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Ellen Gracie: the decade of the first woman to join the Federal Supreme Court of Brazil

As late as May 2000, a woman could not even enter the Brazilian Federal Supreme Court wearing trousers. Tradition requiring women to wear skirts or dresses lasted several years, but on a Wednesday, May 3, 2000, this rule has fallen. In an administrative session, the ministers of the Supreme Court decided to allow the use of trousers by women, as long as they also wore a blazer.

That change envisioned a new era in the Court and paved the way for the first woman to become a Minister of the Supreme Court. On November 23 of that year, the then-president Fernando Henrique Cardoso appointed magistrate Ellen Gracie Northfleet from Rio de Janeiro to fill the Supreme Court vacancy. Twenty-one days later, the discreet and elegant style of the magistrate, either in words or gestures, although firm in her decisions, defined the first woman to join the Federal Supreme Court of Brazil.


"The act of choosing Ellen Gracie to the Supreme Court – besides from representing the celebration of a new era – also meant a true rite of passage as it opened in a positive way, in the judicial history of Brazil, a clear and irreversible transition to a social model that rejects gender discrimination, while enshrining, in a pro-active manner, the statement of republican equality". That statement by the dean of the Court, Minister Celso de Mello, was published in "Notes on the Supreme Court" which he authored.


Line of succession


The position occupied by Ellen Gracie in the Supreme Court was due to the retirement age of Minister Octavio Gallotti, who reached 70 years on October 27 of that year. In his book, Minister Celso de Mello described the appointment of a woman to the Supreme Court in the early twenty-first century as a "symbolic gesture, an act of historic significance, as dense and full of political consequences."


The seat occupied by Minister Ellen Gracie since December 14, 2000, was created in 1965 through the Institutional Act No. 2 (AI-2). Throughout the history of the Supreme Court, there were several changes regarding the number of Ministers. In the early Republic, when installing the Supreme Court, the Court had 15 ministers.


Already in 1931 it fell to 11. This number was again changed to 16 with the release of the Institutional Act No. 2 of 1965. Finally, AI-6, 1969, reduced it again to 11 Ministers and this arrangement continues today. The chair that Minister Ellen Gracie held until earlier this month had been respectively occupied by Ministers Octavio Gallotti, Soares Muñoz, Eloy da Rocha and Carlos Medeiros.


The retirement of Minister Ellen Gracie was published in the Official Gazette on Monday (8), in a decree signed by President Rousseff on August 5.


Historical judgments


Mensalão Bribery Scandal - During her tenure, one of the biggest trials in volume and impact of the history of the Court took place: Inquiry 2245, which initially involved 40 people accused by federal prosecutors. After five days judging that case, the inquiry was transformed into a Criminal Suit. In the end, the Ministers accepted the federal prosecutors’ plea to transform that investigation into a criminal proceeding (AP 470).


The last plenary session chaired by Minister Ellen Gracie, on April 16, 2008, was classified as "a landmark steeped in profound historical significance," said the dean of the Supreme Court, Minister Celso de Mello. The minister also said that "the rise of President Ellen Gracie broke the ideological and cultural barriers that, for centuries, have arbitrarily marginalized women in Brazil."


Pensions - On February 9, 2007, under the command of Minister Ellen Gracie, the Plenum of the Supreme Court ruled at once 4,908 cases relating to the payment of death benefits by Social Security.


The joint trial of Extraordinary Appeals that dealt with this matter was made at the initiative of the then President of the Court Minister Ellen Gracie, and it was only possible after the amendment introduced by Article 131 of the STF Rules and Procedures, which changed the timespan for oral argument of lawyers present in the case.


The Minister told reporters after that decision that it "makes no sense for a citizen to receive a jurisdictional decision in one direction and have his neighbor or coworker receive a different decision on the same matter. Decisions like this save a lot of time and work within the judicial and administrative bodies of the Court."  


Goldman Case - The opinion by Minister Ellen Gracie in the trial of the case called Goldman (ADPF 172) was also highlighted in the plenary of the Supreme Court. The Minister defended the respect of the Hague Convention on Child Abduction.


