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aumentar a qualidade do trabalho acadêmico.
A discussão nesta fase cria a oportunidade para a crítica e eventual alteração da abordagem adotada, além de permitir a incorporação de dados e teorias das quais o autor não teve notícia. Considerando-se que, cada vez mais, o trabalho de pesquisa é coletivo diante da amplitude da bibliografia, da proliferação de fontes de informação e da complexidade dos temas, o debate torna-se condição necessária para a alta qualidade de um trabalho acadêmico.
O desenvolvimento e a consolidação de uma rede de interlocutores nacionais e internacionais é imprescindível para evitar a repetição de fórmulas de pesquisa e o confinamento do pesquisador a apenas um conjunto de teorias e fontes. Por isso, a publicação na Internet destes trabalhos é importante para facilitar o acesso público ao trabalho da Direito GV, contribuindo para ampliar o círculo de interlocutores de nossos professores e pesquisadores.
Judicial Administration in Brazil: Courts Caseload Statistics
Paper prepared for the International Conference of Law and Society in the 21st Century, Humboldt University, Berlin, Germany, July 25–28, 2007
Luciana Gross Cunha
DIREITO GV, São Paulo – Brazil
INTRODUCTION
Brazil has a complex control system of the government and its institutions.
There are free and periodic elections. We have the right to and we exercise political
opposition, we have the separation of powers, and check–and–balance
mechanisms. There are institutions such as the Federal Audit Court and the Public
Attorney’s Office which have the role, as set forth by the 1988 Constitution, of
defending society’s interests and of monitoring State action.
All these elements should guarantee basic rights to all social classes, the
implementation of the rule of law in all regions of our territory and the effectiveness
of the principle of law. In spite of that, corruption scandals involving politicians and
public administrators and misuse of public money are rather frequent. Cases of
civil rights violation, flaws in the enforcement of law, difficulty to access the
Judiciaryand to have fair trials, and the ineffectiveness of judicial decisions, point to
vulnerable aspects of our democracy.
Within this context, one of the biggest obstacles to be overcome by
Brazilian democracy is the lack of efficiency of justice system. The so–called
“Reform of the Judiciary”, involved changes in the justice system as a whole. It was
approved by the National Congress in November 2004, after over ten years of
legislative discussions and political clashes. Eventually, the changes in the
Constitutional Emend were so many and covered so many issues that the text
approved by Congress differs significantly from the Bill as proposed in 19921. Even
the drafter of that original Bill, former PT–representative in Congress Hélio Bicudo
(PT), acknowledged a couple of days after the reform had been approved that it (…)
had nothing to do with what had been presented. I am not at all pleased to have my
name in this project. The reform has been disfigured5.
Beyond the criticism, what such a statement indicates is that, throughout
all the years of discussion in Congress, there was little agreement about what must
5 Translated from the newspaper Folha de São Paulo, Nov 18, 2004.
change in the Brazilian judicial system3.However, if the Bill approved fell short of
the expectations of those involved in the debate, there are no doubts about the
urgency to improve the functioning of justice system institutions.
The major problems in such a functioning are well–known by Brazilians: a
considerable part of the population has virtually no access to judicial protection;
lawsuits take years to end; excessive formality plagues the proceedings, and
judicial institutions lack transparency. Maria Tereza Sadek and Rogério Bastos
Arantes4 suggest that the justice system crisis falls into three areas: the
institutional crisis, the procedural crisis, and the structural crisis.
