Remote Adjudication in the Brazilian Judiciary

COVID-19 Reports on Latin America and the Caribbean: No. 12 (Em Português)

After President Jair Bolsonaro declared a state of public emergency due to the transmission of the coronavirus, the judiciary adopted several measures in order to preserve the health of judges, civil servants, employees and the public and, also, to maintain adjudications. 

Associação de Advogados do Estado de São Paulo (AASP)

Courts had little time to adapt to the new reality and, naturally, in the first months there were a lot of complaints from the lawyers. According to the Association of Lawyers of the State of São Paulo, the main complaints of these professionals during this period are related to the suspension of procedural deadlines for physical cases; the lack of standardization of normative acts between the courts, and the difficulty of orders in chambers with the judges.

The initiatives varied taking into consideration the differences of each court in Brazil, but over time, there has been a joint effort so that remote adjudication remained business as usual.  Since the beginning of the pandemic, the Federal Regional Court of the 1st Region, for example, guaranteed essential services by the Federal Justice of the 1st Region, maintaining urgent jurisdictional activities, as determined in Resolution No. 9985909, such as the assessment of habeas corpus and injunctions.  

According to the National Council of Justice (CNJ) (the public institution responsible for the control and administrative and procedural transparency of the Brazilian Judiciary), “the use of videoconferencing tools to assist citizens during the pandemic of the new coronavirus (Covid-19) brought positive results in the productivity of the Judiciary.  And the emergency situation also led to a paradigm shift. (Original text: “o uso de ferramentas de videoconferência para atender os cidadãos durante a pandemia do novo coronavírus (Covid-19) trouxe resultados positivos na produtividade do Poder Judiciário. E a situação de emergência levou ainda a uma quebra de paradigma.”).” Likewise, civil servants and employees who work in the courts have performed their activities at home, through various technological applications that were already in use, without reducing the quality of jurisdictional and administrative activities.  “These recent times have cooperated to make us realize that the technological advances already offered us much more than we imagined.  The fact is that tradition made us resist taking advantage of all this potential.  During the pandemic, fortunately, tradition gave way to the unfathomable jurisdiction and we were forced to adapt to the new reality (original text: “Os tempos recentes cooperaram para percebermos que os avanços tecnológicos já nos ofereciam bem mais do que imaginávamos. O fato é que a tradição nos fazia resistir ao aproveitamento de todo esse potencial. Durante a pandemia, felizmente a tradição cedeu à inafastabilidade da jurisdição e fomos obrigados a nos adaptar à nova realidade”),” explained Minister Luiz Fux, president of the CNJ, during the 318th Ordinary Session of the Council.

Conselho Nacional de Justiça (CNJ)

The investment in technology, specifically in digitization of proceedings and artificial intelligence, has been paramount in order to streamline the judicial process and transform physical proceedings into a digital format, making the electronic system more efficient and also accessible to the visually and hearing impaired. 

In some courts, online trials have been going on for some time and have intensified in this pandemic period.  Law No. 11,900 / 2009, from January 8, 2009, which amended the Code of Criminal Procedure, for example, allows for the interrogation of an incarcerated defendant by videoconference and also witness testimonies.  The Code of Civil Procedure, section II, also provides for virtual hearings.  In April of this year, Federal Law 13,944 / 2020 was enacted, which establishes the mandatory appearance of the parties in the virtual settlement hearings, under penalty of extinguishment or default.  The technologies used for hearings and judgments are optional for each court, but the CNJ implemented the Emergency Video Conferencing Platform for procedural acts to provide yet another option to the Brazilian courts and judges.  As of October 2020, more than 685,000 videoconferences have been held.

Technological innovations are ongoing in the Brazilian Judiciary. On October 6, 2020, the recently sworn in president of the National Council of Justice and the Federal Supreme Court approved the implementation of the “100% Digital Justice” (Resolution No. 345) to run procedural acts exclusively electronically and remotely. However, it is optional and will be exercised by the plaintiff upon filing the action, and the defendant may oppose this option until the moment the answer is due.

By Marilia Mello and translated into English by Abby Dos Santos

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