The trial before the Supreme Court involved a dispute over the custody of a five year old boy, whose father was American and whose mother was Brazilian. As the child's mother had died, her family came to claim the right to custody of the child. The father claimed that the mother had abducted the boy to Brazil and tried to get his son back through Court.


The theme related to international child abduction caught the attention of the Minister who, during her tenure as President of the Supreme Court created a Permanent Group of Studies on the Hague Convention of 1980. Composed of representatives from agencies involved in dealing with the matter, the group aims to promote studies and research on that subject within and outside Brazil.



Agility and efficiency


Both words define the management mark Minister Ellen Gracie left during the 2006/2008 biennium in which she presided over the highest court in the country. During her two years in office, the Minister adopted a series of measures to make the judicial Administration more responsive to the legal profession and to citizens seeking justice.


The Minister's tireless quest for modernity, speed and administrative efficiency in the Brazilian Judicial System was also taken by her to the National Justice Council (CNJ), where she also served as president between 2006 and 2008.


Her independent firm, sober and efficient work in conducting the Court is a mark of her management, according to Minister Celso de Mello, who also recalled the importance given by the Minister to implementing modern practices in judicial proceedings.


It was during the administration of Minister Ellen Gracie as President of the Supreme Court that digital certification was adopted, which provided the basis for e-procedure before the Court and electronic discussions as the most effective legal means to streamline the processing of cases in court.

 
Instruments such as ‘Binding Abridgement’ and ‘General Repercussion’ began to be used during Minister Ellen Gracie’s administration, including the editing of the first three ‘Binding Abridgement’ precedents of the Court. When the minister took office there was a concentration of demand at around 200 000 cases and she expected that demand to fall between 60 and 80 percent with the adoption of the two instruments.


Bills addressing the ‘General Repercussion’ (PL 6648/06), ‘Binding Abridgement’ (PL 6636/06) and the ‘E-Procedure’ (PL 5828/01) that regulated the so-called Judicial Reform (EC45/2004) were sanctioned by President Luiz Inacio Lula da Silva in 2006, a ceremony in which Minister Ellen served as President of the Court.


The minister's commitment paid off and today demand has decreased significantly due to the binding effect of precedent and to the general repercussion in certain cases. In 2007, there were 100 000 ‘extraordinary’ appeals filed in the Supreme Court, and in 2010, with the two instruments above mentioned have consolidated demand down to 63000 appeals.


The Minister also always advocated conciliation and mediation as alternative dispute resolution to ease demand before the Judiciary. According to Ellen Gracie, it is important to "create a culture of peace, rapprochement and peaceful resolution of disputes."


She launched in 2007 the National Day of Reconciliation, when nearly 84,000 hearings were held throughout the country, with an index of agreements reached over 55.36% of cases.



Rigor


Low profile, but firm in defense of her arguments, Minister Ellen Gracie stood out not only in Plenary, during which she presided over the court, but also in deciding single-handedly or outspoken in one of two panels (called ‘Turma’) of the Supreme Court. Known for the accuracy with which she handled criminal matters, the Minister is firm in applying the criminal law when considering arguments of violation of the individual rights of defendants.

 
Minister Ellen Gracie was also known for only in exceptional cases not applying ‘Binding Abridgement’ nr. 691, which imposes dismissal of cases where there’s still no final judgment by a lower Court of the plea for injunction. She applied the same rigor in deciding whether to release a prisoner in those cases the prison was decreed under Article 312 of the Code of Criminal Procedure. In 2006, she voted against the prison regime progression for heinous crimes.


Heinous crimes Case - In her first year in the Federal Supreme Court, the Minister took part in a trial in which her opinion was crucial for the Court to change its view in relation to the definition of the crime of simple rape in equating that same with the crime of indecent assault. On December 17, 2001, the Plenum of the Supreme Court decided, by 7 votes to 4 to include the crime of simple rape in the list of heinous crimes.


