A survey carried out by the Brazilian Center for Judicial Studies and Surveys (Cebepej), with the participation of students and professors from the Law School of the University of São Paulo (USP), sets out to throw some light on the question of the democratization of Justice, an important item for those who are to be charged with the Reform of the Judiciary.
Now in the hands of some key persons for this reform in Brasilia, the survey, named Special Courts and access to Justice, was concluded in July 2003 and constitutes exhaustive fieldwork for verifying the effectiveness of the Special Courts of the State of São Paul , a region that concentrates 50% of the country’s judiciary service, taking into consideration not only the Special Courts, but also the Common Courts.
In the course of a year and a half, 15 researchers went out into the field to assess material and functional aspects of the Special Courts, Informal Conciliation Courts, and Itinerant Courts, located in the capital and in the interior of São Paulo. By means of questionnaires, qualitative observations and later statistical analyses, an assessment was made of such items as: the profile of the claimant; the nature of the lawsuit; the percentage of agreements; the main difficulties of access to the courts; the level of satisfaction and dissatisfaction of the users; the percentage of appeals; the quality of the work of the agents of the law (magistrates, public attorneys, reconcilers, lawyers, and officials) and the material conditions of the courts.
Regarded as the first major venture in favor of easy access to Justice on the part of the less privileged layers of the population, the Special Courts, formerly called Small Claims Courts, were a cause for various controversies ever since their origin.The Small Claims Courts were created in 1984, by Law No. 7244/84, and they should have their work based on orality, simplicity, informality, celerity, and a persistent quest for an amicable solution of the cases. The competence of these courts used to be limited to cases of up to 20 minimum salaries, and did not cover the enforcement of those sentenced by it, which ought to be handled in the Common Courts.
“The Small Claims Courts were much criticized by professionals who alleged that it was an elitist system, since it would be offering a second class Justice to the humbler population”, recalls the professor and coordinator of the survey Kazuo Watanabe, who took part in drawing up that law. “But the fact is that, at the time the courts were created, the price and delay of Justice inhibited its use, which, as we know, creates a social pressure cooker. We wanted to facilitate the access of the common citizen to Justice, in such a way as to inhibit small infractions, something similar to what happens in the United States”, the professor highlights.
The Small Claims Courts were revised by Law No. 9099, of 1995, which transformed them into Special Courts, making it obligatory for them to be implanted in the whole of the national territory. The competence of the Special Courts was changed, expanding the limit for civil lawsuits (excluding family lawsuits and lawsuits against the State) from 20 to up to 40 minimum salaries and including the enforcement of their sentences and also of enforceable extrajudicial deeds in the work of the Special Court itself.
“We decided to carry out this survey to verify the effectiveness of these courts and whether they had the conditions for attending to all the cases of up to 40 minimum salaries, should this become obligatory – at the moment, small claims can also be dealt with by Common Justice”, Watanabe explains.
The general conclusion of the team coordinated by the professor is that the Special Courts have a reasonable performance – in spite of the countless material and financial difficulties -, but there has to be a stop to expanding their competence, otherwise they will go into collapse. “Even before going into the field, we were already of the opinion that the 1995 law would expand too much the competence of the Special Courts, and that this would perhaps jeopardize the celerity and simplicity that these courts ought to have, according to their original conception.”
In the professor’s opinion, some legislators have lost the notion that the Special Courts ought to serve a larger idea, the democratization of the access to Justice. And they started to transform it into a space in search of solving the problems of the Common Justice. “For example, the law used to determine that only private individuals would have access to the Special Courts. But, with time, it was decided that microcompanies would also be able to take recourse to them. Furthermore, when the competence was expanded to cases of up to 40 minimum salaries, the presence of a lawyer came to be required, to go in with lawsuits between 20 and 40 minimum salaries – which is not necessary for cases of less than 20 salaries”, the researchers explain. One of the most important aspects of the Special Courts, their preference for conciliatory agreements, has also been jeopardized in recent years, according to Watanabe. “To start with, the conciliatory agents were recruited among lawyers, who would work on a voluntary basis”, he says.
With time, the volunteers diminished, and the compromise came to be carried out by law students as well, since in several regions of the state the Special Courts have an agreement with universities. “This has jeopardized the quality of service, making the annual average of conciliatory solutions fall from 90% to 25%, although we know that these agreements are extremely important for the formation of the pupils and for the courts. What is lacking is better training and monitoring”, he explains. The conciliatory solutions have also become more difficult with the expansion to more expensive cases (up to 40 minimum salaries).
The data from the Special Courts and access to Justice survey show a great difficulty with infrastructure in these courts, with problems ranging from physical space to a lack of computers. The shortage of funds means that in countless cases the officials themselves take responsibility for the purchase of equipment. Moreover, only the courts in the legal district of the capital have judges working on an exclusive basis. Outside the capital, the judges have to dedicate themselves to the Special Courts as an extra workload, without an equivalent increase in their remuneration.
“In the light of data like this, we suggest they stop widening the competence of the Special Courts and invest in them, just as the need for investing in Justice as a whole is patent. Furthermore, we think a change in mentality is important, in such as way as to interrupt the process of attributing to the Special Courts solutions that ought to be pursued in the Common Justice. It has to be remembered that they have a greater purpose: to guarantee access to Justice to poorer citizens.” Kazuo Watanabe intends to extend the survey to other states.
Special Courts and Access to Justice (nº 01/10724-9); Modality Regular Line of Research Grants; Coordinator Kazuo Watanabe – Brazilian Center for Judicial Studies and Surveys; Investment R$ 62,421.25