Source: Legal Consultant - SP - 17/08/2009

Today it is fully possible to measure the activity of the Judiciary and statistics is undoubtedly the great ally of planning. The statement is from the president of the Supreme Federal Court, Minister Gilmar Mendes, who during a debate at the Federation of Industries of the State of São Paulo (Fiesp) presented an encouraging diagnosis for the future of the Brazilian Judiciary. The event took place this Monday (17/8).

The minister pointed out that the effectiveness of the courts is being measured by objective criteria that reveal not only the efficiency or inefficiency in dealing with the process, but also how much is spent on personnel, current expenses and investments, and, especially, if such expenditures are adequate, necessary and effective. Gilmar Mendes attributed this measurement to Justice in Numbers, a survey carried out by the National Council of Justice itself.

The president of the STF also spoke of Meta 2, which provides for the trial until December of this year of all cases distributed in the courts until December 31, 2005. “Today, the courage to overcome the rhetoric of the impossible already reveals to Brazilian society some valuable fruits, of which the most striking evidence is the fact that the Brazilian Judiciary already equals the number of cases judged to the number of lawsuits filed. Compliance, before the deadline, by most of the Meta 2 courts, demonstrates that, very soon, long-lived cases will be nothing more than residual cases, a mere exception and not the rule, as recently, ”he said.

Practical solutions

The minister again spoke about the use of Conciliation as a way to resolve conflict. Gilmar Mendes reinforces that this culture must be seen as a measure of rationalization that contributes to pacification and the reduction of inequalities. He also pointed out that creativity and initiative are the watchwords. "There is a lot to do, even if there is no increase in structure and expenses". In other words, the minister meant that there is no point in buying new shoes if the foot is swollen.

Still on this point, the minister emphasizes that it is necessary to face the culture of excessive judicialization, another mistaken bias resulting from the failed model of inoperative or ineffective State.

Even with good expectations for the future, Gilmar Mendes did not fail to criticize criminal justice. For him, the carelessness with criminal proceedings and with the prison system “turns out to be counterproductive. Without speed in criminal prosecution, impunity is reached and the resulting increase in crime. The lack of policies aimed at the reintegration of the ex-prisoners in the penitentiary system is notoriously and directly consistent with the recurrence ”, he highlighted.

Read the full speech

Gentlemen,

You know well trained audience, formed by the country's business leadership, that while pessimists wait - and often complain - optimists act, usually doing it in prospective ways. And all because they feel that it is necessary to believe in the dream and act to produce the desired reality.

For this reason, gentlemen, based on the vigorous and planned action of the National Council of Justice and the expressive results resulting from it in such a short time, I dare to say that the Judiciary, as it transforms, already begins, under its scope of action, transforming the country. At the same time, the collapse of what seemed to be the most ingrained myth is approaching: the secular and vexing procedural sluggishness that many deleterious effects produced, among which is that of having molded, in the popular imagination, the idea of ​​a Judiciary dead, unpredictable, elitist and hermetic. This discredit spread to the point of encouraging the very transgression of the law and the creation of para-legal or anti-legal models.

In fact, as has been observed by the CNJ in the various programs and ongoing actions, a flawed justice system tends to flow into situations or solutions that are absolutely contrary to what the rule of law advocates.

I cite the example of a state that, either because of the inefficiency in investigating homicide cases or because of the lack of judgment of the few investigated, leads the statistics on the crime of command. It is also an effect of the absence of the judge-state, in another unit of the Federation, the conception by the Secretariat of Security, of a system for the identification of inquiries of defendants considered, by the police authority, as most dangerous - the so-called black cover investigations -, a mechanism that was developed, in the face of the ineffectiveness of the Judiciary, to replace that of legitimate criminal prosecution, which demands a condemnatory sentence.

Today, it is known that, in the federative units where the precariousness of the judicial system and the prison system is most evident, subsystems are common in which the ends justify the means, in the old-fashioned formula of justice.

Well, in order to change this situation and overcome inertia, caused in part by the greatness of the undertaking and in large part by victimistic and passive attitudes - such as “the problem is not mine” - the CNJ has been using several instruments.

Strategic planning is no longer an initiative of a few courts and takes on a macro perspective, starting from common concepts of mission, vision and values ​​and choosing strategic objectives to be pursued by all Courts in the country. With the consolidation of this common commitment, all the bodies begin to specify their goals and indicators based on the major elected objectives, and from a multi-annual perspective. The idea is to face the challenge of modernizing judicial activities, making the necessary investments responsibly and without the nefarious continuity solution that occurs every biennium, when the administrations in the courts are renewed.

