Judicial administration in Brazil: courts caseload statistics

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working papers

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ESTE É

UM ARTIGO EM ELABORAÇ

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JUDICIAL ADMINISTRATION IN BRAZIL: COURTS CASELOAD STATISTICS

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ESTE É UM ARTIGO EM ELABORAÇÃO. PROIBIDO CITAR SEM AUTORIZAÇÃO DO AUTOR / WORKING PAPER. PLEASE DO NOT QUOTE

JUDICIAL ADMINISTRATION IN BRAZIL: COURTS CASELOAD STATISTICS

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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.

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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

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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.

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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.

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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

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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

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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.

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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.

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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

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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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,

(22)

BIBLIOGRAPHY

CARVALHO, Ernani. O controle externo do Poder Judiciário: O Brasil e as

experiências dos Conselhos de Justiça da Europa do Sul. Brasília, Senado Federal:

Revista de Informação Legislativa, a. 43, n. 170, abril/junho, 2006, pp. 99 – 109.

CUNHA, Luciana Gross. Juizados Especiais: criação, instalação e funcionamento e a democratização do acesso à justiça. Tese de doutorado. Departamento de Ciência

Política da FFLCH/USP, 2004, mimeo.

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