The use of alternative means of controversies by the Public Authorities

  • Carolina Barros Pires - 10 May, 2017 - Articles

Access to justice is a fundamental right[1] enshrined in the Brazilian Federal Constitution. For this purpose, we have two instruments: the Law and the Judiciary Branch. The first operates as mechanism of social organization; the second represents the means by which the State manages the existing conflicts in the society.

Thus, backed by legal order, the Judiciary handles day after day with the existing conflicts between the community members and the state institutions to impose sanctions, repairs damages, reestablishes the order and ensures the stability of the social relationships.

However, the overload caused by conflicts volume remitted to judicial protection puts at risk the constitutional guarantee of the access of justice. According the report “Courts in Figures” [2], elaborated by the Nacional Council of Justice (CNJ), underwent by jurisdiction of the Brazilians Courts approximately 99, 7 millions of cases in 2014, that means almost 1 case for each 2 Brazilians, this statistic shocks when it’s confronted with the disputes numbers outstanding of judgment that exist in others  European Countries[3].

In a detailed review of such numbers, it’s possible realize that the Public Management is the biggest litigant, which is involved in 15% of the lawsuits.

The Statistic of the CNJ reflects the numerous decades which the entry justice was the main existing instrument  to conflict resolution, culminating in the cram of the Judiciary Branch, and, therefore, in slowness, sluggishness and inefficiency in the analysis of lawsuits. It was exactly this Judiciary overload that brought the need to creation new mechanisms capable of conducting social pacification without the use of the legal channels.

And it is this way should to be: the development of the Law directly connected with the human evolution and your composition in the society. Given this reality, the New Civil Process Code (NCPC) embraced in your legislative text the express provision of incentive to State for the adoption of amicable solution of conflicts[4] , as well as the stimulation of such solution by the judges, Public Defenders, members of the Prosecutor’s Office and lawyers, including during the lawsuit.

In accord, the Arbitration Law[5] also passed through relevant modification, to include express authorization for the Public Administration to the insertion of arbitration as an implement to settle disputes over ownership rights[6].

In the same way, the Law nº 13.140, published on June of 2015, provides the self – determination of conflicts in the sphere of Public Administration, aiming that the involved parts come to a settlement with reciprocal concessions. In addition, the legislative standard disposes about the creation of Judicial Chambers to consensual resolution of disputes.

In front of numerous legislator inclinations for the Public Administration enjoys the benefits of the “out-of court procedures”, there is no reason to shyness of the parts and public administrators in the utilization of such instruments. It’s necessary the live engagement of the parts for the creation of solutions that indeed insure the subjective right satisfaction, which is often lost after years of waiting for a legal decision.

It is important to note that the evolution of the case law, doctrine and of the legal order ensure credibility of the alternative resolution of conflicts, as long as one of the parts is the Public Authorities.

Certainly, any transaction involving the Public Administration and, as a result, has as object public goods, it is necessary caution and must to respect the limits, being indispensable that any negotiate involving the patrimonial availability of public treasury attend the public interest.

Thus, it is possible to complete that for all these legal innovations will result in the future a considerable reduction of the expended value in stocks that overload the Judiciary Branch and don’t represent any economic advantage to the Public Authorities, just as well demand greater speed in the resolution in disputes that have the Public Administration as litigant part.

[1] BRAZIL. Brazilian Federal Constituition of 1988, incise XXXV of article 5.º

[2] CNJ. Justiça em Número (Courts in Figures). 2015.Avaliable in: Acess in 12/05/2016.

[3] Revista Democracia Digital e Governo Eletrônico (ISSN 2175-9391), n° 8, p. 73-92, 2013.

[4] BRAZIL. NCPC de 2015, art. 3º, § 2º

[5], The Law 13.129 alterou a Lei Federal 9.307 de 1996.Acess in May of 2015.

[6] BRAZIL. Law 9.307de 1996, art. 1º, § 1

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