The following is a guest post by Eduardo Soares, a foreign law specialist at the Law Library of Congress who covers Brazil and other Portuguese-speaking jurisdictions. Eduardo has previously published posts about the Brazilian law collection, capoeira and the law, a Law Library report on citizenship pathways and border protection, and highlights of the Law Library’s collection of materials related to the development of the civil law system.
Brazil is a civil law country and its legal system, which has its origin in Roman law, was implemented by the Portuguese during the colonial period. The system is based on codes and legislation enacted primarily by the federal legislature, and by the legislatures of the states and municipalities. Over time Brazil has enacted many codes, which, in sum, are a harmonized union of laws related to one specific legal issue in one single text.
To learn more about the civil law system you may wish to read my previous blog post on its history and development.
As a codified system, it is inevitable that from time to time an update to the codes becomes an absolute necessity. In this regard, the latest update occurred on March 16, 2015, when a new Code of Civil Procedure was sanctioned by Brazilian President Dilma Roussef through Law No. 13.105. (Código de Processo Civil (C.P.C.), Lei No. 13.105, de 16 de Março de 2015.)
The new C.P.C. will enter into force in 2016, one year after its publication in the country’s Official Gazette (Diário Oficial da União) (id. art. 1,045), which occurred on March 17, 2015. The current C.P.C., which was enacted on January 11, 1973 (Código de Processo Civil, Lei No. 5.869, de 11 de Janeiro de 1973), will then be revoked and replaced by the new C.P.C. (Id. art. 1,046.) The one-year waiting period for the new C.P.C. to enter into force is a necessary step that must be taken to allow the judiciary, legal professionals, and society as a whole to adapt to the new law.
1. Why was a new C.P.C. needed?
In an effort to keep the 1973 C.P.C. up to date, many amendments have been made. However, during its existence, several other laws were passed that affected the C.P.C. in one way or the other, including a new Constitution in 1988 (Constituição Federal, C.F.), making it very difficult to reconcile the differences between the old C.P.C. and the new legal and constitutional order.
According to a September 2009 Act of the president of the Federal Senate (Ato do Presidente No. 379, de 2009) establishing a commission of legal scholars to draft a new C.P.C., 64 law changes altering the Code in some way have been enacted since the inception of the C.P.C. in 1973. Furthermore, in 1973, the legal instruments for the protection of fundamental rights did not enjoy the same doctrinal development as they enjoy today. Since then, there has been a major revolution in the structure and role of the Judiciary. In addition, access to justice and a reasonable duration of the process have acquired the status of fundamental guarantees provided for constitutionally.Despite the patchwork of changes over time to the current C.P.C., the greatest criticism of it has always been the many possibilities available to delay the legal process in court. Such maneuvers made judicial proceedings slow and inefficient and final decisions a distant prospect. In addition, the need to adapt the C.P.C. for the new reality of the country required a more expeditious and transparent civil procedure; a civil procedure that could offer the necessary means to achieve the goals of an efficient and effective justice system.
In the words of the president of the Federal Senate during the presentation of the draft of the new C.P.C., what was needed was
… a new C.P.C. that favors the simplicity of language and procedural action, the celerity of the process and the effectiveness of the result of the legal action, in addition to stimulating innovation and modernization of procedures, ensuring respect for the due process. (Senado Federal, Anteprojeto do Novo Código de Processo Civil.)
The president of the commission of legal scholars followed this statement by saying
…the general complaint regarding the slow pace of justice brought an alarming increase in the lack of prestige to the Judiciary and the challenge of the commission was to rescue the belief in justice and make real the constitutional promise of prompt and speedy justice.
2. What was the process for promulgating the new C.P.C.?
After several months of work, on June 8, 2010, the commission turned the draft in to the president of the Federal Senate, who later forwarded it to the National Congress. The new C.P.C. was approved on December 14, 2014, after being debated and voted on by the Chamber of Deputies (Projeto de Lei No. 8.046/2010) and Federal Senate (Projeto de Lei do Senado No. 166 de 2010). It was finally signed by the Brazilian President Dilma Roussef and promulgated on March 16, 2015 (Lei No. 13.105, de 16 de Março de 2015). On this date, the president also issued a veto message (Mensagem No. 56, de 16 de Março de 2015), which vetoed seven items, including articles, or parts of an article, of the new C.P.C. The reasons for vetoing the measures were explained in the message, including that they could potentially cause delays in the decisions of cases, contrary to the purpose of the new C.P.C.
