Electronic Judicial Proceedings and Transparency of the Courts
by Daniel Willian GRANADO, Ph.D. and Master of Law and Professor
of Civil Law at Faculdades Metropolitanas
Unidas – FMU,
Brazil.
The objective
of this brief study is to examine the electronic judicial proceeding and its
implementation in Brazilian civil law, as a means to ensure more transparent
dispensation of justice for legal practitioners and claimants alike.
To be sure,
the judicial process has undergone a number of changes over time, all
associated with the latest technological innovations applied, above all in the
field of information technology. In this light, electronic judicial proceedings
represent one of the many avenues for realizing and implementing transparency
in the Justice System, insofar as it permits not only the parties to a suit,
but anyone, to access ongoing proceedings before the Courts, provided, of
course, the matter is not under seal. Therefore, the
broad access offered by the electronic procedure system is, without question,
one of the single most important innovations in the quest to secure the
transparency of the Justice System worldwide.
An initial
consideration when examining civil procedure is that the underlying principles
of civil procedure are enshrined in the Brazilian Federal Constitution,
principally following the advent of the 1988 Federal Constitution, which
expounds on the subject in great detail.
In this light,
the core aspects of civil procedure are today extensively regulated by the 1988
Federal Constitution. Thus, the importance of examining the principles of
proceedings based on the Constitution, to the extent, as argued by Geraldo Ataliba, those principles are “at once rules and guidelines
of the system which intrinsically inform the system”[1].
Or, as Celso Antônio Bandeira de Mello, teaches, the principles “are the express
or implicit disposition, categorically laid out in a given system, by which the
rules implemented in a positive legal order is shaped”[2].
In this light,
outlining the study of these principles based on the Constitution would, from a
methodological standpoint, seem to be the most appropriate approach to
ascertain how and why the various provisions prescribed in the
infra-constitutional laws effectuate specific Constitutional principles, while
conflicting with the scope and breadth of others.
It is to be
expected that this would occur within a democratic State under the rule of law,
like the one governed by the current constitutional system. In this light, an
effort will be made to focus on principles, in particular the principle of
publicity, in procedural acts, taking into account that these leaves a profound
and indelible mark on the system, such as is the case, for example, with the
core principle of due process, as evidenced by the extensive literature on the
subject, a matter considered further in the pages below.
This study
also reveals the profound symbiosis between civil law and constitutional law.
Indeed, we have already noted that a core principle of the process was
enshrined, particularly as of the promulgation of the 1988 Constitution, in the
constitution text itself.
By way of
example, the principle of equality, a general constitutional principle with a
particularly important impact in the field of civil procedure, is expressly
prescribed in article 139, I, of the Brazilian Code of Civil Procedure,
which mandates equal treatment of the parties to a proceeding.
Let us first
look at the principle of all principles: due process.
Due process
can be considered, to an extent, a vague concept. That is, in specific respect
of the notion of what due process means, some aspects are absolutely
indisputable, while others are highly elastic and the subject of ongoing
discussion – and, as such, historically have not been assigned specific
definitions capable of delimiting their meaning.
That said,
there is a central core that informs the principle, which cannot be violated,
as it is a product of history and reiteration by various peoples, subject to a
robust a body of decisions and conceptual frameworks that have generated what
could be called the conceptual core of the principle. This principle has been
most extensively studied and, more than this, “exercised” in the jurisdiction
of the United States of America.
It is worth
noting that the principle is expressly provided in the Federal Constitution,
article 5, LIV, and enshrined as an individual right and guarantee,
constituting, therefore an entrenchment clause, in accordance with article 60,
§ 4, IV, of the Brazilian Federal Constitution, meaning it is not subject
to any constitutional amendment designed or with potential to suppress such
right.
There are, as
such, criteria in place to assess whether in a given case the principle has
been fulfilled or not.
It is for this
reason that the principle was defined as a core
concept from its very origin, by virtue of which there is substantial
certainty as to its constituent elements. However, in regard to other less
evident, aspects, the legal scholarship and case law (including the American
courts) have never settled on any firm definitions.
