Judicial Rulings with Prospective Effect in Brazilian Law
© Springer International Publishing Switzerland 2015
Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_1313. Judicial Rulings with Prospective Effect in Brazilian Law
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Rio de Janeiro State University, Rua Almirante Saddock de Sa, n 98, ap. 501, Ipanema CPF 016.692.127-00, Rio de Janeiro, RJ, 22411-040, Brazil
Abstract
The text summarizes the evolution of the theory of precedent in Brazilian law, examining the innovations incorporated to the 1988 Constitution, the Code of Civil Procedure and the current text of Bill for the new Code of Civil Procedure. Then, the consequences of judicial expansion in Brazilian law are examined, as well as the judicial rulings with prospective effect, its situation nowadays, and its perspectives with the Bill for the new Code.
Keywords
JudicialRulingsProspectiveEffectBrazilian lawGeneral Reporter: Humberto Dalla Bernardina de Pinho. (Many thanks to my assistant reporters from Rio de Janeiro State University, hereby nominated: Ana Carolina Squadri (Master in Procedural Law at the State University of Rio de Janeiro. Federal Attorney AGU). Andre Roque (Master in Procedural Law, currently pursuing a Doctorate, from UERJ. Professor of Civil Procedural Law in post-graduate courses. Attorney-at-law). Diogo Almeida (Doctor in Procedural Law at Rio de Janeiro State University. Partner in the Rezende de Almeida Advogados law firm, Rio de Janeiro). Fernanda Medina Pantoja (Master’s degree, pursuing a doctorate in Law from Rio de Janeiro State University. Professor at the Catholic University of Rio de Janeiro – PUC-Rio. Partner in the Wald & Associados Advogados law firm, Rio de Janeiro). Flavia Pereira Hill (Doctor in Procedural Law at the State University of Rio de Janeiro. Notary public in Brazil). Guilherme Luis Quaresma Batista Santos (Master in Procedural Law at the State University of Rio de Janeiro. Attorney-at-law since 2003, and legal consultant on litigation at Petrobras, since 2004). Leonardo Faria Schenk (Doctor and Master in Procedural Law from Rio de Janeiro State University. Professor of Civil Procedural Law at the La Salle Higher Institute of Higher Education – UNILASALLE/RJ – and the Rio de Janeiro State School of Magistracy. Attorney-at-law). Marcio Faria (Master’s Degree, currently pursuing a Doctorate, from UERJ. Assistant Professor of Procedural Law – UFJF. Member of the Institute of Attorneys of Minas Gerais – IAMG). Mauricio Vasconcelos Galvão Filho (Founder of the Electronic Review of Post-Graduate Procedural Law, UERJ – www.redp.com.br. Master of Law from Rio de Janeiro State University. Specialist in Public and Private Law from EMERJ/UNESA. Attorney-at- law at the National Economic and Social Development Bank). Roberto Rodrigues (Master of Law and pursuing a doctorate in Law from Rio de Janeiro State University. Federal Attorney). Trícia Navarro (Doctor in Procedural Law at UERJ. Master in Procedural Law from UFES. Judge in Espírito Santo State, Full Member of the Brazilian Institute of Procedural law – IBDP)).
Associate Professor at Rio de Janeiro State University. Attorney General’s Assistant for the State of Rio de Janeiro. http://www.humbertodalla.pro.br. humbertodalla@me.com.
Initial Remarks: Brazilian Law and the Mechanism of Precedent
Brazilian law belongs to the family of Civil Law, formed on the basis of the Roman-Germanic tradition. Unlike what happens under the system of Common Law, based on case law and the principal of stare decisis, prevalence is given to the sources of written law, whose provisions tend to be condensed into codes.
Brazilian independency came about in the year 1822,1 yet only in 1850 did the new country begin to have a law to deal with judiciary organization and the civil proceeding.2 Prior to that, the Portuguese procedural legislation was in force in Brazil.