Today it is fully possible to measure the activity of the Judiciary. Statistics is recognized as a great planning ally. Courts and their units have been measuring their effectiveness using objective criteria, which are improved every day. Criteria that reveal not only the efficiency or inefficiency in dealing with the process, but also how much is spent on personnel, current expenses and investments, and, mainly, whether such expenses are adequate, necessary and effective.

This measurement of the Judiciary's activity, which is revealed through the “Justice in Numbers” and “Open Justice” systems, is under the responsibility of the Department of Judicial Research - DPJ - and of a Committee of Notables, constituted to carry out the evaluation of the numbers collected and their crossing with other indicators, including social indicators, in order to identify new challenges and priorities to be faced. Photography is no longer enough. It is necessary to interpret what is gathered from information. But it is certain that today we have more and more information.

It is based on the numbers and the implementation of unified procedural tables, classes of processes, subjects and movements that today we know, for example, where there is greater congestion; what stages of the process need to be restructured; that legal issues are having a greater impact on first-level courts and tribunals; where there is a greater need for investments in information technology; where spending on personnel is consuming all the capacity to modernize services.

Based on these data and their first interpretations, the Courts defined, for the year 2009, in an unprecedented commitment of concentrated effort, 10 major leveling goals, among which are actions aimed at computerization - such as access to the global network, interconnection of units , making procedural information available on the internet, automating distribution and implementing an electronic process -, and there is also the well-known Goal 2, which directly challenges the much-criticized slowness of the Judiciary.

It is a pact to identify the oldest cases and to judge all those that, in each court or tribunal, were distributed until December 31, 2005. The goal is audacious, challenging, and its implementation, led by the National Council of Justice, has brought a series of beneficial reflex effects, among which a major cleaning in the databases - a condition for consistent projections - and a mobilization never seen in the scope of the entire Judiciary Power, a factor that, without a doubt, will pave the way the way and will feed the spirits for the new goals that will be established in common agreement for 2010.

Today, gentlemen, the courage to overcome the rhetoric of the impossible already reveals to Brazilian society some valuable fruits, of which the most striking proof is the fact that the Brazilian Judiciary already equals the number of cases judged to that of filed cases. Compliance, before the deadline, by most courts, of Goal 2, demonstrates that, very soon, long-standing cases will be nothing more than residual cases, a mere exception and not the rule, as recently.

The emphasis on improving the service of providing justice, the main aspect of which is consistent with the quality management of staff and public resources, goes, obviously, to mere expansionism, translated into an increase, ad nauseum, of the physical structure and staff of staff. Creativity and initiative are the watchwords. There is much to be done, even if there is no increase in structure and expenses.

It is also necessary to face the culture of excessive judicialization, another mistaken bias resulting from the failed model of inoperative or ineffective State, in which the Judiciary becomes a natural outlet for citizens' expectations - in the Brazilian case, reaching the significant level of a third of the population.

We need - and this is an especially fertile forum for this discussion - to rethink the current model, which sees the filing of lawsuits and the indefinite interposition of appeals as the only ways to resolve shocks of interests. Alternative mechanisms, gentlemen, can and must be created.

Along this path, the CNJ has made efforts, together with public agencies and private institutions that lead statistics such as defendants or even plaintiffs in lawsuits, to rethink their action and defense strategies. The eternalization of conflicts already definitively judged, on their merits, by the courts, or the purely formal defense in court, disconnected from their usefulness, does not contribute to legal certainty.

The extension of the effects to future cases, on issues already decided, before new demands arise, is a measure of rationalization that contributes to the pacification and the reduction of inequalities. It is possible to obtain, by means of prior conciliation systems, the solution of issues that, just by coming to court, tend to produce greater conflict in social relations. Although it seems easier to transfer the mission of pacifying the conflict itself to a third party, the truth is that the loser, in the process, is hardly convinced. The solution reached by agreement, on the contrary, in addition to being pacifying, tends to generate greater commitment to the agreement, opening space for more solid social and professional relationships.

This is a path that states like São Paulo should pursue. To stay within the scope of Labor Justice, we have here in the state, distributed among the TRTs of São Paulo and Campinas, 22,8% of the number of labor magistrates in the country and 35,5% of the volume of pending cases from all over the country. Labor judiciary. In 2008 numbers, there are 1.080.943 cases pending here, only in the Labor Court. And the trend in the last four years has been to increase the number of new cases: 15% in the TRT of São Paulo and 37,7% in the Campinas region. It is evident that litigation needs to be faced with other ways than just the Judiciary. It is high time for an articulation between businessmen, workers' unions and governments in the search for alternative ways to judicialization, because no one is interested in the conflict. The challenge I pose to you, who make up the country's business leadership, is to design new solutions, considering, obviously, how much is already consolidated by the laws and the jurisprudence of the courts.