The institutional crisis springs from the role assigned by the 1988
Constitution to justice systems within the political organization of the State. This
crisis is more evident in what concerns the Judiciary and the Public Attorney’s
Office [Department of Justice]: i) by strengthening the function of constitutional
control by the Supreme Federal Court and of other courts of law, the 1988
Constitution placed the Judiciary as the main referee of disputes involving the other
branches and the individual States; ii) the Public Attorney’s Office’s function as the
watchdog of society’s fundamental rights and interests made it play an even more
important political role in controlling public policies. This certainly contributed to
the enhancing of the democratic check–and– balance system, but it also created
tension in what concerns the ability to govern, and gave a specific form to the
Brazilian politics judicialization phenomenon
The procedural crisis and the problem of slow moving lawsuits have to do
with the procedural rules now at place, and calls for both the implementation of
faster, simpler and less expensive proceedings and the broadening of the access to
justice.6
The structural crisis bears on the organization of the justice system and its
institutions. What matters here is the performance of judicial system institutions as
public service providers, and their capacity to act efficiently.
3KOERNER, Andrei, 1999.
International observers have also acknowledge these various crises in what
regards specifically the Judicial Power’s performance as a necessary institution for
the existence of the rule of law, of democracy and of economic development. Their
reports used the criteria of impartiality, agility, costs, and transparency to evaluate
the Judiciary. 7
Impartiality concerns budget independence, Judiciary immunity from the
interference of other branches of government, such as the Legislative and
Executive.
Agility may be evaluated based on the duration of lawsuits (the ones solved
/ the ones on–going).
Costs involve the judicial expenses and administrative matters such as
institutions budget and the pay–roll of the agents involved in processing the cases.
Transparency, which is of major interest here, is related not only to the
publicity of judicial and administrative proceedings, but also to data availability, and
to the production and use of statistics on the activities by these institutions.
I believe that a democratically transparent Judiciary, which produces data
and statistics on its activities and which uses them as a means to organize and plan
its functioning, is fundamental to validate and secure democracy.
A trustworthy judicial statistics system is necessary so that: i) the public
may detect the activities developed by the Judiciary; ii) higher judicial bodies may
monitor their own performance and plan future projects; iii) the administration may
elaborate and promote public policies for Judiciary reform and improvement; iv)
experts may evaluate the working of the justice system as a whole.
What data are produced by the Judiciary? How are they produced? What
purpose do they serve? Can these data adequately evaluate the performance of
justice system institutions as civil service providers? These are the questions which
lead the present work.
To answer these questions, this presentation is divided into three parts. In
the first part, I will offer you an overview of the Brazilian Judiciary and of the
existing statistics systems in courts. This first part also informs which data are
available at the Judiciary National Data Base and at the Judicial National Council.
The latter is a Judiciary body created by the 2004 Judicial Reform. It has been
introducing important changes in the justice system, namely producing and
publicizing information about the Judiciary. Numbers on the Brazilian Judiciary
activities and its administration are also presented to give a glimpse of complexity
of the Brazilian Judiciary.
I will then talk briefly about the orientation and the criteria used by several
international institutes and agencies to evaluate judicial statistics systems. The
views of international organs will be presented in order to establish a parameter for
the evaluation of the judicial statistics produced by the Brazilian Judiciary.
In the third part, I will analyze judicial statistics in Brazil, their flaws and
challenges ahead.
It is important to note that this work does not intend to suggest public
policies but wishes to contribute to the debate on the modernization of the Brazilian
Judiciary, using the statistics system as a mean to achieve such goal.
1.THE JUDICIARY IN BRAZIL, ITS ORGANIZATION AND STATISTICAL DATA
1.1.THE ORGANIZATION OF THE BRAZILIAN JUDICIARY
Since the 1988 Constitution, the Brazilian Judiciary has been divided into two
major layers: the Judiciary of the states and the Federal Judiciary.
The Judiciary of the states is organized into twenty–seven State Courts,
according to the number of federate units, and comprehends the Regular and the
Small Claim Courts. Regular Courts are responsible for hearing in civil, family,
commercial, criminal cases, and include the Jury Court. The Small Claim Courts
areresponsible for hearing cases involving less complex claims.
The Federal Judiciary comprehends: Federal Courts, Labor Courts,
Electoral Courts, and Military Courts. The Federal Courts, which also comprises the
one of the parties. The Labor Courts hear all cases involving labor relations and
services characterized as work contracts. The Electoral Courts are responsible for
the cases related to elections, political parties, and democratic representative
offices in the Executive and Legislative branches. The Military Courts deal with all
cases involving military career officials and military police forces on dutyto prevent
and repress crime.
