The recent debate on the management of mega criminal cases has been dominated by the biased narrative that the problem lies in the abusive exercise of defense rights. Proposals that aim to impose fines on parties and lawyers, or compress procedural deadlines, offend fundamental constitutional principles. In the 1st Instance there is already exclusive dedication of collectives to large processes. Currently, the bottleneck occurs in the Courts of Appeal, where mega-processes wait years for consideration. The solution cannot involve inhibiting the right to defense or reducing access to justice, but rather reside in making the system respond with quality and speed.
Proposals for compressing defense rights face insurmountable constitutional barriers provided for in articles 18, 20 and 32 of the Constitution (CRP) which enshrine procedural guarantees that cannot be relativized by the procedural volume. Limiting the exercise of defense through monetary penalties or tight deadlines represents a direct violation of these precepts. And, far from speeding up processes, these changes will generate more incidents, nullities and litigation. Each fine imposed, each compressed period that prevents an adequate defense, becomes an appeal, an argument of nullity, a disciplinary procedure.
Equally unacceptable is the growing tendency for courts to resort to adjective pretexts and other expedients to simply not consider the issues submitted to them. This practice proliferates both in the 1st Instance and in the appeal courts, becoming a covert way of denying Justice.
Except for indigents who benefit from legal aid, users of justice pay very high fees to obtain a response from the courts. When that answer is “we don’t appreciate it,” the fee should be refunded or, at the very least, substantially reduced. At the top of the pyramid of this poor service is the Constitutional Court, which systematically does not consider the overwhelming majority of appeals that reach it, while simultaneously applying truly usurious court fees.
The real solution involves vertical specialization and procedural speed in the higher courts. The first essential measure is the creation of groups of judges specifically allocated to mega-processes. Similar to what happens in the 1st Instance, these magistrates would dedicate themselves exclusively to these complex processes, acquiring specialization and allowing continuity in the assessment. This specialization not only speeds up analysis but also improves the quality of decisions, reducing errors that generate more resources.
It is also imperative to establish differentiated maximum deadlines for deciding on nullities and incidents, and interlocutory appeals. These deadlines, met by dedicated groups, would prevent secondary issues from lasting.
Contrary to what some voices suggest, procedural efficiency and defense guarantees are not antagonistic objectives. A system that works well is one that decides quickly, but decides well. Specialization allows precisely this: faster decisions, because they are more informed, fewer resources due to fewer errors and fewer incidents, because the process flows properly.
Comparative experience demonstrates that efficient judicial systems invest in expertise and resources, not in restriction of rights. We can follow the easy – but unconstitutional and ineffective – path of restricting defense rights or inventing reasons for not appreciating the merits of the issues. Or we can have the courage to implement structural reforms that, although more demanding, respect the Constitution and effectively solve the problem.
The choice is clear: invest in quality Justice or resign ourselves to a Justice that is neither fast nor appreciative, but which charges increasingly higher fees for a service without quality.
Lawyer and founding partner of ATMJ – Sociedade de Advogados
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