The new interpretation of the law was consolidated by the trial of Habeas Corpus (HC) 81288, when it was denied a reduced sentence to a parent convicted of intercourse with female minors over a prolonged period. Until then, the interpretation of the Supreme Court for Heinous Crimes (Law 8.072/90) was that this classification applied only to qualified rape, i.e., that which results from severe injury or death.


Nardoni Case - The Minister was Rapporteur in high-profile habeas corpus cases, which had caused national public outcry, as the couple Alexandre Nardoni and Anna Carolina Jatoba, father and stepmother were accused of killing the girl Isabella Nardoni, in March 2008. When examining the case (HC 95344), she applied “Binding Abridgement” nr. 691, which prevents the Supreme Court from judging habeas corpus pleas concerning an injunction judged by a Higher Court when there’s still no decision on the merits.


According to the minister, the decision of the Rapporteur in that case was well reasoned and there was no "flagrant illegality or abuse of power" that would allow for the overcoming of ‘Binding Abridgement’ nr. 691.

 

Richthofen Case – Being also rigorous in relation to proceedings, the Minister denied on procedural grounds, an application for habeas corpus made by the defense of Suzane von Richthofen in Habeas Corpus (HC) 89218. The decision was taken in July 2006, during the judicial recess. Accused of killing parents Manfred and Marisa von Richthofen, Suzanne, at the time, was taken to the Center for resocialization of Rio Claro (SP), awaiting trial.


In the decision, Ellen Gracie rejected a request by Suzane on the basis of procedure: the ruling of the decision taken by the Superior Court of Justice (STJ), which had previously denied release from imprisonment had not yet been published in the Official Gazette of the Judicial Power. "The ruling, under appeal, was not published. It is not possible to confront the claims of plaintiffs and the reasoning of the Higher Court Judges" said the minister.


Abdelmassih Case - In August 2009 the Supreme Court came to judge the writ of habeas corpus of a physician specializing in human reproduction, Roger Abdelmassih. In HC 100429, the doctor asked to be granted bail, since he was arrested on charges of indecent assault and rape against former patients.


The case was assigned to Minister Ellen Gracie who denied the plea for injunction made by the defense. The Minister's decision was based on ‘Binding Abridgement’ nr. 691. To the Minister, to judge in favor of that plea would mean to overcome the need for exhaustion of remedies. The request was dismissed.

 

In February 2011 the Second Panel granted a writ of certiorari for another habeas corpus by Abdelmassih. In judging HC 102098, the Ministers of the respective Panel followed by a majority of votes, the opinion of the Rapporteur Minister Ellen Gracie. That habeas corpus was judged before the final sentencing on the case in November 2010, when Abdelmassih was convicted to 278 years in prison for the crimes of rape and indecent assault committed in his fertility clinic between 1995 and 2008.


Bicentennial

 
During her tenure as President of the Federal Supreme Court of Brazil, Minister Ellen Gracie created and coordinated the Organizing Committee for the Bicentennial Celebrations of the Independent Judiciary in Brazil. The date was celebrated on May 10, 2008, days after the minister left the Presidency, and symbolizes the elevation of the status of the Court in Rio de Janeiro (former judicial body which operated between 1751 and 1808) to House of Solicitation. From that moment on, all proceedings took place in Brazil, without having to go through the Supreme Court of Portugal.


The Organizing Committee of the Bicentennial celebrations promoted the year over various activities such as lectures, exhibitions, book launches, essay competitions, seminars, conferences and retrieval of documents in partnership with the National Archives with the goal of rememorating the Judicial and Cultural history of the country.


Decade


When she completed a decade in the Supreme Court, Minister Ellen Gracie was honored by her colleagues during a Plenary Session. The current President of the Court, Minister Cezar Peluso said that the arrival of Minister Ellen Gracie in the Supreme Court "is a great achievement of gender and serves as a model for the country."


At the time, Minister Ellen Gracie thanked his words and highlighted the presence of another magistrate at the court, referring to Minister Carmen Lucia, "and perhaps others, in the future. So when you cross this barrier, it makes it easier to overcome other prejudices, not only of gender, but of any nature", so she said.