On inheriting Portuguese law, the Brazilian system went so far, in its earliest stages, as to hear the so-called “settlements” of the House of Appeals, consisting of interpretative guidelines seeking to overcome doubts of judgment, which the lower-level judges were obliged to follow.3 However, as they were rarely used in practice, they were abolished at the time of proclamation of the Republic in 1889.
In 1963, the Federal Supreme Court (STF) published its first statements, recording the unanimous or majority interpretation adopted in analogous cases in relation to a given legal issue. This was a groundbreaking move in the consolidation of case law, even though its normative statements took on merely moral or persuasive force. In 1988, the new Brazilian Federal Constitution provided for the creation of another court at national level, the Higher Court of Justice (STJ), which was allocated competence to judge cases discussing non-constitutional issues.
There was, thus, a sharing of responsibility for ensuring compliance with the rules throughout the entire country and the standardization of national case law between the STF (constitutional cases) and the STJ (infra-constitutional cases).
Subsequent reforms, from the 1990s onwards, conferred even greater effectiveness on precedents, by developing various mechanisms that allow speeding-up the proceeding, through the preliminary rejection of the plea4; the impediment of appeals,5 and their judgment by the reporting judge alone, when there is a statement or reiterated stance from the court.
Meanwhile the first precedents with binding effect, since the distant Portuguese settlements, were born in the field of controlling constitutionality. The structure established a mixed system, allying diffused control (granting competency to any organ of the Judiciary Branch to hear the issue of unconstitutionality) to the concentrated model.
This latter attributed to the STF the function of deciding, by means of a direct action, on the constitutionality or unconstitutionality of a law, producing precedents with effectiveness erga omnes and binding effects in relation to the organs of the Judiciary Branch and the federal, state and local Public Administration.6
Finally, in 2004, Constitutional Amendment No. 457 instituted the possibility of the STF issuing statements with binding effects, while maintaining the persuasive effectiveness of those already published, also limiting the examination of appeals by the constitutional court to those displaying “general repercussion”.8
Along these lines, case law is not acknowledged as a formal source of law, given that it does not possess the force of law. In general, precedents are attributed a complementary value, as they express, in a subsidiary manner, the content of the rules and principles that make up the Brazilian legal system.
In other words, judges do not have a functional duty to follow, in successive cases, previous decisions handed down in analogous situations. However, the Higher Court of Justice, whose primordial function is to strive for the uniformity of interpretation of the federal legislation, has already asserted the importance of respect for precedents.
On the other hand, we find a clear trend of evolution towards granting ever-greater important to case law, just as happens in the countries of the continental European system. The force conferred on precedents is really quite convenient in the case of a country with continental dimensions, in which the large number of state and federal courts imposes greater care for the uniformity of the law.
The phenomenon of granting greater efficacy to court decisions can be identified in the numerous changes that have been made to Brazilian procedural legislation in recent decades. The upshot of these consecutive changes is that our current system contains precedents with efficacy at different levels, namely, persuasive, those preventing appeals and, at the highest level, binding precedents.
There is also the expectation that a new procedural code will be adopted, this currently before the legislature, which will change deeply the theory of precedents, incorporating the idea of standardization and stability of case law, obliging judges to follow it.
Hypotheses Addressed in the Federal Constitution
Identification of the system of precedents in the Constitution of the Federative Republic of Brazil depends on the search in the constitutional text for rules that give treatment to court decisions on merit that may serve as a reference for the hearing and judgment of future court cases, linked to the legal issue already decided on.
The first three hypotheses of precedents within the scope of the Federal Constitution derive from decisions on merit on issues of law handed down in objective judgments of constitutionality of legal rules made by the Federal Supreme Court in relation to (1st) direct actions of unconstitutionality (ADIn) of a law or federal or state normative rule, (2nd) declaratory actions of constitutionality (ADC) of a law or federal normative rule, stated in article 102, sub-item I, letter “a” of the CRFB (Constitution of the Federative Republic of Brazil) and the (3rd) actions of Asserting Non-compliance with a Fundamental Precept (ADPF), as set forth in article 102, 1st paragraph, of the CRFB.
