Redução da atividade do juiz na direção e na instrução do processo em favor da tutela jurisdicional eficiente: sugestão para a obtenção de maior celeridade à tutela jurisdicional, menor onerosidade para o Estado e desafogo do Judiciário

Abstract

Individuals subject to the jurisdiction of a court expect, after all, the Judiciary to render fair decisions within a reasonable time, i.e., efficiently, as guaranteed by the Constitution. Recent polls conducted by accredited institutes showed that the Brazilian people are not satisfied with the Brazilian Judiciary System. They do not believe that court decisions are fair and just, and they find the process too slow. And the figures released by CNJ show that such opinion is not unreasonable. Thus, the Judiciary is not adequately complying with its mission. On the other hand, according to figures shown by polls, the American people s opinion with respect to their Judiciary is extremely positive. And the official figures released also show this sentiment. The United States Judiciary is not only more efficient than the Brazilian Judiciary, but also meets the needs of the public. In view of such evidence, we must find out the reason why this occurs. This paper proposes to show, without disregard to the cultural and socioeconomic differences between the two countries, that such greater efficiency of the United States Judiciary undoubtedly occurs, for the most part, because the adversarial system adopted in the U.S. does not require action from the judge for the process to move forward, and depends exclusively upon the parties involved and their attorneys. The judge only supervises the actions of the parties involved, and acts firmly when needed. On the other hand, in Brazil, which adopts the inquisitorial system, the processing of the case is entirely dependent on the judge s actions. The judge must promote, order, decide, determine (including on his own initiative) the production of evidence and preside over long hearings in all cases he has under his jurisdiction. This has the inevitable effect of prolonging the duration of the process and creating a backlog. It also decreases the quality of court decisions, due to the decreased time the judge has to render judgments. This paper will show that giving judges more power and wider scope of action does not help to achieve legal security and the pursuit of the truth, and on the other hand, can slow the speed of the process and burden the State. The American adversarial system, and particularly the discovery phase, proves that we can have a much more efficient process, when the parties, their attorneys, and the judicial clerks are responsible for moving the process forward. This paper does not intend to promote the privatization of the process, since the jurisdictional function is an inalienable prerogative of a sovereign State, and cannot be suppressed from it. Borrowing an example from the private sector, we cannot expect that chairmen or even the top executives of large successful companies get involved in all matters, since it is not feasible. Their job is to set guidelines and make important decisions. Therefore, we conclude that we are insisting on going in the wrong direction. Perhaps decreasing a judge s duties is the solution to have an efficient court system. Let him focus on his main responsibility: the judgment which is not small thing so he can decide with the required temperance and in reasonable time