As a member of the Second Panel, the Minister was also honored by that Board. The President of the Second Panel, Minister Gilmar Mendes highlighted the presence of Ellen Gracie "not only for being the first woman to hold the office of Minister and President of the Federal Supreme Court, as well as for the magnificent and judicious votes in the plenary and in this Panel, for her elegance and civility even during heated debates."


Mendes noted that the Minister’s Presidency of the Supreme Court brought about the beginnings of e-proceedings and the instruments of “general repercussion” and “binding abridgements”. "Needless to emphasize the scope and meaning of the implemented modernization. And today we are reaping those fruits", said the minister.


Another member of the Second Panel, Minister Ayres Britto described the Minister Gracie as a "noble person and a competent professional whose social sensitivity, sense of reality, commitment to reconciliation shows those qualities every contemporary judge must seek in a balance between legal certainty and material justice."


Minister Ellen Gracie stressed the importance of the position of Judges of the Supreme Court to point out that that’s where justice is done for the whole nation. "Here all judicial aspects of Justice are built upon the very future of Brazil, so I do not believe that there may be greater honor for someone who walks the legal path than to be part of this House and to be able to contribute to the formation of its jurisprudence."



Biography


Ellen Gracie Northfleet was born on February 16, 1948 in Rio de Janeiro and began her academic and professional training in the State of Rio Grande do Sul where she obtained a degree in Law and Social Sciences in the Faculty of Law of the Federal University of Rio Grande do Sul, in 1970 and a post-graduate degree in Social Anthropology from the same university in 1982.

 
Early in her career, she worked as a lawyer for the Brazilian Bar Association (OAB), Rio Grande do Sul Chapter (1986/87). She became the founding director of the OAB School of Law for Rio Grande do Sul (RS). In the following year, she became the Vice-President of the Lawyers’ Institute of RS, where she also worked as a Federal Prosecutor.


In the Judiciary, Ellen Gracie joined the Federal Court of the 4th Region (TRF4), the Regional Electoral Tribunal of Rio Grande do Sul, took part as Magistrate of the Standing Committee at the Center for Judicial Studies of the Board of Federal Courts (1993/94) and became Vice-President and President of that same Court (1997/99), shortly before being appointed to the Supreme Court, she had presided over the 1st Panel of TRF4.


Ellen Gracie became the first woman to join the Brazilian Supreme Court on December 14, 2000, a position she held until August 8, 2011.

 
During that decade as member of the Federal Supreme Court of Brazil, Minister Ellen Gracie also served on the Superior Electoral Court (2001) and presided over the Federal Supreme Court and the National Judiciary Council (CNJ) between 2006 and 2008.



Academic life


Ellen Gracie is a licensed teacher of Constitutional Law at the University of Vale do Rio dos Sinos (RS), President and Founder of the Women’s Association of Graduates from the University of Rio Grande do Sul, and was a fellow of the Fulbright Foundation (USA) between 1991 and 92, having worked on the subject of "Administration of Justice."


She is also an Advisory Board Member of the Global Legal Information Network (GLIN), a jurist in residence at the Library of Congress (1992) and member of the International Association of Women Judges (AWJ).



Tribute

 

The plenary session of August 10, 2011 began with a tribute to Minister Ellen Gracie. The Dean of the Court, very touched by the occasion, led the ceremony. He again said, as he did at the time her appointment to the Court, in 2000, that the arrival of Ellen Gracie to the Supreme Court was 'emblematic, an act of historical significance as dense and full of political consequences'.

 

"The luminous presence of Minister Ellen Gracie in the Supreme Court reflects with remarkable strength and expressive meaning, the recognition that the process of empowerment of women before the law, never to be taken as an instrument of oppression, is rather a means of liberation".

 

Other colleagues joined the Tribute. Ayres Britto - The Minister stressed that the retirement of Minister Ellen Gracie was premature and that she still had much to contribute to the Court. "She has given us definitive lessons of responsibility and attachment to republican values", he said.

 

At the end of the Tribute, the President of the Supreme Court Minister Cezar Peluso said that the retirement of Justice Ellen Gracie is a sad fact to colleagues and to the whole legal community.

 

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