Decisions rendered in an ADIn, ADC and ADPF constitute legal precedents in relation to a question of merit in matters of control of constitutionality9 and control of non-compliance with a fundamental precept, with the application of the two former as legal precedents arising from the express provision stated in article 102, 2nd paragraph, of the CRFB/1988.
The 4th (fourth) hypothesis of a precedent occurs in the sphere of actions of a subjective nature, in relation to the judgment of extraordinary appeals in situations of appellate competency, with the demonstration of general repercussion, pursuant to article 102, sub-item III and 3rd paragraph of the CRFB, with the decision on the issue of merit of a constitutional nature amounting to a precedent, or rather, an issue of merit resolved in a situation of general repercussion will constitute a legal precedent.
Also within the realm of the Federal Supreme Court, the 5th (fifth) hypothesis of a precedent refers to the binding statement, addressed in article 103-D of the CRFB, along the lines proposed by Constitutional Amendment No. 45, where a legal statement formulated by the Constitutional Court will be held to be a precedent.
The 6th (sixth) hypothesis of a precedent occurs in the realm of the Higher Court of Justice, in relation to decisions on merit on a question of law in a special appeal (article 105, sub-item III, CRFB).
We may thus conclude for the existence of 6 (six) hypotheses of constitutional rules that regulate the mechanism of precedents in the Brazilian Federal Constitution. However, we shall now focus on the two most important: the binding statement and general repercussion of the extraordinary appeal.
Addressed in article 103-A of the Federal Constitution, the binding statement was introduced into the Brazilian legal system, seeking to endow judgments with predictability, to ensure legal security in relations, while also allowing citizens equal treatment in identical situations handled by the Judiciary.10
The binding statement may be defined as a generic statement, with a normative standard, drafted by the Federal Supreme Court after reiterated judgments whose controversy is current and may lead to the multiplication of identical cases, adopting a determined legal position that is to be applied in similar cases within the scope of the Judiciary and the other Branches.11
This mechanism of binding precedents seeks to establish the interpretation of the Federal Supreme Court as being the correct one, in this way avoiding divergence of understanding within the Judiciary Branch itself, which might lead to the weakening and discredit of the Branch before society.12
In the opinion of doctrine, the origin of the binding statement lays in the Portuguese settlements, which consisted of doctrine with obligatory force established by the courts as a source of law for similar cases.13
In Brazil, Law No. 11.417/2006, in its turn, regulated the binding statement, establishing the form to be taken in the procedure for drafting the statement. The law states the parties enjoying legitimacy to propose the issue, review or cancellation of the statement, the quorum of 2/3 for approval, the possibility of manifestations by third parties, the efficiency of the statement over time, that is to say, it addresses the procedural aspects of preparation of the statement.
Besides the legal provision, the Internal Regulations of the Federal Supreme Court establish rules of internal effectiveness for issuing a binding statement. It should be noted that article 354-G of the Internal Regulations states that handing the proposal for the issue, review or cancellation of a binding statement will be by electronic means, and the citizens will have access to the corresponding information at the site of the Court.
Considering that the development of Law is healthy, a change in the understanding of the Federal Supreme Court was provided for by the Constitution in article 103-A, 2nd paragraph, in stating that the review or cancellation of a binding statement may be brought about by those who may file a direct action of unconstitutionality.
General repercussion may also be considered as a mechanism of binding a precedent, with the legal nature of a condition for the admissibility of an extraordinary appeal.
Introduced into the Federal Constitution in 2004, art. 102, 3rd paragraph, states that “in the extraordinary appeal the appellant shall demonstrate the general repercussion of the constitutional issues discussed in the case, in the terms of the law, for the Court to examine admission of the appeal, and may only refuse it through a manifestation by two-thirds of its members”.
General repercussion is also addressed in the Internal Regulations of the Federal Supreme Court, since the publication of Amendment No. 21/2007.