In reality,
there are norms that simply fulfill their ends, containing, at their core,
ambiguous concepts, as a definitive definition of the principle would almost
certainly result in excluding cases subject to consideration based on such
principle and the corresponding ambiguous conceptual framework, but which such
definition would have the effect of discarding altogether or, worse, cause to
be disregarded in the applicable infra-constitutional legislation. This would
clearly lead to the risk of infra-constitutional determinations in violation of
the norm’s constitutional scope.
The principle
of due process is, therefore, a fundamental principle. All remaining procedural
principles enshrined in the constitutional text, including the prohibition on
unreasonable search and seizure, the right of a full defense, in the strict
sense, publicity for procedural
acts, etc., emanate from this basic right. As Nelson Nery
Jr. argues, “It is the fundamental principle of civil procedure which we view
as the basis on which all others are founded”[3].
For Humberto Theodoro Jr.,
due process can be understood as a “super-principle”, to the extent it serves
as inspiration for all other principles under the Law[4].
Paradoxically,
as Nelson Nery Jr. notes, the Magna Carta was a reactionary instrument, which established the
relationship between the King and the Nobles (as a guarantee thereto)[5].
Despite this, however, the fact is that the document was,
“the first formal document in history to
establish the primacy of the law over the royal prerogative, in addition to
serving as the basis for the British parliamentary system and setting forth a
series of rights in relation to specific groups (especially barons) vis-à-vis
the government”[6].
It is
precisely this idea on which the historical import of the Magna Carta rests and which informs our decision to begin the
study in these pages with an examination of this formative document.
The term due process of law first appeared in
English law in 1354 during the reign of Edward III, specifically in the Statute
of Westminster of the Liberties of London (a term coined by “some unknown draftsman”).
As Egon Bockman Moreira notes, “The
expression by the law of the land
points to a range of far weaker meanings than that encompassed in its successor
due process of law”[7].
Over time, due process became a condition
for validating other substantive rights.
As we have
seen, the principle derived originally from England. But in the 17th
century it began to assume importance in America.
The 5th
amendment states, “No person shall [...]
be deprived of life, liberty or property, without due process of law,”
while through the 14th amendment of 1868, the principle was adopted
as a limit not only on the central government, but on state governments as
well.
Prior to the
American Federal Constitution, the constitutions of Maryland, Pennsylvania, and
Massachusetts had already enshrined the principle, reiterating the rule set
forth in the Magna Carta and the Law during the reign
of Eduardo III, as Nelson Nery Jr. notes[8].
The root of
the principle is eminently procedural. It could be argued that the underlying
seed of the principle is directly connected to the notion of orderly
proceedings.
The concept
evolved and eventually was interpreted to mean that due process did not only
involve the basic guarantee of an orderly proceeding, but as the right to prior
notice of a proceeding and a full defense. The interpretation was also extended
to encompass the semantic principle that no one could be detained or imprisoned
without cause.
The principle
as initially adopted in the United States was similar to the original, and was
introduced, as mentioned above, in the American Constitution through the 5th
Amendment, followed by the 14th amendment, which was enacted in the
19th century with a view to extending the obligation to uphold due
process to the individual states.
To be sure, as
Sampaio Dória argues, “The
concept of limited political power in Western political thought derives
undeniably from the Magna Carta,” it is equally true, as stated by the
author, that the advent of the American nation brought with it the first in
which
“a basic law limited the power of all the
branches government – legislative, executive, and judicial – and on which
sovereignty of the nation rested through. The 1787 US Constitution is the synthesis of
those limits with respective to the political structure of the regime (federal
and republican), the separation of power into three branches, and the
guarantees of individual rights (the Bill of Rights attached to the
Constitution in the form of the first ten amendments)”[9].
However, after
enshrining the primacy of the Constitution in relation to ordinary lase
(article VI, section 2), the problem of how to control legislative
acts emerged, a responsibility the Constitution assigns in no uncertain terms
to the judicial branch (article III, section 2, § 1). The
predominance of the judicial branch over the other branches of government was
consolidated in the landmark Marbury v. Madison decision, in which
Justice Marshall[10]
affirmed the critical attribution of the Judiciary as a pillar of American
constitutional law. On this point, Egon Bockman Moreira notes, citing Carlos Roberto de Castro Siqueira, that “both in the colonial period and following
Independence there was a clear bias in favor of the legislative branch, as
reflected in the repressive metropolitan legislation emanated from the House of
Westminster in London”[11].