The Brazilian Judiciary also comprises the Federal Supreme Court, which
is responsible for judicial reveal, and the Superior Tribunal de Justiça, which
examines appellate decisions.
All organs belonging to the Brazilian Judiciary are independent and
autonomous in what concerns their internal organization and administration. They
have also autonomy to produce data on their activity, and to use such information to
evaluate their performance and plan future projects.
1.2.BRAZILIAN JUDICIARY’S STATISTICS SYSTEM
All organs in the Brazilian Judiciary have some type of information about
their activity. Usually, this information arises from judges’ monthly reports sent to
internal affairs. These reports inform judicial internal affairs about the quantity and
the quality of judges’ monthly activities. They include information on the caseload of
each court unit, of trials, and of cases disposed every month. 8
Once such data on court activity arise from the individual monthly reports by
judges, this information centers on what the judge does, not on what the cases
discuss. What is more, because reports are individual, there is no cross
examination between the data produced by trial judges and appellate courts. This
feature of the Brazilian judicial statistics system makes it impossible to identify the
average length of a lawsuit and of its progress within the institution.
Each of the courts has specific data storing systems, making communication
and integration with other justice institutions’ software unattainable.
Most courts make their information available on their internet web pages.
However, in most cases this information covers one month only or is presented as a
lump sum, making it impossible to assess the performance of individual areas.
Some courts have a data base that can classify the proceedings. The
classification system uses several criteria, according to the type of suit, the type of
proceeding, the type of procedural rules, or subject matter. However, these criteria
seem to be used rather loosely. The proceeding classification system in the State
Court of São Paulo, for example, uses 1,084 categories.
In addition to the information available on the internet web pages, until the
creation of the Judicial Council in 2004, the National Judiciary Database (Banco
Nacional do Poder Judiciário), attached to the Federal Supreme Court, was the
organ institutionally responsible for gathering and publishing data on the activities
of all Brazilian courts. 9
This database, still available on the web page, makes it possible to access
the annual progress of proceedings10 in the Superior Tribunal de Justiça and in the
State, Federal, Labor, Electoral and Military Courts between 1990 and 2004.
In what concerns information on the Federal Supreme Court, the national
database shows the progress of proceedings by year, starting in the 1940’s; and,
form 1990 onwards it shows also the number of cases by type of proceeding11 and
by subject matter12.
To give an example, according to the BNDPJ, 121.535 new cases were filed in
2006 with Supreme Court and 55.442 trials were held.
With the judicial reform in December 2004, the national database's function
of gathering and publicizing information was transferred to the National Judicial
Council (in Portuguese, Conselho Nacional de Justiça CNJ) which is now exclusively
responsible for presenting information on the Federal Supreme Court.
9 This data bank may be accessed on the internet on the Supreme Federal Tribunal page: http://www.stf.gov.br.
10 The data on proceedings progress correspond to the number of proceedings that entered the courts, of trials, and of published appeal decisions.
11 The BNDPJ presents the number of proceedings that were introduced into the courts in forty process classes.
1.3.THE NATIONAL JUDICIAL COUNCIL
The CNJ was created in December 2004 by Constitutional Amendment nr. 45
– on Judicial reform. Actively functioning from June 2005, the CNJ is a part of the
Judiciary and has fifteen members, among judges, prosecuting attorneys, lawyers,
and civil society representatives.
In Iberian, Eastern Europe or in Latin America, the implementation of
Judicial Councils in countries that have recently had judicial reforms, answered
mostly to the need to protect the Judiciary from the political interference other
government branches.
In Brazil the reason that led to the implementation of the National Judicial
Council was exactly the opposite of the movement above.
