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STF participates in the 2011 US-Brazil Judicial Dialogue

May 13th, 2011

The president of the Brazilian Federal Supreme Court (STF) and three other ministers participated, on May 12th-13th, in the 2011 US-Brazil Judicial Dialogue, a joint initiative by the Federal Supreme Court (STF), the Supreme Court of the United States of America, the Brazil Institute, the Woodrow Wilson Center, the Law Library of the United States Congress and the Center for the Advancement of the Rule of Law in the Americas, from the Georgetown University Law Center.

The meeting was held in the plenum of the Library of Congress, in Washington, DC, and its main goal is to widen the dialogue between the Brazilian and the north-American Judiciaries. Ministers Cezar Peluso, Ellen Gracie, Gilmar Mendes and Ricardo Lewandowski arrived at the north-American capital on Wednesday (May 11th), when they were received by Mauro Vieira, the Brazilian Ambassador in the USA.

The role of Supreme Courts

In the first day of the event, Minister Cezar Peluso and judge Daine Wood were the speakers of the first panel, which discussed the subject “Constitution, Fundamental Rights and Democracy: the role of the Supreme Courts in the two biggest Western democracies”. Minister Ellen Gracie and professor Mortimer Selles were the commentators.

Minister Peluso openned the meeting with a speech regarding the role of the supreme courts of the two countries in relation to fundamental rights and democracy. He pointed out that STF has had and keeps having an important role in the solidification of democracy afterwards the promulgation of the 1988 Constitution and the dissemination of fundamental rights.

The north-American judge Diane Wood commented several differences between the Brazilian and the American Constitutions mainly on the specification of fundamental rights. She stressed out that the American one is much more concise than the Brazilian one, which relieves the Supreme Court from involving itself in matters that are as detailed as the individual right. She also reminded that the fundamental rights are collective; they should not be attached to individual questions.

Afterwards, Minister Gilmar Mendes spoke about “Constitutionality control and judicial review: legitimacy, transparence and legal certainty in the Supreme Courts decisions”, a panel also commented by Minister Ellen Gracie.

When talking about legitimacy, transparence and legal certainty in the Supreme Courts decisions, Minister Gilmar Mendes highlighted the originality and diversity of the procedural instruments destined to the supervision of the constitutionality of the governments acts and to the safeguard of fundamental rights in Brazil. Mendes recalled the importance of STF in the solidification of the Brazilian democratic process.

Another aspect raised by Gilmar Mendes in his lecture was the transparence of STF decisions. “Unlike what happens in various constitutional justice systems, in which the actions of unconstitutionality are judged in private hearings, the trial sessions in STF are fully public. The debates are broadcasted live by ‘TV Justiça’ and by ‘Rádio Justiça, both with national range’”, he pointed out.

Jurist Jeffrey Minear, when making remarks on Minister Gilmar Mendes’ lecture, stressed operational differences between the Brazilian and the American Supreme Courts. He explained that, even though transparence in the decision is a common practice also in the United States, in his country the Supreme Court decisions are taken away from the public. “Transparency has limits. In the north-American Supreme Court the decision is taken in a closed room with only the justices present, which allows them to speak frankly with each other. Transparency comes in the final product. After judges spend days writing the decisions so that the public can understand, everything is publicized”, he clarified, enhancing that transparency is a key point for legitimacy.

STF’s transparency was also called upon by Minister Ellen Gracie, who underlined the significance of “TV Justiça” and of “Rádio Justiça”. Even so, she recognized the need to make the STF decisions more accessible so that the public in general can understand them. “In Brazil we have to follow this path, because our decisions are yet very hermetic”, she pointed out acknowledging that the decisions made by the north-American Supreme Court are publicized in a way clearer than what it is done in Brazil in spite of all the transparency.

The debate relative to the excess of legal appeals

Ministers Cezar Peluso and Ricardo Lewandowski took part as commentator and mediator respectively, in the last panel of the day, in which the theme “Due process of law: appeals and constitutional guarantees” was discussed.

The pursuit of mechanisms in order to diminish the excess of appeals and to facilitate the flow of lawsuits was the keynote of the discussion on the first day of the 2011 US-Brazil Judicial Dialogue.

Minister Cezar Peluso highlighted the need of means so as to discourage the use of appeals that postpone the execution of sentences in Brazil. “The discouragement of procrastinating appeals responds to a demand that comes from the Brazilian society, which is to terminate proceedings”, he stressed while explaining to the meeting attendees his proposal of reviewing the Brazilian constitutional text, by means of the so-called "PEC dos Recursos" (constitutional amendment proposal for new appellate rules), with the aim of allowing the execution of the sentences after the second instance decisions.

“The idea is not to end the possibility of appealing to STF, but to enable the Supreme Court to examine the cases that are already res judicata”, clarified Peluso, reinforcing that the majority of the Extraordinary Appeals that reach STF does not result in a reformation of the second instance decisions. “Less than 1% of the cases have the sentences modified”, he affirmed.