Law No. 11,418/2006 disciplines the issue, establishing, besides the new mechanism for handling extraordinary appeals, the multiplying effect of the decision to acknowledge general repercussion. It may thus be said that general repercussion involves a filter for appeals, precisely a means of containing the case, which establishes what issues the Federal Supreme Court is to judge.14 It falls to general repercussion to speed up the cases under way before the Higher Court, and also the other courts, given its multiplier effect.
It should be stressed that the existence of general repercussion is presumed, taking into account that only with the vote of eight judges will the constitutional issue be set aside.
Precedents and the Code of Civil Procedure
As already stated, the figure of the judicial precedent consists of a mechanism foreign to Brazilian legal culture, traditionally affiliated to civil law. However, it is precisely the logic of the doctrine of stare decisis that inspires the greater part of the procedural mechanisms introduced into the Brazilian Code of Civil Procedure by the legislative reforms carried out since the 1990s.
These reforms had the clear aim of strengthening case law, through institution of the above-mentioned binding statements, and also preliminary judgments, mechanisms for filtering appeals and judgments by sampling.
Notwithstanding its classical submission to the primacy of the law, considered as a primary source of Law, the Brazilian system has been progressively incorporating the notion of legal precedents endowed with binding, and not merely persuasive, effectiveness, to decisions following those rendered in identical or analogous cases.
The first stage of the legislative reform in question was implemented by Laws Nos. 8038/90, 9139/95 and 9756/98, which changed the wording of art. 557 of the CPC (Code of Civil Procedure) to allow the reporter to summarily dismiss an appeal when it is patently inadmissible, groundless, impaired or contrary to the contents of a statement or dominant case law at the respective court, either the STF or a Higher Court, while also allowing its provisional acceptance, if the decision appealed is in patent conflict with a statement or dominant case law at the STF or a higher court.
A similar line was taken by Law No. 11,276/2006, in changing provisions of the Code of Civil Procedure, adding to article 518 the 1st paragraph,15 which contemplates the faculty of the judge to refuse to hear an appeal lodged against a sentence which is in line with the understanding materialized in a statement from the STJ or STF.
In allowing the refusal to hear an appeal that challenges a sentence that is conformant with the statements of the STJ or STF, this mechanism, referred to by Brazilian doctrine as “a statement preventing appeals” stands out, without the slightest doubt, as one more step by the Brazilian lawmaker towards the search for the greater standardization and binding effect of case law.16
Law No. 11,277/2006, in its turn, in adding article 285-A to the Code of Civil Procedure, instituted a procedural mechanism known as “preliminary rejection of the plea” or “preliminary sentence of groundlessness”, which allows the judge, in cases discussing issues of law exclusively, to reproduce a sentence rendered in a previous identical case, with no need to even cite the defendant.
The Higher Court of Justice recently established the understanding that preliminary sentences of groundlessness based on this provision may only be rendered if the understanding set out in them lines up with that of dominant case law at the higher courts, particularly the STJ itself or the STF, and thus the existence of a precedent at the same entity of judgment intending to apply article 285-A is not sufficient.17 In spite of setting aside the literal nature of the provision in question, this interpretation confers on the mechanism the function of standardizing case law, lining it up with the other mechanisms that pursue this objective.18
Judgment “by sampling” of repetitive extraordinary and special appeals, on the other hand, disciplined by articles 543-B and 543-C of the CPC, instituted, respectively, by Laws Nos. 11,418/2006 and 11,672/2008, consists of instruments par excellence for standardizing case law.19
Just a few cases are chosen which, given their characteristics, represent in the fullest and most reliable way possible the question of law involved. Thus, the understanding established by the STF or STJ at the time of their judgment(s) would then be applied by the lower courts in all other similar appeals that were suspended, awaiting the decision on the paradigm appeal(s).
With specific regard for the handling of repetitive extraordinary appeals, article 543-B inaugurated the new methodology, in instituting a prior incident of assessment of the existence of general repercussion by sampling. This incidence consists of an objective procedure, which goes beyond the original interest of the parties and whose outcome is equivalent to the creation of a general legal rule by the Federal Supreme Court.20
The Bill of the New Code of Civil Procedure
In procedural matters, the great event of 2010 was submittal to the National Congress of the bill for a new Code of Civil Procedure (Legislative Bill No. 166/2010, on the initiative of the presidency of the Federal Senate).21 Voting has been concluded in the Senate, with approval of substitution made by the Reporter, Senator Valter Pereira, and the bill is currently before the House of Representatives under the No. 8,046/2010.