In our country, during the transition to democracy and especially after the
1988 Constitution, the Judiciary conquered budget independence and administrative
autonomy. Such warrants, reinforced by the argument that an impartial and neutral
Judiciary was necessary, grew to an overblown dimension, excusing the Judiciary
from the need to be transparent in the execution of its activity as a civil service
provider, and making society unable to control the functioning of this branch. 13
In view this scenario of court independence and autonomy, the debate on the
need for the external accountability of the Judiciary became one of the most
controversial issues during the judicial reform. Eventually, an accountability model
was reached, although it can not be completely characterized as external, for most
of its participants are members of the Judiciary. However, it at least performs
important supervising functions over the judicial activity administration.
In this sense, the CNJ’s main function is to supervise the administrative and
financial performance of courts, ensuring that these institutions are transparent
and accountable.14
13 CARVALHO, 2006.
14 Federal Constitution of 1988, art. 103–B: The National Justice Council is composed of fifteen members (…)§ 4th It is the Council’s
Presided by the Chief Justice of the Federal Supreme Court the CNJ has
been involved in important debates on the functioning of the Brazilian Judiciary. As
an example, we should mention its participation in the prohibition of nepotism in
the Brazilian courts and in other bodies of the Judiciary. This prohibition led to an
important movement to reform the administration of these institutions, resulting in
the dismissal of several employees who had not been approved in official public
examination.
Equally important was the definition of a maximum wage to judges15, with the
recommendation that promotions by merit for judges must happen in public
sessions, with the possibility of annulling public examinations for the office, when
there is suspicion of fraud16.
In the recent accusations linking judges and gambling mobsters of gambling
games, the CNJ has played a key role in guaranteeing transparency in the
investigations.
The CNJ has also become extremely important in what concerns the
gathering and publishing of statistics on court activities, being the very responsible
body for publicizing judicial statistics.
The Judiciary Statistics System was created right after CNJ began
functioning17. Courts in all states, including the Federal Court, must send data on
their activities.
These data have been published annually since 2004 in reports called
“Justice in Numbers” (in Portuguese, “Justiça em Números”) 18.
(…) II – (…) evaluate (…) the legality of the administration actions carried out by members or organs of the Judicial Power, being it possible to revoke, review or establish a deadline so that the necessary measures to exactly follow the law be adopted without impairing the Federal Audit Court’s competence; (…) IV – represent the Public Ministry in case of crimes against public administration or authority abuse; V – revise, by office or aggravation confronted, disciplinary proceedings of judges and members of tribunals that have been judged less than an year past; VI – elaborate every semester a statistical report on proceedings and ordered sentences in each unit in the Federation, in the varied organs of the Judicial Power; VII – elaborate an annual report recommending, whenever necessary, actions to be taken according to the situation in the Judicial Power and the activities in the Council (…).
15 According to CNJ Resolution, the maximum wage paid to magistrates is R$ 24.500,00 per month (circa US$ 12,900.00). 16 In May 2007 a magistrate entrance examination in Tocantins state was revoked under the suspicion of fraud, given the fact that two of the candidates were relatives of high judges in the tribunal of the referred state.
17 Resolution nr. 4, August 2005.
The information published by CNJ is organized in two groups: i) one
displays the numbers on the cost and structure of courts; ii) another deals with the
caseload for each court.
The CNJ reports also present data on judicial assistance and the
government’s participation in on–going judicial proceedings.
1.2.1.INFORMATION ON THE COST AND STRUCTURE OF COURTS
The numbers on the cost and structure of courts, allow us to check: i) the
cost of each court in relation to the GNP (Gross National Product) and GSP (Gross
State Product), ii) the costs with personnel; iii) the relationship between these
numbers and the total of inhabitants per State.
To give an example, in 2005, the cost of the Federal Courts equaled 0.2% of
the GNP19. Labor Courts spent an average of 0.42% of the GSP for each geographic
region20, and the cost of the State Courts reached 1% of the GSP21.
