Author: João Marcos de Carvalho Pedra

The Federal Constitution promulgated in 1988 marked a moment of profound transformation in Brazilian Procedural Law. Known as the "Citizen Constitution," it brought a series of innovations to the legal system. It expanded and consolidated fundamental rights and guarantees, redefining the role of the process in the realization of justice and the defense of constitutional guarantees.

It is no coincidence that Article 1 of the 2015 Code of Civil Procedure prescribes: “Civil procedure shall be ordered, disciplined and interpreted in accordance with the values ​​and fundamental norms established by the Federal Constitution. Thus, the provisions of this Code must be observed.”

There has also been the constitutionalization of numerous principles of Civil Procedural Law, known as constitutional principles of procedure. This is evident from reading Article 5, which contains constitutional provisions regarding procedural law, the nature of which is that of an entrenched clause.

Among them are: the right to a fair hearing and full defense; the guarantee of due process of law, as a prerogative for the legality of restricting freedoms, rights, and property; the provision for constitutional actions of various kinds; and the regulation of constitutional procedural law as a normative instrument.

As a result, Procedural Law has incorporated new principles and adapted to the demands of a Democratic State governed by the Rule of Law, guided by effective access to Justice and the protection of individual liberties.

Procedural Guarantees as an Unamendable Constitutional Clause 

The 1988 Constitution strengthened procedural guarantees, especially those related to due process of law, the right to a full defense, the inalienability of judicial review, and the right to a fair hearing, enshrined in Article 5, items XXXV, LIV, and LV. 

These rights were guaranteed to all citizens, extending to both judicial and administrative proceedings. This established that any act involving the restriction of rights must respect due process, ensuring that the individual has the opportunity to defend themselves and present evidence.

Access to Justice and Democratization of the Judiciary

These principles aim to ensure that all citizens have access to the most appropriate judicial protection for the resolution of their conflicts. This promotes the democratization of the judiciary and combats social, economic, and bureaucratic barriers that prevented full access to the justice system.

To give effect to this right, several procedural reforms have been implemented, such as the creation of Special Courts. These courts provide a more agile and informal way to resolve less complex and lower-value claims. 

This new structure also encouraged the adoption of conciliation and mediation mechanisms, facilitating access to justice and promoting a culture of peaceful conflict resolution.

Therefore, there is a significant impact on Civil and Criminal Procedural Law, in order to reinforce the commitment to impartial and balanced justice. 

Impact on Civil and Criminal Procedural Law

In criminal proceedings, for example, the Constitution established the presumption of innocence as a fundamental rule, determining that no one will be considered guilty until a final and unappealable conviction is reached. Thus, this presumption aims to protect the accused against potential abuses by the State and reinforces the protective nature of criminal proceedings.

Furthermore, the 1988 Constitution incorporated the protection of transindividual interests into the body of fundamental rights and guarantees, creating institutions of constitutional procedural law, such as, for example, the collective writ of mandamus (Article 5, item LXX), and elevating the public civil action to constitutional status, intended for the protection of transindividual interests (Article 129, item III). 

From this scenario, we see a new phase in the reform of civil procedure, now focused on the protection of collective interests.

Effectiveness and Procedural Speed

The reputation for the slowness of the Judiciary, however well-known, is disastrous and has become a subject of public debate, so that new tools can emerge to guarantee full access to justice.

The slow pace of legal proceedings remains one of the main problems in the Brazilian judicial system, which has encouraged the emergence of reforms focused on simplifying and streamlining the procedural system. 

Constitutional Amendment No. 45 of 2004, known as the Judicial Reform, is one of the milestones in this regard, as it brought significant changes to the procedural system. On that occasion, the principle of "reasonable duration of proceedings" was introduced into the constitutional text (Article 5, item LXXVIII). 

The amendment sought to address a major problem of a backlog of cases that had been stalled for a long time awaiting judgment, while also creating a new scenario for the Supreme Federal Court to act as a Court of Precedents. 

