Impacts of the current pandemic on the routine of the Brazilian courts

Over the last weeks, due to the coronavirus pandemic, people have witnessed with astonishment the necessary interruption of several basic services, which are constitutionally assured and regularly provided, among them, services provided by the courts.

In this regard, as soon as the government identified how large this problem is, the National Justice Counsel (“Conselho Nacional de Justiça” (“CNJ”)) published Resolution no. 313, setting out the court’s extraordinary on-call regime in order to standardize the functioning of the Brazilian courts. The aim is to prevent the dissemination of the new coronavirus and at the same time provide access to justice during this emergency period (these measures do not apply to the Superior Courts of Justice and Electoral Justice).

In general, the courts will function during regular business hours, but are suspended for “in person” work, which will now be carried out remotely (Article 2 of the Resolution). The resolution also provides for new measures including: the publication of judicial and administrative acts by the press; assistance to lawyers, prosecutors, public defenders, public ministry representatives and police authorities, which should also preferably be carried out remotely (Article 3 of the Resolution).

Urgent activities continue to be processed normally, such as applications for habeas corpus, writs of mandamus and preliminary measures for provisional protection of any nature, including before the Small Claims Court (Article 4 of the Resolution). There are also urgent measures of a criminal nature, which include requests for the issuance of a court order, if required.

An important observation is that, actions for execution on legal fees have been left out of the classification as urgent matters and the execution of such actions has been suspended, except those actions that are already in the phase of establishing the liquidated value of such fees.

The resolution also sets out that from the date of publication until April 30, 2020, all legal deadlines for actions are suspended. This does not apply to urgent actions necessary to preserve rights. It establishes the possibility of home office for judges, employees and collaborators, individually, to carry out internal proceedings, such as preparing decisions and sentences, drafts, online sessions and administrative activities (Articles 5 and 6 of the Resolution).

This suspension of deadlines refers to all actions that have already been filed, suspending any amendments to initial petitions, presentations of contestations, requirements for evidence, presentation of objections and appeals, among others. It also applies to deadlines for payment of a liquidated amount resulting from compliance with awards in respect of motions and in the final judgment of actions, since the Superior Court of Justice (“Superior Tribunal de Justiça” (“STJ”)), in Action “REsp” no. 1,708,348 / RJ, included such measures in the list of procedural deadlines.

It is important to note that the suspension set out by the resolution only impacts actions before the courts. Deadlines related to statute of limitations and loss of procedural rights are not impacted.

Different to the position in other state agencies, these measures for the courts have led to a massive increase of productivity. According to the São Paulo Court of Justice, between March 16 and April 4, the São Paulo courts issued more than 1.5 million decisions (1.434.229 at 1st Instance level and 81.090 at 2nd Instance level).

The increase of the number of decisions from the 1st Instance is more perceptible since the judges and employees of the 2nd Instance are already more used to performing their activities online, due to so-called virtual judgments, and the current changes do not substantially affect their work routines.

Considering these unexpected changes, it sounds reasonable that lawyers use this moment to benefit their clients from this welcome increase of productivity in the courts, adopting pro-active postures in their legal strategies.

In addition to early petitioning in advance of deadlines, it has also been possible to obtain decisions directly from judges in urgent cases, just by previously contacting the court registries and chambers by phone or e-mail, and requesting a schedule of a remote session to this end.

The adoption of this diligent posture not only benefits the client, who is able to obtain results faster, but also the lawyer. The possibility of lawyers being able to perform their work in this difficult period avoids the accumulation of backlog and ensures they will be ready to act when the current crisis comes to an end.

Source: Lexology - https://www.lexology.com/library/detail.aspx?g=76dc7cca-39fe-4671-8b01-f834bccdc9a8