It is in this
historical context that the importance of the principle of due process stands
out, for as asserted by Sampaio Dória,
“The search
for an explicit constitutional principle to serve as a guide within an
undefined and indefinable body of ‘natural laws’ led in short order to a
single, unitary Constitutional provision that was perfectly suited to this end,
the due process of law clause”[12].
In other
words, the due process of law clause constitutes the principal mechanism by
which the Courts can control the acts of the Legislature, constituting, in this
way, the most important component of the American constitution system.
Notwithstanding
the importance of the principle within the American Supreme Court, to the
extent, in fact, as argued with reason by Nelson Nery
Jr., that “the prestige of American constitutional law is primarily due to the
interpretation of the due process clause given by the Supreme Court,”[13]
it is equally relevant to record the observation of Sampaio
Dória that
“in fact, it would be
useless to survey the essence of the Supreme Court’s decisions, in search of an
unformulated principle. Unformulated because, given the assumptions of the
theory of the flexible interpretation of the Constitution, ‘the stratification
of due process within a fixed stage of historical or intellectual evolution’
would mean acknowledging that ‘the most important aspect of the constitutional
provision is the function of inert machines, instead of judges”[14].
Indeed, we can
without any reservation, affirm that it was precisely this flexible character
that has enabled the principle to survive the test of time as a core guideline
of the American constitutional system.
Egon Bockman
Moreira provides a vivid and enormously important historical example of the
different characteristics the principle of due process assumed over time – in
particular respect of its substantive meaning – when describing the new
position adopted by the Supreme Court through Justice H. L. Black, who joined
the High Court in 1937, at a time when the United States had just begun digging
out of the deep depression sparked by the 1929 Crash. Through Justice Black,
the clause ceased to be an obstacle to social legislation, to limits on
taxation; in a sense, it could be said that the clause was no longer used to
oppose regulatory action by the government[15].
The
fundamental feature of due process as not only a procedural principle, but as
substantive due process, was affirmed
in 1798 in Calder v. Bull, which ruled that all normative acts,
whether legislative or administrative, that violated fundamental rights
contravened, ipso facto,
due process. The case was illustrative of the fact that the principle of due
process was also applicable beyond the scope of legal proceedings. Nelson Nery Jr. States, for example, that the principle of
legality within administrative law is nothing more than a projection of the
principle of due process within this specific sphere[16].
American case
law, reflected, as well, in Brazil, has found that jurisdictional oversight of
government acts is an unequivocal expression of the principle of due process.
It is also reflected in private law, as, for example, fulfillment of the
perfect legal act is guaranteed, in respect of which there is a separate and
express provision, namely article 5, XXXVI, of the Federal Constitution (vested rights doctrine), which
prohibits racial discrimination, etc.
In sum, as
noted, the principle of the due process of law was eminently procedural in
nature at the outset. Indeed, the its initial feature as conferred by the Magna
Carta was as a protective measure centered primarily
on criminal proceedings[17].
However, as
seen above, the interpretation given currently is far broader. It does not only
extend to the respective effects arising from proceedings, but to material law
as a whole. With transferral to the United States,
the substantive aspects of the due process clause took on greater importance,
precisely due to the need, as described above, for a constitutional principle
capable of ensuring constitutional limits on legislative acts[18].
Indeed, a passage from a 1992 Supreme Court highlights the essence of due
process, which suggests that the respective constitutional pledge involves “a
realm of personal liberty which the government may not enter”[19].
Egon Bockman
Moreira reports that the features which characterize the principle of due
process as currently defined in the United States involve “a fair and equitable
legal relationship conducted with precision to ensure the citizen certainty,
while respecting the citizen’s moral dimension”[20].
The principle
also supports the life-liberty-property triad. In this light, everything
connected to the triad is covered by the due process of law principle.