Besides conserving all the instruments focused on rationalizing the treatment of much-repeated cases, the Bill devotes a new chapter to regulating the Legal Precedent, imposing on the courts the duty to standardize and keep their case law stable, with the issuance of pronouncements equivalent to the statement of their dominant case law (art. 520).
To put into effect this express guideline, which asserts its harmony with the principles of legality, legal security, reasonable duration of the case, the protection of trust and isonomy, the Bill imposes observance of the parameters22 set out in art. 521.
The new Code also admits and regulates, in the same provision, the procedure required to overcome the legal precedent (overruling), allowing the possibility of modulating the effects (prospective overruling), in considering the protection due to legal security, trust and isonomy.
There is also authorization for the judge to set aside application of the precedent to the case in point, provided there is a demonstration, clearly and properly supported, of the existence of a distinction in the case being judged (distinguishing) or superseding the understanding (overruling).23 , 24
Quite clearly, the regime of strengthening Precedents makes the admissibility of the case or the preliminary rejection of the plaintiff’s plea conditional, in this latter case without the defendant’s being cited.
In cases that dispense with the phase of proof, the preliminary decision for rejection is authorized in the Bill, when the case does not comply with a statement or ruling rendered in repetitive appeals by the Federal Supreme Court or Higher Court of Justice, or contrary to the understanding established in the incident of resolution of repetitive cases, or the assumption of competency or, also, when contrary to the pronouncement of a statement from an appellate court on local law (art. 333).
In the area of appeals, the Bill preserves the power of the reporter to reject out of hand acceptance of an appeal contrary to the guidance of the legal precedent (art. 945). One of the principal innovations of the new Code lays in creation of the so-called incident of resolution of repetitive cases, provided, given the asserted risk of an offense to isonomy and legal security, for the unified solution of serial cases containing a controversy on one selfsame issue of law (art. 988).
Regulated in such a way as to allow the full participation of the parties and others interested (amicus curiae), the incident allows the reporter, following the judgment of admissibility, to determine the suspension of pending cases, either individual or collective, under way in the state or region (arts. 989–994).
Once the incident is judged, “the legal thesis will be applied to all individual or collective cases that address an identical question of law or under way in the area of jurisdiction of the respective court”, this also affecting future cases (art. 995), although a complaint is fitting against decisions that do not observe it (art. 1,000). The incident is also subject to the procedures for overruling a precedent and modulating the effects of that decision, reported above.
The Bill leaves unchanged, in essence, the procedure for the judgment of repetitive special and extraordinary appeals, applicable whenever “there is a multiplicity of appeals based on an identical issue of law” (art. 1,049-1,053), reported in the previous item.
Closing this brief summary, the new Code considers as “judgment of repetitive cases” both the decision rendered in an incident of resolution of repetitive cases, and also that arising from the judgment of repetitive special and extraordinary appeals, which may involve an issue of material or procedural law (art. 522) and authorize non-observance of the chronological order of judgment foreseen, also a groundbreaking feature, in its art. 12, 2nd paragraph.
The paramount aim of the Bill, on this point, lays in “avoiding the inconvenience of conflicting decisions”, leading to “huge procedural economy, as dozens, hundreds and even thousands of like cases may be resolved practically at one fell swoop.”25
In spite of the applause from wide sectors of doctrine and the institutional support of the higher courts for the trend of strengthening precedents from case law, which was accepted by the bill for the new Code of Civil Procedure, this guidance has not been devoid of criticisms.