I bring to you the good news of the mobilization of the courts of São Paulo for the modernization of your services and the revision of old paradigms. Although about 30% of the country's cases reside here and, consequently, a similar amount of old achievements, achieved by Goal 2, the local courts are making a great effort to meet the goal and fully computerize and modernize their cases. services. Inertia was broken, here and in the entire Judiciary, with the awareness of how much it is possible to accomplish by the hands, with a planned action and integrated to the efforts of the other courts of the country. The mission is known to be great, the path is a lot of work, but the size of the challenge is already known, because today it is measured. The candles are adjusted.

Gentlemen, quality management goes beyond the application of resources in the improvement of control and inspection instruments. Creative solutions have been shared across the national judiciary, in order to successfully meet the leveling targets designed with the aim of gradually eliminating the unacceptable inequality between the different segments of Brazilian justice.

When the Judiciary operates efficiently, putting obsolete and unproductive practices in check, it is also revolutionizing the public service delivery model. In other words, when the functioning of the Judiciary is profoundly affected, as well as the functioning of organs essential to the administration of Justice, such as the Public Ministry, the Public Defender's Office and the advocacy as a whole, an authentic partial reform of the Brazilian state. Hence why the assertion that the recovery of the Judiciary's efficiency has repercussions, in geometric proportions, improves the Brazilian State as a whole, creating a new posture, in a kind of positive culture of good procedures, is not exaggerated.

This efficiency, of course, also prevents or dissuades actions outside the law, because it overturns the mistaken and pernicious fantasy that public service in Brazil is slow, expensive and made to not work.

In this light, the example of criminal justice is one of the most representative. Carelessness with criminal proceedings and with the prison system turns out to be counterproductive. Without agility in criminal prosecution, impunity is reached and the resulting increase in crime. The lack of policies aimed at the reintegration of the egressed prisoners is notoriously and directly in line with the recurrence.

Precisely because it presents itself as a hot spot, this was one of the first action fronts of the National Council of Justice in its current administration. We started with the prison task forces and implemented technological modernization actions. However, in addition to the phase of mapping diagnoses and immediate solutions, it is now concluded that prophylactic measures, crime prevention actions are urgent, rather than merely repressive policies - and that society as a whole is challenged to participate, especially when it comes to the segments most apt to do so, like this Fiesp.

The Start Again program, despite having been very well received by the most diverse segments of society and having an effect on the Brazilian State as a whole, leading in a certain way to the aforementioned partial reform, appears to be small considering the size of the problem to be solved and the means available to do so. I dare to use a metaphorical resource to try to dimension it here: there is an urgent need to implement a kind of “Fundef” aimed at the prison segment, in order to untie once and for all the intricate knots of national Public Security.

As is known, it is not just the problems of the criminal and prison system that the CNJ deals with. Several other coordinated actions have been undertaken, seeking to endow the judicial service with efficiency. Certain issues, however, call for more direct action. This is the case, for example, of land grabbing in the Amazon, which would hardly have achieved effects such as the fallacious duplication of the territory of Pará, without the action of the registry offices and the lack of inspection by the Judiciary.

With such paradoxes the CNJ is faced day by day, which today chooses transparency, at the same time, as a tool and goal in itself. Currently, the duty and right of citizenship itself, there is no way but to demand nothing less than total transparency in the conduct of expenses and revenues and in the jurisdictional activity itself.

The CNJ seeks, on several fronts, shortcuts to make transparency possible. So it is with the publication of your own expenses on the internet. For this purpose, a system is under development that will enable greater publicity for budget execution within the scope of all courts, including state courts, which do not yet have a SIAFI, a system that registers and publicizes expenditures in all federal agencies.

Transparency has the virtue of functioning as an efficient prevention tool. Especially in the face of the superb crisis that affects the Federal Senate today, related in many aspects to the contempt for the importance of transparency; no one is unaware that it is necessary to move beyond the traditional model of seeking correction, often late, of fait accompli. And the simple duty of transparency, in itself, is worthwhile, it is worth repeating, an effective tool for preventing slips.

Anyway, gentlemen, the future designs an integrated, organized, reliable, accessible, proactive and transparent Judiciary. This consolidates the democratic foundation of the country's rule of law, not least because an efficient judiciary is a sine qua non for minimizing the socioeconomic inequalities that both plague Brazil's image, internally and externally.

Much more can be achieved with coordinated action and the harmony of movements between the three branches of government, a picture that is already outlined by the agile execution of the actions that were part of the so-called 2nd Republican Pact.

It is true that, if so much has been done in such a short time, enormous challenges still remain, in the extraordinary task of definitively establishing a functioning pattern of the Judiciary that improves our civilizing framework and allows, above all, the construction of a society equal to the that the Brazilian people deserve and need.

Thank you all.