Within the
infra-constitutional sphere, article 11 of the Brazilian Code Civil
Procedure provides that “all judgments from bodies of the judicial branch will
be public and based on all decisions rendered, subject to a nullity.” Article 189
of the Brazilian Code of Civil Procedure enshrines the requirement to publish
all procedural acts at the infra-constitutional level, mandating that such acts
are public. Further, article 189, sub-sections I - IV, sets out specific cases
of proceedings which must be conducted under court seal, specifically (I) cases
of public or social interest; (II) proceedings regarding marriage, separation,
provisional separation, divorce, separation, common-law marriage, kinship,
alimony and support, and custody of children and adolescents; (III) proceedings
involving data protected under the constitution in connection with privacy; and
(IV) proceedings regarding arbitration, including performance of arbitral
letters, provided the confidentiality stipulated in the arbitration is
demonstrated before the Court. In these exceptional situations, the right to
review records and request certificates is restricted to parties and their
attorneys-in-fact, with third parties entitled to request a certificate of the
respective binding judgments, in addition to the inventory and distribution of
judicial separation or divorce proceedings, from the Court, demonstrating, to
this end, the pertinent legal interest.
The exception in
article 189 of the Brazilian Code of Civil Procedure is supported by
article 5, LX, of the 1988 Federal Constitution and in the last part of
article 93, sub-section IX, of the 1988 Federal Constitution. In
these cases, the right of privacy of the parties and public interest justifies
secret proceedings and prevail over the principle of the publicity of
procedural acts, preventing, in this way, the respective proceedings from
becoming fodder for malicious or sensational speculation, which often
compromise conduct of such proceedings.
The principle of
publicity underlies the provision in article 368 of the Brazilian Code of
Civil Procedure requiring that hearings must be public, except in the pertinent
legal exceptions.
Arruda Alvim
argues, in regard to the principle:
“Publicity is ensured as a guarantee to the
citizenry of a ‘fair’ Justice System that has nothing to hide; while, at the
same time, serving as a guarantee for the Courts themselves before the
citizenry, as public action permits verification of the respective acts”[21].
As seen above,
procedural acts are public, except as otherwise expressly prescribed by Law.
The publicity
of procedural acts is aimed, among other ends, at supporting the implementation
of a more transparent justice system, by granting all interested parties access
to case records in judicial proceedings.
To facilitate
more access and incentivize the transparency of the justice system, Brazilian
judicial proceeding have undergone significant technological changes, above all
through the implementation of electronic proceedings in all courts and at all
jurisdictional levels.
In this
context, Law No. 11,419 of 2006 served as an important parameter to
transform the computerization of electronic proceedings in Brazil into a
reality.
According
to article 1 of the Law,
“The use of electronic platforms in judicial
proceedings, notices, and transmission of procedural records will be permitted
pursuant to Law,” by which § 1 of the Law provides that “the provision of
this Law apply indistinctly to civil, criminal, and labor proceedings, as well
as special courts at any jurisdictional level.”
To enter petitions electronically, claimants need only register with the
Court and obtain a digital certificate.
Computerization of judicial proceedings enable
submission of preliminary and intermediate statements of claim on the Internet
the desired Court, saving citizens the time of having to travel to Court
proceedings, while facilitating access by the parties and their legal
representatives to information in connection with the pertinent proceedings and
jurisdictional exercise by the State, in addition to eliminating paper as of
the filing stage and contributing, in this way, to a healthier and more
sustainable environment.
Note, therefore, that the instrument not only
contributes to foster access to case records, albeit safeguarding, to be sure,
cases under court seal, but also serves to help preserve the environment and
reduce costs to the parties and their representatives.
The electronic judicial proceeding is a reality
in almost all Brazilian Courts, in respect of which Resolution 185 of 2013
of the National Justice Council- CNJ is of particular note.
Through the Resolution, the Council sought to
standardize the modalities of electronic proceedings throughout Brazil.
Also of note is the New Brazilian Code of Civil
Procedure – Law No. 13,105/2015 – drafted and conceived with electronic
judicial proceedings in mind, by treating physical proceedings as the
exception.
Currently, in day-to-day discovery attorneys are
allowed to enter motions electronically and access, through the appropriate
electronic certificate, case records. It is interesting to note, in addition,
that some Brazilian Courts, such as those of the São Paulo State Court of
Justice, do not even require the certification to access and review case
records.
