High-profile cases drag on for years. In a system tilted towards those with deep pockets, running out the clock is a favoured tactic for defence lawyers, which politicians accused of corruption see as a safe haven.
Last year, former federal congressman Talvane Albuquerque received a 103-year jail term for murdering a political rival. However, such seemingly rigorous justice hides the fact that the crime occurred in 1998. Albuquerque’s lawyers used a sequence of appeals and procedural loopholes to delay the trial.
This year, former seminary student Gil Rugai got 33 years for killing his father and step-mother – back in 2004. He then walked out of court, with lawyers predicting appeals could leave him free for another four years.
Delaying and even trying to run out the clock is a favoured tactic for Brazilian defence lawyers. Prescription kicks in at 20 years from the date of a murder, but much sooner for lesser crimes or elderly defendants. Politicians accused of corruption or influence-peddling often see it as a valuable safe haven.
High-profile cases that drag on for years reinforce a popular image of Brazilian justice as generally slow and tilted towards those with deep pockets. A public opinion survey by FGV-Rio, a leading law school, consistently shows the judiciary trailing institutions like the armed forces, the Catholic Church, the press and even the executive branch in terms of public trust. But Joaquim Falcão, dean of FGV-Rio, told IBA Global Insight that the real problem lies in the ‘pathological slowness’ of a system groaning beneath 90 million mainly humdrum cases in 2011, including 26 million which started that year.
‘Brazil has an excess of appeals,’ says Falcão, who holds a Master’s from Harvard Law School and a PhD in education from Geneva University. ‘Democratic doctrine suggests that two instances, where one is a collegiate hearing, are enough for the rule of law. But Brazil has four instances,up to the Supreme Court (STF). And unlike the US Supreme Court, the STF cannot select which cases it hears, it must rule on every appeal it receives. This leaves the STF somewhat defenceless and creates a “fatal attraction” for all lawyers to continue their case as far as the STF.’In 2006, the STF received a record 127,500 new cases. The flood has receded a little, to 67,000 in 2012, thanks to a constitutional amendment allowing the court to declare that some rulings are akin to precedents.
Nevertheless, the 11 judges are still swamped. In theory the STF is basically a constitutional court, but Brazil’s highly detailed constitution creates numerous opportunities to challenge mundane rulings on constitutional grounds. ‘There are now 52 ways to get a case into the STF, and all cases claim to be raising constitutional issues,’ Falcão says.
‘Over 80 per cent of cases reaching the STF are procedural rather than substantive appeals, and this has an enormous impact on the system at all levels.’
Increasing prosperity has seen a rise in consumer and fiscal litigation – conflicts about taxes, telephones, energy, credit cards and health plans. Many start life in the small claims courts, designed for exactly this purpose, ‘but they don’t stop there, they can go to the STF,’ Falcão says.
Who benefits, apart from the lawyers? Falcão offers a hint: ‘Even when government attorneys know they’re going to lose, they can appeal and delay a decision because it’s a way of financing the state. This also applies to tax payers – both use the slow system as a means of finance.’
In general, he says, of the ten largest ‘clients’ of the STF, as plaintiff or defendant, perhaps eight are government agencies and two are consumer oriented companies.
Another constitutional amendment now before Congress would block appeals to the Superior Court of Justice (STJ), the third instance and the rung immediately below the STF, unless appellants can demonstrate that they are questioning an important point of statute law. In theory, the highest appellate court for non-constitutional matters, the STJ is charged with ensuring uniform application of federal law. But the 31-judge tribunal is inundated by 300,000 cases a year.
Falcão favours some restriction on appeals, while ensuring that questions of fundamental social rights still reach the STF. He points to a ‘perverse relationship’ between a justice system bogged down by appeals and the market for lawyers.
‘There’s a belief that the slower the system, the more business for lawyers. But this is wrong. It might initially appear to increase the market, but it’s distorted growth that feeds popular mistrust of the judiciary,’ he says. ‘It also favours people with enough money to take their case to Brasilia.’
Appeals limitation as currently mooted in Congress faces opposition from the Brazilian Bar Association (OAB). Marcos da Costa, president of the OAB chapter in São Paulo, told IBA Global Insight he recognised that justice is abysmally slow in some areas, particularly in São Paulo state, Brazil’s largest, which generates roughly a quarter of all cases. However, he says, this is mainly due to judicial overload – some lower court judges in São Paulo have more than 30,000 cases stacked up. Throw in some weak judges and you have ‘rulings that satisfy neither party,’ so making appeals essential - one local judge in Greater São Paulo was overturned 90 per cent of the time on appeal.
‘The real problem lies in the pathological slowness of a system groaning beneath 90 million mainly humdrum cases in 2011, including 26 million which started that year.'
For da Costa, the root problem in ‘slow’ states like São Paulo is not excessive appeals but rather a failure to expand the judiciary to keep pace with the increased demands generated by the 1988 Constitution. Enacted in democratic fervour after the end of military rule, it enshrines numerous new rights that naturally create more litigation.
Federal judiciary staff have expanded by 49 per cent since 2001, to 121,700 nationwide, according to official figures, but in São Paulo thousands of state judiciary posts remain vacant, da Costa says. Some 300 new state courts exist just on paper.
Other problems include the slow introduction of information technology and the cumulative effect of prolonged strikes. Hardly a year passes without judiciary clerical staff striking somewhere in Brazil: 2011 and 2012 each saw stoppages of three weeks or more in at least three states, while 2010 saw a 127-day strike in São Paulo. ‘This creates a huge backlog and takes a long time to catch up,’ da Costa says. Public sector strikes tend to be frequent and lengthy in Brazil because strikers normally get paid for the time stopped, and compensate afterwards with unpaid overtime.
State Judge Juliano da Costa Stumpf studied Brazil snail’s-pace judicial system for a 2008 Master’s Degree thesis at the FGV-Rio law school. His main conclusions: ‘While external factors contribute to the slowness, they are not among the main causes. Internal factors must be recognised as the most significant causes of slowness.
Many people including several members of the judiciary argue the opposite, a fact that suggests a real avoidance of responsibility. Among the internal factors, specifically, are the omission of judges in (efficiently) managing their courts and the general administrative disorganisation of the Brazilian judiciary, in particular at the first instance.’
One reason for inefficient management, Stumpf says, is that circuits are effectively run by the longest-serving judges. These tend to be the most satisfied with the status quo and the least anxious to introduce modern systems and technologies. Using 2006 data, Stumpf says Brazil had an adequate number of judges – 9.35 per 100,000 inhabitants, and above the United Nations recommended minimum of seven – and was probably above the world average for the ratio of clerical staff per judge. This led Stumpf to the conclusion that a bigger budget is not necessarily the first priority to speed things up.
‘I wouldn’t deny that more money might be necessary in some circumstances,’ he says. ‘After all, the population is growing. But first, we ought to try to do the best we can with what we have.’