Garantia constitucional à razoável duração do processo e o papel no sistema jurídico brasileiro

Abstract

This work deals with the topic timely jurisdictional protection, while attempting to demonstrate that the court decision will not be effective and fair, unless it includes the reasonably-timed progress of the case, besides showing respect for the constitutional rights and privileges as well as meeting the requirements of the legal system. The question under investigation is: In what ways can the magistrates’ action within the Brazilian judicial system contribute towards putting into practice the timely jurisdictional protection supported by constitutional warranties related to the reasonably-timed duration of the proceeding? Considering that the reasonably-timed duration of the proceeding is an open question, it was necessary to interpret it in terms of the Federal Constitution, in order to unveil its real meaning and finally build up a concept. The focus of the analysis was then the absence of legal provision for establishing what is reasonably-timed duration for the proceeding. Research methods used, both as a general technique and in the approach here adopted, were deductive, and its central interest was to assure the reasonably-timed duration of the proceeding. We started from a constitutional analysis in order to identify ways in which the reasonably-timed duration of the proceeding could be changed from a mere abstraction to concrete action within the scope of the Brazilian Judicial System in the light of real cases. In order to reach this objective, an analysis was carried out of the differences between rights and fundamental warranties, so as to help build the concept intended. However, other situations have offered themselves for analysis, which are akin to the object of this study, such as the processual tardiness, their causes and consequences being then checked out. Another essential question in this study was the analysis of the Judicial Power, particularly the magistrates’ profile, with a view to organizing a historical account of their actions from the beginning of the absolutist regimes to the present time, using the Democratic State of Rule and Law as paradigm. This is explained by the fact that the object of this investigation has to do with the role of the Court and its contribution to the materialization of timely jurisdictional protection. Results of the investigation show that the role of the magistrate in the judicial process for the solution of conflicts is essential for the effectiveness of the constitutional warranty of the reasonable duration of the proceeding. This is achieved through the fulfillment of legally established deadlines for the practice of processual acts, as well as by means of the management of the jurisdictional activity, the permanent qualification of the magistrates, the performance of acts and/or procedures which may optimize the Court´s timing, or even through conciliatory procedures before the parties and their proxies.