The Platform

Brazil's Supreme Court. (Agência Brasil)

Brazilian courts are increasingly deciding cases based solely on precedent. However, the country does not have a specific theory about working with precedents and its judicial culture is unable to support this approach.

The concept of following judicial precedents is more familiar to countries with an Anglo-Saxon culture than to those of Romano-Germanic origin. Traditional civil law doctrine always recognized that the centrality of the system was to be found in the law. On the other hand, in countries with common law traditions, the rule of law derives from jurisprudence.

However, the approximation of legal systems is a reality, and in Brazil, the most important step in the escalation of judicial precedent occurred recently. After more than four years of processing between the two legislative houses, on May 16th, 2015, Act 13,305 was the first act to insert a list of precedents with mandatory effectiveness in the CCP.

Considering their potential danger, it is necessary to improve knowledge about such concepts that are atypical of Brazilian legal culture and move towards the construction of a Brazilian theory on judicial precedents.

Since the legal change, the doctrine and the judiciary actors have struggled against some barricades. For example, going deep into techniques to identify the binding part of the precedent (ratio decidendi) and to apply it (distinguishing and overruling). Furthermore, they must fight against the established culture of copying parts of the syllabus in petitions and even decisions without the analyses of the entire case.

Despite the arduous process of implementing binding precedents, the implementation of the Code of Civil Procedure results in positive consequences, as exemplified by a ruling from the Superior Military Court.

It was the first military court’s judgment using a new procedure inaugurated by the Code of Civil Procedure of 2015. The Incident of Resolution of Repetitive Demands (IRRD) is applicable when there is an effective repetition of processes that discuss controversy on the same issue solely of law and risk of offense to equality and legal certainty.

The Military Public Prosecutor’s Office provoked the incident after an appeal against a judgment from the 3rd Military Judicial District that charged an active-duty soldier with drug trafficking.

When the defendant was discharged from the Army, a military judge decided that he should be considered a civilian and tried by a federal judge rather than a panel of military and non-military judges.

The Rapporteur Justice requested information on the subject matter of this IRRD. The Code of Civil Procedure determines that the Justice shall hear the parties and other interested parties, including people, bodies, and entities with interest in the controversy. However, the Superior Military Court went further in determining the manifestation of all organs of the military judiciary system, as well as the Commands of the Armed Forces and the Federal Attorney General’s Office, giving the maximum interpretation to the legal provision and guaranteeing the most significant possible amplitude in the debate.

The incident was judged by the court, which, after great discussion, decided that they must consider the condition of the military at the moment of the crime, an occasion in which the Armed Forces’ core values of hierarchy and discipline were violated by the former soldier.

Brazil’s Supreme Court confirmed the judgment of the Superior Military Court, leaving the precedent intact.

Although the Judiciary had specific expertise in military trials, the example demonstrates the commitment of the Court to creating a solid precedent based on a debate between interested parties, as well as consensus among members in forming a binding thesis.

Tatiana Paula da Cruz is a PhD candidate at the University of Brasília. Tatiana holds a Master’s in Law degree from the State University of Rio de Janeiro (UERJ). Tatiana is also a Brazilian Air Force Officer. Tatiana is also a member of the Brazilian Association of Civil Procedure. Tatiana is a Visiting Scholar at the University of Wisconsin – Madison.