In relation to the number of inhabitants, the Federal Courts cost in 2005 an
average of US$11.00 per capita. Labor Courts cost US$17.00, and State Courts cost
an average of US$41.00 to each Brazilian citizen.
To have a glimpse of the functioning of the Brazilian Judiciary, according to
the most recent CNJ report, the number of judges per inhabitant in 2005 was as
follows:
19 In 2005 Brazilian GIP was R$ 387.519.600.000,00 (circa US$ 203,957,680,000.00).
20 Labor Court is organized into twenty–four regions. Most of these regions correspond to a Brazilian state.
NUMBER OF JUDGES PER EVERY 100,000 INHABITANTS (AVERAGE,2005)
Federal Court 0,82
Labor Court 1,57
State Court 6,97
Source: CNJ Report, Justice in Numbers 2005
The regions with the smallest judges/inhabitants ratio are the ones most
urbanized, most populated and the richest, such as São Paulo, which has 0.62
federal judges per 100,000 inhabitants, 1.57 labor judges and 4.98 state judges per
100,000 inhabitants.
1.2.2.INFORMATION ON THE CASELOAD
Data on caseload present: i) the number of new cases per judge and per
100,000 inhabitants; ii) the caseload – which is the result of the number of cases
that were not solved in the previous period (pending cases) plus the number of new
cases; iii) the congestion rate, which is the result of the number of cases disposed
divided by the number of those still pending.
According to data available, in 2005, 944,197 new cases were filed in
Federal Courts, 2,826,563 in Labor Courts and 7,740,803 in State Courts. These
numbers represent an average caseload of 2,607 cases per judge.
Besides presenting some of the complexities of the Brazilian Judiciary,
these examples intend to indicate the innovation in the judicial statistics
implemented by CNJ.
Comparing the information in the “Justice in Numbers” reports to that on
the courts web pages, or even to that published by national database, we notice that
the judicial statistics and its publicity have been heading towards modernization.
Generically speaking, it is possible to say that these changes may be an indication
that the Brazilian Judiciary is becoming more transparent and accountable.
The indicators and the guidelines offered by research institutes and
international agencies that work with judicial statistics seem to confirm this
2.JUDICIAL STATISTICS:AVISION OF THE RESEARCH INSTITUTES AND THE WORLD BANK
Judicial statistics have become a subject of study to many research institutes
and to legal scholars in general. The analysis of judicial statistics is a valuable
instrument to evaluate court performance and their administrative capability, being
also a tool to compare with international data.
Legal scholars that have been pondering over some minimum requirements
that judicial statistics should contain to allow for sound critical analysis. So that we
can establish criteria to evaluate the statistics produced by the Brazilian Judiciary, I
will now present the studies elaborated by four different institutions in compared
perspective.
One of the institutions that has been studying judicial statistics for a long
time with a special focus on developing Latin American countries is the Center of
Justice Studies of the Americas (in Spanish, Centro de Estúdios de Justicia de las
Americas – CEJA). Attached to the OAS (Organization of American States), the CEJA
has as one of its goals the mission “to generate and disseminate instruments to
improve information about Justice in America”22. That considered, and also
envisioning a better quality in public policies implemented in the justice area, the
CEJA recommends that the Judiciary produce judicial statistics on its activity, that
this information be available, updated, and of quality, and that it can be compared
with other information systems, both national and international23.
The CEJA also recommends that the information produced by the Judiciary
must cover the number of new cases, on–going cases, pending cases, and cases
ones. These data must be organized by subject matter, by type of court (trial or
appellate) , and by jurisdiction. They must be clear, easily accessible and in plain
language. Besides, it is important that the information available covers annual data
of, at least, a previous five year period in order to make possible to follow the
history of the activities performed by courts.
Another research institute that also has judicial statistics as a subject of
study is the Center of Studies of the Faculty of Economy of the University of
Coimbra, Portugal (in Portuguese, Centro de Estudos da Faculdade de Economia da
Universidade de Coimbra – CES). In a report entitled “For a Judicial Reform
Agenda” (in Portuguese, "Para uma agenda da Reforma da Justiça"), the CES
suggests the need to create indicators and quality standards allowing the internal
and external evaluation of the courts. According to the CES, this evaluation should
serve as a parameter for the debate on Judiciary reform projects.