In this regard, it has already been pointed out that the strengthening of precedents in Brazil arose as a pragmatic response to the numerical crisis of the Judiciary Branch, attacked for its effects, not for its actual causes (the Judiciary’s lack of funds, human resources and financial autonomy, inefficient management of resources, little respect for decisions at first instance, exaggerated formalism of some procedural rules, inoperative nature of regulatory agencies with effective powers to inspect and punish, inefficient regulation of collective cases; the explosion of litigation following the 1988 Constitution, undue use of the Judiciary Branch as an instrument of moratorium of the public debt, among others).26
For this reason, the critics ponder, attacking only the causes of the crisis will produce transitory and partial results, which will lead, in a short time, to a new numerical crisis of cases before the Brazilian Judiciary Branch, possibly compromising the quality of court decisions.
Moreover, it has already been noted that all the benefits pursued by the proposal to strengthen precedents from case law – predictability, isonomy, procedural economic and discouragement of vexatious litigation, will only become reality if the formation and application of precedents is done properly.
This premise, though, is not always observed in the Brazilian courts. It is sought to strengthen precedents in Brazil in just a few years. Its justification lays not in a gradual evolution of the legal system, as occurred in Common Law, but in an urgent solution for the numerical crisis of cases.
The risks involved are obvious: without proper techniques of operating with precedents, there is the risk not only of their being formed unsuitably (without a proper deepening of debate and consideration of all the pertinent arguments), but also of their being applied automatically to cases that are not sufficiently similar.
Thus it is that, in an educational effort to transmit to the professionals of the law the proper techniques of operating with precedents in a country without this tradition, the latest versions of the bill for a new Code of Civil Procedure have incorporated provisions that detail their practical use.
Prospective Overruling in Brazilian Law
Another recent influence of common law (in particular of the United States procedural system) on Brazilian procedural law comes to light in the so-called Prospective Effects or Modulation of Effects over Time of decisions that revoke precedents.
If, on the one hand, the stability and predictability of court decisions in interpretation of the law are important for a democratic decision, as they allow the citizen to know and be able to trust in his own rights27 set out in the legislative texts, on the other, it is important and vital for the system to modify its precedents when faced with a change to the social or legislative scene.
The inspiration for seeking a procedural instrument to modulate the effects of a court decision, with a view to balancing legal security with the need to change legal understanding, lays in the Prospective Overruling of U.S. law.
Doctrine developed in the United States defines overruling as the change of a precedent by means of an express decision that it must no longer be the applicable law (or Controlling Law). This change has retrospective effects, limited only to a Statute of Limitations, a settlement between the parties (Accord and Satisfaction) or, obviously, through the occurrence of res judicata).28 In this way, overruling a precedent ends up affecting others cases being judged.
Prospective overruling or Sunbursting,29 in its turn, is a technique of judgment that has been much used in U.S. common law, principally as from the second half of the twentieth century, by virtue of the pressure of social needs to change the law, without putting at risk its stability, encapsulated in the rule of stare decisis.30
Prospective Overruling must be understood as the postponement of production of effects of a new legal rule. It is, in actual fact, an exceptional limitation of the retrospective effect of overruling.
In Brazil, if we consider the increase in the importance of case law in recent decades as a Precedent to be followed by judges and by the courts, the Prospective Overruling of Common Law finds similarity with what has been adopted and understood as the application of prospective effects of court decisions or, as denominated by doctrine, the “modulation over time of the effects” of decisions.
Modulation of effects consists of a procedural technique of decision that authorizes the Court to limit, in time, the effects of its decisions based on the principle of legal security and the public interest of exceptional importance.31 Thus, a court decision whose effects, as a rule, would be ex tunc, has its limits in time modified, coming into effect at the time of publication of the decision (ex nunc) or at another subsequent moment (pro futuro).
The court that has most used modulation of the effects of its decisions in Brazil is the Federal Supreme Court (STF), not least due to its importance within the Brazilian Judiciary.
