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In two years, the Supreme Court ruled 83 extraordinary appeals (RE) with general repercussion, which cleared more than 76 thousand pending cases in lower courts

Friday, July 15, 2016

Since 2007, the Brazilian Federal Supreme Court (STF) ruled 284 subjects with general repercussion. Between August 2014 and June 2016, under Ricardo Lewandowski's tenure as Chief Justice, 83 of them were analyzed, corresponding to 30% of the total. The last 83 extraordinary appeals with general repercussion tried released at least 76,213 cases that were suspended in lower courts awaiting the Supreme Court’s decision, as they involved topics of constitutional nature. The figures show the priority given by the Chief Justice in scheduling for trial this kind of extraordinary appeals, which enables the harmonization of the conflicts on the matter, once the interpretation of the Constitution issued by the Supreme Court becomes legally binding by other courts in similar cases.

The general repercussion is an institute created by Constitutional Amendment 45/2004 (Judicial Reform) and deployed in 2007 from regimental rules. It allows the Supreme Court to judge relevant issues from the economic, political, social or legal standpoint, when these aspects go beyond the subjective interests in the case. The extraordinary appeals deal with individual cases, but they are used as paradigms (or leading cases) for the Court to examine the heart of the matter.

Prison system

Among the main themes judged under the institute of general repercussion in the last two years are those that deal with the rights of convicts living under the care of the Brazilian prison system. In one of these cases (RE 641.320), judged at the end of June 2016, the Court established a thesis in the sense that the lack of adequate penal facilities does not authorize the maintenance of the condemned in a more onerous prison regime. Also in the light of general repercussion (RE 841.526), the Court ruled that the detainee's death in prison generates civil liability of the State when it is due to failure to comply with its duty of protection. In this situation, the Judiciary, upon request by the Prosecution Service, may impose the refurbishment of prison premises to ensure the fundamental rights of detainees.

Electromagnetic fields

Another important judgment, examined in general repercussion (RE 627.189), overruled the decision that determined the reduction of the electromagnetic field of transmission lines, due to the alleged cancerous risk to humans. For the Supreme Court, until we have sound scientific evidence on the effects of magnetic fields, the protection parameters of the World Health Organization (WHO), established by Law 11,943/2009, should be observed. Due to its complexity, the issue became object of a Public Hearing held by the Supreme Court.

Civil service entrance exams

By analyzing an extraordinary appeal (RE 837.311) on the rights of candidates in public tendering, the Court ruled, in two cases that "the emergence of new vacant positions or the opening of new exams for the same position during the period of validity of the previous public tendering does not automatically generate the right to appoint the successful candidates out of the positions stated in the announcement”. Cases of arbitrary and unjustified omission by the administration are excepted, characterized by tacit or express behavior of the government able to reveal the clear need for appointment of candidates approved during the period of validity of the public tendering, to be demonstrated adequately by the candidate.

On the subject, in April 2015, the Supreme Court decided in case with recognized general repercussion (RE 632.853), that the criteria adopted by examiners cannot be reviewed by the Judiciary. And in September 2014, it established that the autonomous social services, because they have legal status of private law and are not part of the public administration, are not subject to compliance with public procurement rules for hiring its staff, even performing public interest activity in cooperation with the state entity. Also as to civil servants, the Court ruled, in August 2014, that as their remuneration is consisted of general advantages, because they are generic, they should be extended to retirees and pensioners.

Labor law

An important decision, under the labor law, was taken by the Supreme Court in April 2015 on the analysis of the RE 590,415. At the time, the Court has decided that the extrajudicial transaction that leads to the termination of the employment contract due to encouraged shutdown program entails a broad and unrestricted discharge of all parcels object of the employment contract if the condition is explicitly listed in the approved collective agreement (union agreement) and other instruments entered into with the employee.

In civil law, one of the highlights was due to the decision taken in RE 611,639 in October 2015, according to which "the public registration of chattel mortgage contract vehicle is unnecessary”.

Criminal matters

On criminal procedural law, the Court decided, in May 2015, the constitutionality of the investigative power of the prosecution, but made a number of observations, which were summarized in the thesis approved in plenary. "The Prosecution Service has the authority to promote, on its own authority, and reasonable time, criminal investigations, provided that they respect the rights and guarantees that attend any charged or any person under state investigation, subject, always, its agents, the chances of constitutional reservation of jurisdiction and also the professional prerogatives of who are invested in our country, lawyers (Law 8,906/1994, art. 7, especially in items I, II, III, XI, XIII, XIV and XIX), without prejudice to the possibility - always present in the democratic rule of law - the permanent judicial control of the acts necessarily documented (Statement 14 of Binding Precedent), performed by members of that institution". The decision was taken in RE 593,727

And, in criminal law, the highlight is the decision of October 2015, according to which the Supreme Court has confirmed that it is for the Federal Court process and judge crimes consistent in providing or acquiring pornographic material involving children and adolescents (RE 628,624).

"The forced entry into homes without a warrant is only lawful, even at night time, when supported by reasonable grounds, duly justified a posteriori, indicating the ongoing occurrence of a crime, under the penalty of disciplinary, civil and criminal agent or authority and revocation of acts performed". This was the thesis approved by the Court in November 2015 in the trial of RE 603,616 with recognized general repercussion.

Another important theme was defined by the Court in November of the same year, in the field of collective procedural law. The Court confirmed that the Public Defender is entitled to the civil action in order to promote the legal protection of collective rights held in theory by needy people (RE 733,433).

Other topics

In other relevant cases, the Court decided that IPI applies on car imports by individuals for their own use, and that the publishing of the name of the government employee and the values of the corresponding salaries and benefits cash is legitimate, including in websites maintained by the Public Administration (RE 723,651). It was decided that there can be different deadlines for maternity leave allowance for pregnant government employee and adoptive parents (RE 778,889), and that is unconstitutional to provide the possibility of patients of the Unified Health System (SUS) to pay to have superior accommodation or being attended by doctors preference (RE 581488).

In June 2015, the Court fixed thesis in the sense that habeas data is the proper constitutional guarantee to obtain, by the taxpayer, the data concerning tax payments of computerized support systems to the collection of financial administration of the organs of state entities (RE 673,707). In March, the Court ruled to the effect that the organic laws of the municipalities cannot regulate the rights of civil servers, in offense of the initiative of the Chief of the Executive (RE 590,829), and also that the municipality is competent to legislate on the environment, along with Union and the State Government, within the limits of their local interest and provided that the norm is harmonious with the discipline prescribed by other federal entities (RE 586,224). In August, it was ruled in the sense that the allocation to municipal guards of traffic police power is constitutional, including imposition of administrative sanctions provided by law (RE 658,570).

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