Amicus Curiae: brief comments
The figure of the amicus curiae (or friend of the court) came to prominence in the new Civil Procedure Code (CPC), in force since 2016, as a form of third-party intervention, with the aim of further improving the decisions rendered by the Judiciary and allowing the democratization of the debate, conferring greater legitimacy to the actions of the Supreme Courts.
The institute enables the participation of someone who is not a party to the lawsuit to assist the court, by virtue of their special knowledge and representativeness, providing a decision closer to the real needs of the parties.
Historically, in Brazil, interventions as amicus curae began to be authorized by some laws, even though this was not the nomenclature, so that certain regulatory and inspection entities could participate in proceedings involving matters under their jurisdiction, as provided in laws 6.385/76 (Securities and Exchange Commission), law 8.884/1994 (CADE - Administrative Council for Economic Defense), law 8.906/94 (Statute of the Bar Association) and law 9.279/96 (INPI - National Institute of Industrial Property). The institute gained relevance with law 9.868/99, which admits the intervention of third parties in direct actions for constitutionality. The New Code of Civil Procedure has literally put it into practice, becoming an important landmark.
The CPC/2015 expressly provides for the figure of amicus curiae in Article 138, bringing as requirements: the relevance of the matter (the matter discussed must go beyond the subjective interests of the parties), the specificity of the subject matter of the demand (requirement of technical or scientific knowledge that is useful to the process and to the conviction of the judge) or the social repercussion of the controversy (repercussion for the collectivity), as well as adequate representation (the natural or legal person or body or entity must represent the general interests of the collectivity or group or class).
The judge may, then, request, ex officio, or admit, at the request of the parties, the participation of the amicus curiae, and shall define its powers in the admission decision. It is important to emphasize that this type of intervention does not change the competence of the judging body and does not authorize the amicus curiae to file an appeal, except for the possibility of filing a motion for clarification and an appeal in the decisions that decide on the settlement of repetitive claims, pursuant to articles 976 et seq. of the New Civil Procedure Code.
The CPC does not establish the moment of amicus curiae intervention. However, the STF, in the judgment of ADI 4071, held that the amicus curiae may be joined until the case is included on the trial docket, since its purpose is to contribute to a better resolution of the controversy.
It must be taken into account that its performance does not bind the judge, but is able to influence the judgment of the dispute, providing subsidies to the judge. For such purpose, they may perform any procedural act related to this purpose, such as requesting the production of evidence and orally manifesting themselves.
Therefore, the presence of amicus curiae enhances the procedural debate, allowing a fairer and more reasoned decision, as well as being a factor of social legitimization, since it allows the pluralization of the dialogue.
Silvia Araujo
Post graduate student in Civil Procedural Law at CEDIN Law School
References:
DIDIER Jr, Fredie. Civil procedural law course: introduction to civil procedural law, general part and process of knowledge I Fredie Didier Jr. - 17. ed. - Salvador: Ed. Jus Podivm, 2015.
Tag:Amicus, Curiae, Postgraduate, Civil Procedure