The reasonable length of proceedings
The principle of reasonable length of proceedings was included in the list of fundamental rights of the Constitution, by Constitutional Amendment Constitutional Amendment 45 of 2004, which added subsection LXXVIII to art. 5, stating that "everyone, in the judicial and administrative sphere, are assured the reasonable duration of the process and the means to ensure the reasonable duration of the process and the means to ensure the expeditiousness of its proceedings".
For the effective jurisdictional provision by the State it is necessary to ensure a reasonable time for the process, avoiding procedural procedural delays. But what is meant by reasonable time?
There is no legal provision on the definition of what would be the time qualified as reasonable for the conclusion of the process. The new CPC establishes that this guarantee is applicable to the full solution of the merit, including the satisfactory activity (art.4), i.e., the time understood encompasses not only the time limit for the pronouncement of the sentence, as well as the time limit for the of the satisfactory activity. Article 139, item II reinforces this guarantee by establishing that the judge is in charge "II - to ensure the reasonable duration of the proceedings".
In reality, the length of a trial depends on several factors, such as the complexity of the case, the behaviour of the parties and the judicial authorities. In this sense, the European Court of Human Rights has established three objective criteria for determining the reasonable length of proceedings. These are: the complexity of the case, the conduct of the litigants and their attorneys and the performance of the judicial body. There is a fourth criterion, added in Brazil by Freddie Didier, which is the analysis of the structure of the judicial body.
It should be noted that in Brazil, law 9504/1997 in its article 97-A stipulated the term of 1 year as reasonable for the of the process that may result in the loss of the elective mandate, which can can serve as a parameter.
For the STF, the reasonable duration of a proceeding must be verified in light of the complexity of the case, the performance of the parties and the actions of the judge, that is, "it cannot be considered in isolation and out of context with the peculiarities of the concrete case". Furthermore, the Superior Court of Justice (STJ) understands that the assessment of the reasonable duration of the proceedings involves a reasonable judgment, in which the peculiarities of the case, the complexity and the factors that may influence the course of the action must be weighed.
There are some procedural instruments that allow the realization of the principle of reasonable duration of the process, such as the representation by excess of time, which can result in the loss of jurisdiction of the court due to delay (art. 235, CPC); the writ of mandamus by omission; the civil liability action against the State, in case the delay causes damage; the complaint for usurpation of jurisdiction and the impugnation of the promotion of the judge who conducts the process (art.93, II, 'e', CF and art. 7, law 4717/65). One cannot forget that in order for the proceeding to be subject to the dictates of reasonable duration, it must be conducted with respect to the procedural rites, without undue delay, observing the due legal process. The existence of a series of mandatory acts, the requirement of contradictory and ample defense are guarantees that delay the speed of the process, but that can never be sacrificed for the quality of judicial provision.
Silvia Araujo
Post graduate student in Civil Procedural Law at CEDIN College.