There is a precedent for incentivizing the use of
electronic means to foster acts of procedural communication.
To be sure, not only may legally summons and
notifications be issued by the legal representatives of parties, but these may
be published in the Electronic Judicial Register (Diário
de Justiça Eletrônico) as
well.
In respect of this point, consider the following
decision rendered by the Superior Court of Justice: “criminal procdure. Regulatory appeal in
interlocutory appeal. Electronic publication. Article 4 and § 2
of law No. 11,419/2006. Authorized and official mechanism for publishing
judicial acts by the courts. Absence of materiality. I
- Article 4 of Law No. 11,419/2006 provides that publication by
electronic means constitutes an authorized and official mechanism for
publishing judicial and administrative acts of the Courts. In addition, § 2
of the Law above states, “Electronic publication pursuant to this article
substitutes any and other means of official publications for all legal
purposes, with the exception of those case, as provided for by Law, that
require in-person notification or registration.”(Precedent) II – Therefore, as
neither of the exception above applies to the summons in the case record,
publication of the decision under challenge in the Electronic Judicial Register
is absolutely lawful. III – The absence of the essential and mandatory material
evidence required to review the appeal (in this case a copy of the certificate
of the publication of the judgment issued in respect of the motion to clarify
in the request for reconsideration) renders the petition without merit
(Precedent).‘‘Regulatory appeal denied”[22].Similarly,
with respect to the importance of the electronic judicial proceeding, consider
the following decision of the Superior Court of Justice:
“CIVIL PROCEDURE. MOTION TO CLARIFY
IN INTERLOCUTORY APPEAL. TIMELINESS OF SPECIAL APPEAL. DEMONSTRATION THROUGH
DOCUMENT DRAWN FROM THE INTERNET. MERIT. ELECTRONIC PROCESS. LAW
No. 10,259/2001.
1. The Internet is an efficient
platform for ensuring the timeliness of appeals.
2. “Use of the INTERNET to
disseminate Court decision or publicize the status of proceedings, thereby
enabling not only that claimant’s attorneys, but all interested parties, have
access to the STJ’s rulings for purposes of filing the pertinent appeals, is no
longer contingent on awaiting publication in the Judicial Register, a tool
which is a far slower method for disseminating information than electronic
platforms. [...] Current processes for publicizing judicial decisions are no
longer compatible with the case law, which, consequently, must be updated.”
3. As such, “Judicial decisions,
whether individual or collective, may, following official disclosure by any
means, be subject to appeals, irrespective of publication in the Judicial
Register.” (Regulatory Appeal – AgRg in Interlocutory
Appeal – EREsp 492461/MG, Rapporteur of Judgment
Minister Eliana Calmon,
Special Court, decision of 11/17/2004, Judicial Register – DJ of 10/23/2006, p. 235)
4. The electronic process instituted
by Law No. 10,259, dated July 12, 2001, renders the issue
incontrovertible.
5. Motion to clarify heard for purposes of granting the
interlocutory appeal to order referral of the special appeal to the higher
court”[23].
Along the same line:
“CIVIL PROCEDURE. MOTION TO CLARIFY
IN INTERLOCUTORY APPEAL. TIMELINESS OF SPECIAL APPEAL, DEMNSTRATION THROUGH
DOCUMENT DRAW FROM THE INTERNET. MERIT. ELECTRONIC PROCESS. LAW
No. 10,259/2001.
1. The Internet is an efficient
platform for ensuring the timeliness of appeals.
2. “Use of the INTERNET to
disseminate Court decision or publicize the status of proceedings, thereby
enabling not only that claimant attorneys, but all interested parties, have
access to the STJ’s rulings for purposes of filing the pertinent appeals, is no
longer contingent on awaiting publication in the Judicial Register, a tool
which is far slower in disseminating information than electronic platforms.
[...]Current processes for publicizing judicial decisions are no longer
compatible with the case law, which, consequently, must be updated”.