3. What are some of the changes in the new C.P.C.?
a. Decisions Issued Observing the Chronological Order of the Cases
Article 12 of the new C.P.C. requires that judges must decide cases in their chronological order, with a few exceptions allowed (art. 12(2)). In addition, a list of the cases (processos) ready for trial must be permanently available for public consultation in the court’s registrar office (cartório) and on the Internet.
b. Mandatory Conciliation and Mediation Hearing
Following the arrangements previously established in the law (Juizados Especiais Cíveis e Criminais, Lei No. 9.099, de 26 de Setembro de 1995) that created the special civil and criminal courts (“small claims courts”) in the country, a conciliation or mediation hearing at the beginning of the trial phase of a case is now mandatory under the new C.P.C., provided that the initial request (petição inicial) filed with the court fulfills all the essential requirements and a prompt dismissal of the case due to the impossibility of the request is not applicable (art. 334).
In alignment with the purpose of the new C.P.C. to expedite the trial of cases in the country, Brazil recently modernized its Arbitration Law (Lei No. 9.307, de 23 de Setembro de 1996, as amended by Lei No. 13.129, de 26 de Maio de 2015) and enacted a new Mediation Law (Lei No. 13.140, de 26 de Junho de 2015). Apparently, these two new instruments were enacted in the hopes that they will help to reduce the number of cases brought to the judiciary, and consequently a decrease in the demand for formal justice. We have published two Global Legal Monitor articles on these new laws, one on the new Arbitration Law and one on the new Mediation Law.
c. Procedural Times
For the purpose of procedural times, the calculation of the number of days established by law or by the judge will only include business days (art. 219), rather than calendar days as used to be the case under the C.P.C. of 1973. Furthermore, with the exception of one specific type of appeal (embargos de declaração), the time frame to file an appeal and to respond to an appeal has now been unified to 15 days (art. 1003(5)).
d. Courts Must Follow the Decisions Issued by the Higher Courts
Article 926 of the new C.P.C. introduced a new approach in the courts by requiring that the higher courts (tribunais) must standardize their jurisprudence and keep it stable, fair, and coherent.
In addition, article 927 determines that judges and tribunals must observe, inter alia, the decisions of the Federal Supreme Court (Supremo Tribunal Federal, STF) regarding constitutionality as well as those decisions deemed to be binding (súmulas vinculantes (“binding decisions“)). The STF is the highest court in Brazil and has responsibility for safeguarding the Constitution as well as functioning as a court of review (C.F. art. 102(III)).
The new C.P.C. also requires trial and appellate courts to observe the decisions issued by the Superior Tribunal of Justice (Superior Tribunal de Justiça, STJ) regarding infra-constitutional matters. Created by the Constitution of 1988 (C.F. art. 92(II)), the STJ is responsible for standardizing the interpretation of federal law in Brazil. It is the last instance court in the Brazilian legal system for consideration of civil and criminal issues not directly related to the Constitution.
With this express approach, it appears that precedent is going to take center stage in the decision-making process for legal matters in the country. A rehearsal for this practice started in 2004, when Constitutional Amendment No. 45 enabled the Federal Supreme Court to issue decisions with a binding legal effect on the entire judiciary.
e. Reasoning Supporting a Legal Decision
According to article 489 of the C.P.C., which lists the elements that compose a legal decision (sentença) and its effects, the judge will have to provide in any legal decision, among other things, the relationship between the law and the case or question being decided. Moreover, while deciding a case, a judge:
- cannot apply undetermined legal concepts without explaining the real reason of their incidence in the case;
- must respond to all arguments put forward in the process, which, in theory, may undermine the conclusion reached by the judge;
- cannot restrict himself or herself to the use of precedents without identifying the determining factors in the precedent, or demonstrating that the case on trial fits the precedent;
- cannot decide not to apply a precedent (enunciado de súmula ou jurisprudência), or a precedent invoked by a party, without demonstrating the existence of a distinction in the case on trial or that the precedent has been overturned.