The slow pace of the judicial system, which demands that cases be judged within a reasonable timeframe, imposes on the judiciary the responsibility of improving its procedures to ensure faster and more effective decisions. This change has also motivated the development of technologies, such as electronic processes, which have significantly accelerated judicial proceedings and reduced bureaucracy.

The Role of the Supreme Federal Court and the Creation of Standardization Mechanisms

Furthermore, the 1988 Constitution itself reinforced the role of the Supreme Federal Court (STF) as guardian of the Constitution, assigning it the function of standardizing constitutional interpretation in the country. 

With the creation of mechanisms for binding precedents based on general repercussion, stemming from Constitutional Amendment No. 45, the aim was to guarantee greater legal certainty and jurisprudential stability, avoiding conflicting decisions and providing greater predictability of the outcome to be achieved by those subject to the law.

These mechanisms have had a direct impact on Procedural Law, by rationalizing the use of resources and reducing the number of repetitive lawsuits. The general repercussion mechanism has allowed the Supreme Federal Court (STF) to filter extraordinary appeals, judging only those cases that present issues of social, economic, political, or legal relevance.

At the same time, binding precedent obliges courts and administrative bodies to follow the understanding of the Supreme Federal Court (STF) on already settled issues, reducing litigation and promoting a more expeditious justice system.

These tools allowed the Supreme Court to become a Court of Precedents, moving away from the main characteristics of courts of appeal and cassation.

Inspired by the results obtained with Constitutional Amendment No. 45, the Superior Court of Justice also sought legislative approval to amend the 1988 Constitution, aiming to create a procedural tool equivalent to the general repercussion doctrine to be applied to special appeals contained within the constitutional text.

Strengthening Judicial Control and Collective Rights

Another essential aspect of the transformation of Procedural Law with the 1988 Constitution was the strengthening of judicial control over acts of public power and the creation of mechanisms for the defense of collective rights. 

As we can see from the constitutional text, issues such as health, education, the environment, public safety, and mobility, popularly known as social rights, have come under scrutiny, aiming to expand access to the basic conditions necessary to achieve what the Constitution calls the dignity of the human person.

The Constitution expanded the Judiciary's control over administrative acts, enabling greater oversight of state actions and protection of citizens' rights.

The collective writ of mandamus, the writ of injunction, the popular action, and the public civil action were consolidated by the new Constitution, enabling the defense of collective and diffuse rights. 

At the same time, the Public Prosecutor's Office, also strengthened by the 1988 Constitution, began to act as one of the agents defending collective and fundamental rights, expanding society's access to the Judiciary in matters of great social relevance.

Conclusion

The 1988 Federal Constitution profoundly transformed Brazilian Procedural Law by consolidating fundamental principles such as access to justice, due process, and the right to a full defense. These changes aimed to democratize the Judiciary, ensure the effective protection of rights, and promote a more expeditious and accessible justice system. 

The 1988 Constitution expanded procedural guarantees and brought a new perspective to the judicial process, focused on the effectiveness and social responsibility of the Judiciary.

Over the years, Procedural Law has adapted to constitutional principles through legislative and jurisprudential reforms. Thus, the 1988 Constitution established the foundations for a fairer, more democratic, and effective procedural system.

BIBLIOGRAPHIC REFERENCES

ASSIS, Guilherme Bacelar Patrício de. The decisional oscillation in the STF regarding the guarantee of the presumption of innocence: Between self-binding and the revocation of precedents. Available at: https://www12.senado.leg.br/ril/edicoes/55/217/ril_v55_n217_p135.

Lava Jato has about 100 convicts in the second instance. Estado de Minas , Belo Horizonte, October 16, 2019. Politics. Available at: https://www.em.com.br/app/noticia/politica/2019/10/16/interna_politica,1093419/lava-jato-tem-cerca-de-100-condenados-em-segunda-instancia.shtml.

LOPES JÚNIOR, Aury. Criminal Procedural Law. São Paulo: Saraiva Educação, 2018. 

MENDES, Gilmar and BRANCO, Paulo Gustavo Gonet. Constitutional Law Course. São Paulo: Saraiva, 2012.