Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
For several years now, the Brazilian courts, especially the Superior Courts, have replicated the practice of denying appeals on the grounds of non-compliance with appeal admissibility requirements, based on formal obstacles and exaggerated rigor. This is the so-called defensive jurisprudence, strongly criticized by the legal profession, and which causes serious damage to the fundamental and procedural guarantees of the courts.
Despite the fact that the CPC/2015 has introduced provisions that help to assess the merits of appeals, mitigating the possibility of applying defensive jurisprudence – for example, the end of appeals being dismissed in the event of incorrect or incomplete completion of the costs form¹ and the possibility of fungibility of special appeals based on constitutional matters², it is still recurrent practice for the courts to use subterfuges, sometimes without legal backing, to dismiss appeals, which can often be credited to the desire to reduce the number of cases submitted to the higher courts.
Undoubtedly, there is a notorious overload of judicial demands in all judicial areas, including the Higher Courts. However, it cannot be ignored that the structural and management conditions of the Courts also contribute to this situation.
Thus, the practice of defensive jurisprudence cannot be adopted as a way of resolving this impasse. Obstructing the analysis of the merits of appeals as a way of relieving the procedural overload is contrary to Brazilian legislation, generating constitutional and procedural offenses.
The understanding already established by the Superior Court of Justice, defending the impossibility of a posteriori proof of the timeliness of an appeal in the event that the existence of a local holiday at the time the appeal was filed has not been documented, applying art. 1.003, §6 of the CPC/2015³ restrictively, is one of the greatest examples of defensive jurisprudence. The same Court ruled in AgInt no REsp n. 1.715.972/MA that even “national” holidays must be proven ⁴, which makes the abject practice even more flagrant.
This is because the wording of art. 1.003, §6 of the CPC/2015 is clear in determining that it is up to the appellant to prove the local holiday, but there is no determination of proof strictly in the act of filing said appeal, which allows us to conclude that the defect would be remediable, as it is when there is irregularity in procedural representation.
The legal profession and the most prestigious scholars understand that such decisions infringe on the constitutional guarantees of access to justice and due process of law, undermining the effective delivery of justice, suppressing the right to assess the merits of the decision that is intended to be modified, which goes against the spirit that the legislator gave to the Code of Civil Procedure enacted in 2015, which strives to reduce unruly formalities that undermine the effective delivery of justice.
The practice of defensive jurisprudence by the courts prompted a manifesto signed by important legal entities: the São Paulo Lawyers Association (AASP), the São Paulo Section of the Brazilian Bar Association (OAB), the São Paulo Lawyers Institute (IASP), the Center for Law Firm Studies (CESA) and the Movement for the Defense of the Legal Profession (MDA).
In short, the manifesto recognizes the practice of the Courts, which deliberately adopt acts to reduce the number of cases subject to appraisal on the merits, consisting of an attack on fundamental and procedural rights. These organizations do not accept the argument that the court docket is congested, which does not justify the adoption of measures that undermine the individual guarantees of citizens. Administrative measures should be adopted to improve the efficiency of public management. They also point out that the rules inherent to the conditions for appeals, especially the limiting and instrumental rules, must be interpreted restrictively, and that the rejection of appeals must be based on express procedural legislation.
The structural crisis plaguing the Judiciary does not justify the application of the unrestricted formalism evident in such decisions, as they go against constitutional and procedural rights and guarantees, as well as going against the legislative advance of valuing the substantive right protected over procedural form. In addition, they denigrate the essential role of the Higher Courts, which promote the standardization of the law and legal certainty.
Marcos Martins Advogados, whose work is based on loyalty, good faith and procedural collaboration, repudiates the practice of defensive jurisprudence and endorses the manifesto “The Legal Profession opposes the practice of defensive jurisprudence by the Brazilian Courts” in its entirety.
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¹Art. 1007, §2 of the 2015 Code of Civil Procedure.
²Art. 1.032, caput of the 2015 Code of Civil Procedure.
³STJ. AgInt no AREsp nº 957.821 – MS (2016/0196884-3). Rapporteur: Minister Raul Araújo. Special Court. Date of judgment: 20/11/2017. Date of registration: 19/12/2017.
⁴STJ. AgInt no REsp nº 1.715.972 – MA (2017/0325647-1). Rapporteur: Minister Campbell Marques. Second Panel. Date of Judgment: 05/15/2018. Record Date: 05/18/2018.