More specifically, “The Acts and the Times of Judges: Contributions to the
Creation of Indicators of Procedural Distribution in Civil Courts”, a research carried
out by the Permanent Observatory of the Portuguese Justice (in Portuguese,
Observatório Permanente da Justiça Portuguesa), a CES research center, shows
the relevance of judicial statistics to determine the quality and efficiency in the
administration and management of courts. This judicial statistic should include not
only the number of new and of cases disposed, but also their areas in law, and the
relative expected time spend to reach the end of a case24.
The World Bank considers judicial statistics crucially important for the
administration of courts, and has been using it not only to understand the Judiciary
of those countries receiving loans, but also to recommend projects to reform their
judicial system. 25
One of the means to evaluate judicial administration is the statistical system
of Judiciary bodies. These statistics should serve as a tool for i) judges, in the
administration of their courts; ii) legislators, in the evaluation of the conflicts that
spring from the elaboration of a law; iii) citizens, that use the Judiciary, as a way to
reduce judicial uncertainty. It is thus necessary to have data on: the number of
cases per year, the number of cases disposed per year, the number of pending
cases at the end of each year, the clearance rate, the congestion rate, the average
duration of each case, and the number of judges per inhabitant.
24 www.ces.uc.pt
The World Bank recommends that these data focus preferably on the
caseload. The size, the content and the age of data banks are important so that
each court may identify what is not being decided. The possibility of comparing
these information systems to systems used in other countries is crucial, and there
must also be a coordination and centralization of these data to make it possible for
both government and society to evaluate the quality of the Judiciary in their
country26.
Finally, the European Commission for the Efficiency of Justice – CEPEJ 27, an
organ of the European Union Council working on the elaboration of policies to
improve Justice efficiency, considers that judicial statistics are essential to the
organization of institutions and their activity.
According to the CEPEJ, an effective information system must contain data
that may be compared to other systems. Thus, it is necessary to have information
on: i) the number of cases filed; ii) the number of cases disposed; iii) the number of
cases pending. These data must be organized by period and by jurisdiction. There
must also be a uniform method and criterion for their collection and classification.
In the CEPEJ evaluation, the information on structure and competence of the
courts have the same weight.
3. THE EVALUATION OF THE BRAZILIAN JUDICIAL STATISTIC FROM THE PERSPECTIVE OF
COMPARATIVE STUDIES
Brazil follows only in part the guidelines offered by research institutes and by
the World Bank.
Concerning the type of data collected, Brazil follows the recommendation of
international indexes: the Brazilian Judiciary has a statistic system which presents:
i) the number of cases; ii) the number of cases pending; iii) the number of cases
disposed.
Nevertheless, the Brazilian judicial statistics have problems in what
concerns the way data is collected, their organization, consistency and reliability,
and their use in the administration of courts.
As to the way the information is collected, data comes from individual
reports by judges. Judges, in their turn, are unable to track the itinerary of a
specific lawsuit within the Judiciary, nor the time it will take for it to be concluded,
nor the decision for each type of case.
Gathering information from these individual reports also impairs the
organization by subject matter, rendering it impossible to know which areas of Law
present most conflicts or even those courts are less capable to find solutions for.
It also hinders the use of such data to improve courts’ administration: it is
difficult to trace back the path of a lawsuit within the institution, undermining the
integration of statistics for each.
Thus, even though the courts count on a service that generates information
on their activity they do not have an integrated system between the trial and
appellate courts. The lack of integration causes the loss of information and makes
it impossible to trace the path of individual lawsuits. The impossibility to trace back
their path, impairs the evaluation of the performance of the institution: these are
crucial points for the system and therefore must be changed.