To ensure the observance of precedent while deciding a case, this change now requires judges to not only apply precedents, but also analyze the relationship between the precedent and the case being decided.
f. Resolution of Repetitive Demands
Pursuant to article 976 of the new C.P.C., appellate courts will be able to resolve, at the same time, many cases that deal with the same legal issue. To initiate the Incident Resolution of Repetitive Demands (Incidente de Resolução de Demandas Repetitivas) there must be both
I – effective repetition of cases (processos) containing controversy regarding the same legal issue;
II – risk of harm to equality and legal certainty.
A request to initiate the procedure must be filed with the president of the appellate court (tribunal)
I – by a judge (juiz ou relator) on an official letter (ofício);
II – by the parties, on a petition;
III – by the Public Prosecutor’s Office (Ministério Público) or by the Public Defender’s Office (Defensoria Pública) on a petition. (C.P.C. art. 977.)
The analysis and decision regarding whether to initiate the procedure are to be performed by the body appointed under the bylaws of the appellate court as having responsibility for the standardization of the court’s jurisprudence (art. 978). The procedure is not applicable to issues under the analysis of another higher court, within its respective jurisdiction, regarding a repetitive legal issue, either material or procedural (art. 976(4)).
A current problem identified within the Brazilian judicial system is the repetition of cases. It is hoped that this measure will save time and resolve repetitive legal issues in a way that all cases dealing with the same issue can be resolved one time only and applied to all other ones. In theory, this new feature, coupled with the use of precedent, will provide more agility within the justice system of Brazil.
g. Procrastinating Appeals Punished with Fines
If the sole purpose for filing an appeal is to delay the decision of the case, a fine ranging from one to 10 percent of the amount of the claim will be imposed.
The different kinds of appeals and the corresponding fines include:
- when an appeal (agravo de instrumento) is dismissed as manifestly inadmissible or groundless in a unanimous vote, the collective body, in a reasoned decision, must condemn the appellant to pay the appellee a fine fixed between one and five percent of the current amount of the claim (art. 1.024(4)).
- when an appeal (embargos de declaração) is manifestly dilatory, the judge of the appellate court, in a reasoned decision, must condemn the appellant to pay the appellee a fine not exceeding two percent of the updated amount of the claim (art. 1.026(2)).
- in case of reiteration of an appeal (embargos de declaração) manifestly dilatory, the fine will be increased to up to 10 percent of the updated amount of the claim, and the filing of any appeal must be subject to the prior deposit of the imposed fine, except for the Treasury (Fazenda Pública) and the beneficiary of gratuitous justice, which must be collected at the end of the case (art. 1.026(3)).
In the past, or until 2016 when the new C.P.C. will enter into force, the best way to gain time and delay the final decision on a case was to file as many appeals as legally possible. The intention under the new C.P.C. is to impose an extra detrimental cost to the appellant and provide financial compensation to the appellee if this practice is engaged in. It is expected that the fines will curb the enthusiasm of losing parties to file procrastinating appeals.
 Although Brazil does not follow the common law doctrine of stare decisis, after the amendment of the Brazilian Constitution in 2004 (Emenda Constitucional No. 45, de 30 de Dezembro de 2004), the STF started issuing binding decisions (Súmulas Vinculantes) in special situations (C.F. art. 103-A). These decisions enable the judiciary to determine in a definitive and final way thousands of cases dealing with the same issue. The issuance, revision, and revocation of Súmulas Vinculantes are now regulated by Law No. 11.417 of December 19, 2006.
After repeated decisions on identical constitutional matters, the STF may, ex officio or upon demand, approve by a decision of two-thirds of its members a decision (súmula) that upon publication in the official press has binding effects on the other organs of the judiciary and the federal, state, and municipal public administrations, both direct and indirect. The STF may also revise or revoke its binding decisions in the manner established by law.
The objective of a binding decision must be the validity, interpretation, and efficacy of determined norms, as to which there is an actual controversy among judicial bodies or between judicial bodies and the public administration, causing serious legal uncertainty and a corresponding increase in cases concerning identical questions (C.F. art. 103-A(1)).
Without prejudice to what may be established by law, approval, revision, or revocation of a binding decision may be demanded by persons with standing to bring a direct action alleging unconstitutionality (C.F. art. 103-A(2)).