Name: TAINÁ AGUIAR JUNQUILHO

Publication date: 13/05/2016
Advisor:

Name	Role
GEOVANY CARDOSO JEVEAUX	Advisor *

Examining board:

Name	Role
GEOVANY CARDOSO JEVEAUX	Advisor *
HERMES ZANETI JUNIOR	Internal Examiner *

Summary: The Constitution of 1988 is the mark that consolidated the coexistence of the diffuse and concentrated models of constitutional review in the Brazilian legal system. In recent years, one may note the tendency (which is demonstrated both by decisions of the Federal Supreme Court Justices and by the gradual insertion of procedural mechanisms in various legal acts) called "objectification" of the diffuse review, through which effects previously exclusive of the concentrated review are attributed to the diffuse review. In view of this phenomenon, this paper aimed to discuss the role of the Brazilian Federal Supreme Court in the diffuse review of constitutionality. For analyzing the arguments used by the Federal Supreme Court Justices in decisions related to the topic, 8 decisions were selected by non-probabilistic intentional sampling, according to the following criteria: 1) The decision to be evaluated must have been quoted by, at least, two different authors who discuss the topic; 2) Besides the fact the decision had been quoted by two different authors, it must figure among the results when a search on the Supreme Court website is performed using the keywords "objectification", "abstrativization", "transcendent effect". From the evaluation of the decision reasoning, a conclusion emerged: the "objectification" (the use of this term is not a consensus among the Justices, which posed an obstacle both to the search and to the exact understanding of the term) is a phenomenon leaded by Justice Gilmar Mendes. This objectification is demonstrated in several different ways at the Federal Supreme Court, as for instance: the attribution of pro-future effects or ex nunc to decisions of diffuse review; the constitutional mutation of the Article 52, X of the FC/88 and the possibility of Claim based on settled opinion on diffuse review. It was also observed that the Federal Supreme Court does not state the "objectification" thesis accurately, what leaves several questions to any person subject to the jurisdiction willing to understand it. Questions such as: in which moment one may consider that a precedent was formed by the Federal Supreme Court? The precedent in diffuse review binds only the Judiciary or it is applied to the other Powers as well? In the judgment of cases in which the Nationwide Repercussion is acknowledged, the interest in the concrete case persists? Can the Claim be filed to preserve decision made in diffuse review? Is there any need of a Binding Precedent? There are no answers to these questions. In order to carry forward the proper model of formally binding precedents consolidated by the Code of Civil Procedure/15, it seems necessary to bring this tradition to the Brazilian cultural framework, in a way that the Federal Supreme Court realizes its role and cope with the consequences of its prominent function. After all, according to the CCP/15, the decisions in diffuse review already have a de iure binding effect. Therefore, if the Constitutional Court is the ultimate interpreter of the Constitution, it shall watch over it based on solid grounds, respecting the nuances of the concrete case, in a way that makes it possible to adapt the Theory of Precedents to Brazil.

Keywords: Diffuse constitutional review. Judicial precedents. Code of Civil Procedure of 2015. Objectification.

Access to document