His proposal was emphatically supported by professor Joaquim Falcão, from the Law School of Getulio Vargas Foundation (FGV). He astounded the north-American judges and jurists when he demonstrated that there are, currently, 37 ways to appeal to STF in Brazil.

Even emphasizing that the excess of legal appeals is part of a Brazilian law tradition, the professor insisted on the need of changes. “Isn’t it that the excess of legal appeals used by the federal government is, in the name of the due process of law, going against the very purposes of the due process itself?”, questioned Falcão at the end of his lecture in which he presented the research numbers of FGV. According to that research, 90% of the lawsuits that reach STF are appeals presented by the federal and the state governments.

Lewandowski presents the Brazilian electoral system

“Our judicial system is a ‘jabuticaba fruit’ that worked out”, this was how Minister Ricardo Lewandowski began his speech about the Brazilian electoral system in the last day of the 2011 US-Brazil Judicial Dialogue. By affirming that, he highlighted the advances of the Brazilian electoral legislation, which has unique characteristics if compared to the American system. The Minister highlighted the recent agreement signed by the government of the two countries, on the occasion of President Barack Obama’s visit to Brazil, aiming to transfer the Brazilian technology to the United States, in order to facilitate the access to voting for people with disabilities.

Professor Keith Rosenn, a north-American jurist who debated the theme with Minister Lewandowski, praised the Brazilian electoral system and laws.

“In the United States there is not a uniform legal system that can be compared to the Brazilian electoral code. I congratulate Brazil for the way that Electoral Justice works, that, as I told Minister Lewandowski, is essential to preserve democracy”, he affirmed. The professor, however, presented severe criticism towards the high level of corruption shown in the Brazilian electoral campaign.

The professor praised the work of the Ministers of the STF, who also work at the Electoral Superior Court. “I do not know how they make it. They work hard at the Federal Supreme Court with a great amount of lawsuits and yet work as electoral judges, administrating an enormous geographical area that covers more than 120 million people”, he mentioned.

Rosenn also complimented the technological advances of the Electoral Justice. He assigned the high level of reliability shown by the population towards Brazil’s electoral system to the use of the voting machine. According to the research data exhibited by Minister Lewandowski, 87% of the Brazilian voters have positively evaluated the Electoral Justice.

As a debate mediator, Minister Gilmar Mendes accentuated the importance of the Brazilian Electoral Justice during the process of solidification of democracy. “The electoral justice in Brazil was capable of extinguishing fraud, a common practice in the so-called ‘Old Republic’. The voting machine and all of its following improvements made it possible to, doubtlessly, diminish fraud”, stated Mendes.

Corruption fighting

Corruption lawsuits and trials were the theme introduced by Minister Ellen Gracie, during the last panel of the meeting. She pointed out that, in this field, the use of technology and especially the advances in the legislation have helped Brazil to achieve the expected results. “In Brazil, for a long period, criminal prosecution of political figures, in particular members of the parliament, was efficiently curbed. There was no such thing as an absolute immunity in the law, such as “the king can do no wrong”. However, the Judiciary branch actuation depended on the explicit authorization of the defendant’s respective legislative organ”, the Minister reminded, emphasizing that the several denials from the Congress lead to an enormous friction between the democratic institutions.

According to Minister Ellen Gracie, the battle against corruption has evolved in stride since the promulgation of the 1988 Constitution. “Since 1988, we have had important progress fighting corruption, as, for instance, the Fiscal Responsibility Law and the Administrative Improbity Law, which have lead to the cancellation of mandates and to other sanctions. And, more recently, there is the Clean Record Law, that is in discussion in the Federal Supreme Court”, explained Minister Gracie. She informed that, though it was considered that the Clean Record Law could not be used in the 2010 electoral process, the Federal Superior Court did not decide its unconstitutionality.

When debating with Minister Gracie, the north-American judge Peter Messitte stressed that in the United States the level of corruption is also a high one. “We compete directly with Brazil in terms of corruption”, he affirmed, emphasizing, nevertheless, that the great difference between the two countries regarded the legal treatment given to cases.

Messitte also pointed out that in the United States there is no legal prevision of a special forum for politicians, as it occurs in Brazil. “We do not have the concept of privileged forum. When there is a corrupt politician he goes on trial in an ordinary jury. In Brazil, when someone is caught, it is said that it is a regular practice and it all ‘ends up in pizza’, likewise you say it”, criticized the judge.

At the end of the 2011 US-Brazil Judicial Dialogue, the president of the Federal Supreme Court expressed his satisfaction with the level of the debates that occurred during the meeting. All of the talks and discussions throughout the event will be collected in a document to be published by Woodrow Wilson Center and by the Federal Supreme Court.

Read the full speeches:

Minister Cezar Peluso

Minister Ricardo Lewandowski

Minister Gilmar Mendes


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