3. As such, “Judicial decisions,
whether individual or collective, may, following official disclosure by any
means, be subject to appeals, irrespective of publication in the Judicial
Register.” (Regulatory Appeal – AgRg in Interlocutory
Appeal – EREsp 492461/MG, Rapporteur of Judgment
Minister Eliana Calmon,
Special Court, decision of 11/17/2004, Judicial Register – DJ of 10/23/2006, p. 235)
4. The electronic process instituted
by Law No. 10,259, dated July 12, 2001, renders the issue
incontrovertible.
5. Motion to clarify heard for purposes of granting the
interlocutory appeal to order referral of the special appeal to the higher
court.”[24]
To repeat, all of these features, without
question, contribute to ensuring attorneys and anyone else have full access to
case records, except, evidently, in the legally prescribed exceptions.
The preceding pages provided a summary of how the
electronic judicial proceeding can contribute to the quest for more transparent
administration of justice in Brazil.
[1] A. A. Gordillo, Introducción al derecho administrativo, vol.
1, p. 176, apud Geraldo Ataliba, República e Constituição, p. 6.
[2] C. A. Bandeira de Mello, Criação de secretarias municipais, in Revista
de Direito Público, n.º15,
p. 284-285.
[3] N. Nery Jr, Princípios do processo civil
na Constituição Federal, 8.ª ed. São Paulo: RT, 2008, p. 60.
[4] H. Theodoro Jr, Curso de direito
processual civil, vol. 1, item 22, p. 29.
[5] N. Nery Jr, Princípios do processo civilna Constituição, p. 61-62.
[6]
E. B. Moreira,
Processo administrativo – Princípios constitucionais e a Lei 9.784/99,
São Paulo: Malheiros, p. 161.
[7] Ibid, p. 162.
[8] N. Nery Jr, Princípios do processo civil
na Constituição Federal, p. 62.
[9] A. R. Sampaio Dória, Direito constitucional tributário, Rio de
Janeiro: Forense, , pp. 23-25.
[10] V, a propósito, A. R. Sampaio Dória, Direito
constitucional tributário. Rio de Janeiro: Forense, p. 25.
[11] E. B. Moreira, Processo administrativo,cit, pp. 166-167.
[12] A. R. Sampaio Dória, Direito constitucional tributário.cit, p. 30.
[13] N. Nery Jr, Princípios do processo civilna
Constituição, p. 64.
[14] A. R. Sampaio Dória, Direito constitucional tributário.cit, p. 33.
[15] E. B. Moreira, Processo administrativo.cit, p. 172.
[16] N. Nery Jr, Princípios do processo civilna
Constituição, cit, p. 66.
[17] On this point, Egon
Bockman Moreira points out that this is perfectly
understandable due to the importance case law assumes as a source of
fundamental rights in common law countries, such that the “legal concept of
‘right’ in England derives, historically, from the idea of process” (Administrative
process... cit, p. 157).
[18] On the substantive
character of due process of law, see Ada Pellegrini Grinover, A garantia
constitucional do direito de ação e sua relevância no processo civil, p.
35.
[19] E. B. Moreira, Processo
administrativo.cit., p. 166.
[20] Ibid, p. 177.
[21] A. Alvim, Manual de direito processual civil, item 52, p.
183.
[22] Superior Court of Justice – STJ,
Regulatory Appeal – AgRg in
Appeal Ag 1140539/CE, Rapporteur Minister Felix
Fischer, Quinta Turma, decision of 10/13/2009,
Electronic Judicial Register – DJe of 11/03/2009.
[23] Motion to Clarify – EDcl
in the Motions to Clarify – EDcl in Regulatory Appeal
– AgRg, Appeal – Ag 856.148/MG, Rapporteur Minister FRANCISCO FALCÃO, Judgment Rapporteur
Minister LUIZ FUX, FIRST PANEL, decision
of 12/04/2007, Electronic Judicial Register – DJe 10/22/2008.
[24] Superior Court of Justice – STJ, Motion to Clarify – EDcl
in the Motions to Clarify – EDcl in Regulatory Appeal
– AgRg, Appeal – Ag 856.148/MG, Rapporteur Minister
FRANCISCO FALCÃO, Judgment Rapporteur Minister LUIZ
FUX, FIRST PANEL, decision of 12/04/2007, Electronic Judicial Register –
DJe 10/22/2008.