remarkable, indicating high rates of litigation. Congestion rates are significant, despite the significant number of decisions, indicating that the courts have not been able to respond to society's demands.


This mismatch between demand and supply has the potential to disrupt the social fabric, but it can also cause the bankruptcy of the State Justice itself.


Diagnostics have been developed. Although the records are neither complete nor entirely consistent, they are able to overcome “guesswork” - previously, the only basis for diagnosis. Today, it is known, with data support, where the bottlenecks are, which are the main litigants, which are the matters and, more importantly, the effects of changes introduced in the procedural system and in the structure of the Judiciary.


In addition, just as important as the possibility and commitment in the elaboration of diagnoses is the fact that the number of legal operators critical of the present situation has grown. The word “crisis” was so closely associated with Justice that proposals for change became viable. The most relevant was the Constitutional Amendment (EC) 45, of December 2004.


The reform of the Judiciary (and of the other institutions of Justice) brought about important changes and gave rise to the use of instruments capable of altering the status quo in the structure of the Judiciary, in time and in the quality of jurisdictional provision. The institutes of the binding summary, general repercussion, repetitive appeals and transcendence allow courts to have greater control over the agenda of judgments and accentuate their role as Courts focused on matters of general interest, thus retracting their role as another appellate body. for individual, repetitive, low collective litigation.


The superlative dimension of the problem imposes solutions that transcend voluntarism and the insistence on tried and tested devices that have proved to be of low efficiency. It is known that “the most of the same” is only a palliative that would not prevent the problem from taking over, in the medium and long term, if not the same dimension, an even bigger one.


EC 45 opened space for the implementation of changes of an institutional nature in the Judiciary. In this dimension, the binding summary, the general repercussion system, the Law of Repetitive Resources and the transcendence criterion qualify. These expedients began to be used and have already caused significant changes in the profile of the courts, in the volume of cases and in the quality of the sentences.


Indeed, the Federal Supreme Court had its agenda significantly reduced (by 40%) with the implementation of the general repercussion. As important as the decrease in the number of cases and the resulting increase in speed is the fact that the Court has acquired conditions to define its agenda and strengthen its role as a constitutional court.


At the opening of the 2009 judicial year, Minister Gilmar Mendes emphasized the importance of innovation: “The untying of the Gordian knot that imprisoned the Court in the weird task of appreciating unfeasible or unfounded resources imported not only greater quality in the decisions handed down, but also more dynamism and bringing society closer together, with evident gains in citizenship relations and the strengthening of the Democratic Rule of Law. ”


At the Superior Court of Justice, the Law on Repetitive Appeals led to a 16,4% reduction in the number of special appeals received by the court between 2006 and 2007. According to data from the 2008 balance sheet, the volume of special appeals received and distributed began to decline. from the month of September, when the law started to be effectively applied. In this 4-month period, the reduction was 38% compared to 2007.


Among the upper courts, the Superior Labor Court has been more resistant to innovations. The 45% increase in productivity, announced at the end of the year, ends up masking the reality that there was an increase in appeal demand - in the order of 13%, from 2007 to 2008, with a tendency to grow - and that palliative measures to increase will not solve the problem arising from the current model.


It is certain that the innovations of the EC 45 are far from having achieved all the effects contained in its potential for transformation. However, it can be argued that a process has begun, the development of which will more clearly define the profile of the higher courts and lead to the appreciation of first and second degree decisions. More importantly, they will help to combat delays and improve the image of justice.


Maria Tereza Sadek, political scientist, professor at the Department of Political Science at USP, is a senior researcher at the Brazilian Center for Judicial Studies and Research