Historically, it falls to the STF to protect the Federal Constitution (art. 102, main section, of the 1988 Federal Constitution), and thus it is there that the control of constitutionality takes place, this both concentrated (under the historic inspiration of the lessons of Hans Kelsen and the structure of the Austrian Constitutional Court – Verfassungsgerichtshof, where the constitutionality of a law is analyzed in abstracto, by means of an objective process) and also diffused (under the clear inspiration, during the genesis of the Brazilian republican system, of the U.S. Supreme Court, where the quaestio juris as to the constitutionality of a given legal rule reaches the Supreme Court, in the final instance of appeals, by means of an extraordinary appeal lodged by one of the parties in litigation).
While performing the concentrated control of constitutionality of the laws, a situation in which the judgments of the STF enjoy efficacy erga omnes, and binding on all the other federal and state courts, the STF has modulated the effects of its decisions on the basis of the rule laid down in art. 27 of Federal Law No. 9.868/1999.32
According to this rule,33 in situations in which confirmation of the constitutionality or unconstitutionality of the legal rule may cause a serious shock to legal security or the national interest, the STF, by a majority of two-thirds of its Judges, may “restrict the effects of that declaration or decide that it will only come into effect upon becoming rem judicatum or at some other moment to be set.”
Please note that, unlike some countries, such as Austria, where the application of a law can only be done “for a period no greater than eighteen months”,34 the Brazilian rule does not set a maximum period, allowing the Court discretion to, reasonably, weigh up what the maximum period for application of a law would be, setting the moment pro futuro in which its effectiveness would be contained by the grounds of the decision that revokes the prior precedent.
There have been various cases in which the STF made use of this procedural technique of judgment. For example, in Declaratory Action of Constitutionality (ADC) No. 29, judged by the Plenary Session on February 16 2012, the STF judged the constitutionality of a law (Complementary Law No. 135/2010) which raised new hypotheses of ineligibility for Brazilian Electoral Law, seeking to preserve the so-called “party loyalty” of the candidate to his/her party. The hypotheses of ineligibility instituted were judged constitutional, but for a reason of legal security, the STF modulated pro futuro the effects of its decision to suit it to the constitutional rule, making such hypotheses inapplicable to previous elections, including the national elections held in 2010, and also to the political mandates still in progress.
Another example was judgment of Direct Action of Unconstitutionality (ADI) No. 4,029, judged on March 08 2012. This action questioned the constitutionality of Federal Law No. 11,515/07, the outcome of conversion into law of a Provisional Measure of the President of the Republic, which created the Chico Mendes Institute for Conservation of Biodiversity, with powers similar to a regulatory agency for the environment.
In judging this action, the STF ruled that there had in fact been a formal unconstitutionality in the law, as there was a failure to respect the constitutional limits for issuing provisional measures by the President of the Republic, who may only do so in cases of urgency and great importance, however, the STF could not overlook reality: it was a law that set up an autarky for the protection of the environment (a fundamental right also stated in the Constitution) which had since 2007 been operative, with several administrative and normative acts already practiced.
In this case the court adopted modulation of effects in the modality denominated, in Common Law, “pure prospectivity”, and thus “the effects of the decision were postponed, pursuant to art. 27 of Law [No.] 9,868/99, to preserve the validity and efficacy of all Provisional Measures converted into a Law to date, and also those at present in progress in the Legislature”.
We note, thus, that in Brazil the technique of modulation over time of legal effects is used, in the majority, in cases of mere interpretation of rules as to their constitutionality or not, either material or formal, as we see in the system of concentrated control of constitutionality of the laws entrusted to the STF.
The following words from the vote of Justice AYRES BRITO, in Conflict of Competency (CC) No. 7,204-1 (judged on June 29 2005) make it clear that the STF may make use of the modulation over time of effects, also, when it is merely interpreting the constitutional text, without amending it, so as to avoid surprises for those under its jurisdiction, verbatim: “The Federal Supreme Court, supreme watchdog of the Republican Constitution, can and must, for the sake of legal security, attribute prospective effectiveness to its decisions, with the precise delimitation of changes in case law that occur without a formal change to the text of the Constitution.”
As a matter of fact, we note quite clearly that in Brazil the technique of the prospective effects of court decisions was created, precisely, from the theory of the nullity of unconstitutional acts.