The absence of complete information on the lawsuits shows that this kind of
data is not useful for the management of the institutions’ activity and for the
planning of modernization projects. Not to mention that the information is produced
by personnel with no specific training and that, oftentimes, have been transferred
from other areas.
This lack of expertise in data gathering is also noticeable because of the lack
of criteria to classify lawsuits, be them by subject matter, type of suit, type of
proceeding and of procedure.
What is more, considering the justice system, there is no communication
between Courts and Public Attorney’s Offices: a recent survey in eight Brazilian
specific technology, which sometimes prevent the exchange of information with
other systems28.
Finally, regarding the consistency and reliability of the data gathered, it is
enough to cross part of the available information to verify that the Brazilian judicial
statistics system still has a long way to go.
Comparing the data presented in the annual reports by CNJ and the
information available on the courts’ web pages, one can notice, for example, there
is discrepancy of data regarding the ratio number of judges/ population available on
the Federal Courts site29. This may be due to the fact that according to these data,
the population in the third region of the Federal Court, which corresponds to the
states of Mato Grosso do Sul and São Paulo, decreased by 700,000 inhabitants
between 2005 and 2006.
Another example is the number of new cases in the Labor Courts in 2005: the
available number on the Superior Labor Court web page does not correspond to the
one presented by CNJ: according to the web page, 535,593 new cases were filed in
2005, whereas the report mentions only 311, 156 new cases.
All things considered, it looks as if the centralization and publicizing of
statistics by a single organ is not enough. A standardized information collection is
also needed to have consistent and reliable data, likely to be compared with
national and international statistics systems.
FINALREMARKS
To sum up: Brazilian Judiciary produces data on its activity, but these data
refer basically to the number of cases handled by the institution, being impossible
to determine the pace of proceedings, the parties or even the most frequent types
28 In all tribunals over the twenty–six states and the DC in Brazil, it is possible to track proceedings progress on the internet, on the tribunals’ page, using the proceeding number. With the exception of the Tocantins State Court, this procedural tracking is accessible in the first and second instances.
of cases. It is difficult to identify, therefore, the purpose of judicial statistics in
Brazil.
Unlike other areas in which the State has a major role, such as healthcare
or education, the information produced by the Judiciary can not be translated into
public policy proposals to improve services offered to the population. This diagnosis
can indicate that the Judiciary does not see itself as public service, but simply as a
watchdog for constitutional rights and warrants.30 It also hints that the country is
still far from fulfilling contemporary democracy’s requisites of accountability and
responsiveness mechanisms.
The debate on the need for transparency and accountability in Brazilian
Judiciary is fairly new. Even though the military government faded out and a civil
government was elected more than twenty years ago, the possibility of the external
accountability of the Judiciary is still a controversial issue for bureaucrats and,
especially, for judges, public attorneys and lawyers. The reaction against the
production and publication of information on the activity of courts mistakenly
echoes the meaning given to the terms transparency and independence in the 1988
Constitution.
If there is consensus on the need to update and modernize procedure, the
same does not apply to the problem of external accountability of the Judiciary. Even
during the elaboration process of the Constitutional Amendment nr. 45, the need
external accountability was one of the most controversial issues. That is why it is
possible to say that the creation of the National Justice Council represents a huge
step ahead for the country since this council demands more transparency from
courts.
CNJ members together with the Federal Supreme Court, to whom, at this
initial moment, the responsibility to confer constitutional legitimacy to courts
decisions was given, has a long way to go and several obstacles to overcome in
order to impose a culture of transparency and control in the Judiciary.
In October 2006, the CNJ decided to recommend to courts that settlements
be classified as court decisions. The rationale for this is that trial judges would not
have any interest to promote settlements once they did not count as decisions and,
thus, would not influence these judges’ productivity index.
If this recommendation is adopted by the courts, it will no longer be
possible to check the efficiency of in–court settlements in Brazil, nor to identify the
areas in which they happened, nor what type of conflict is more likely to be settled,
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