Alberich, lord of the Nibelungs, according to Norse mythology, forged a ring that carried both a blessing or power and, at the same time, a curse. And these brief writings, which are intended merely to spark reflection, will address a power that often carries with it a harsh curse.
When we speak of claims for damages, actions for indemnification, actions for compensation, etc., we are led to think—almost mechanically—of property damage that gives rise to indemnification or moral damages (such as the well-known case of undue credit reporting) that opens the door to a claim for compensation. It is a natural reflex. We think of everyday damages and the importance of the compensation system established for them.
However, we forget about deeper, more delicate situations—especially those linked to major tragedies and/or existential harm—in which a harsh, raw, and painful element is ever-present: memory. Time has the power to soothe and heal wounds. But it has a cruel adversary: remembrance. She, the mistress of yesterday, seizes every possible moment and opportunity to bring to the surface what lay buried deep within, to stir up what had already settled. And it is time itself that tries to extinguish the engine that keeps the power of remembrance growing ever stronger. It is memory—the act of recalling—that is responsible for generating revictimization in the context of this paper. The act of recalling, of reliving the pain. And every episode is an unfortunate opportunity for suffering.
Revictimization is a subject of study in Criminology, particularly in crimes against sexual dignity and domestic violence. In the civil sphere, emotional abandonment goes hand in hand with this issue. But the sphere of civil liability, when grounded in existential harm, is fraught with questions that, when raised, lead us to reflect on the harm intrinsic to the claim itself.
In older legal texts, the concept of strepitus judicii (literally, the noise of the trial) sought to encompass the harm inherent in the handling of criminal proceedings and, it was argued, justified restrictions on the right to bring actions for what were, at the time, crimes against public morals. Today, as this perspective has evolved, a journey has begun to prevent victims from being subjected to unnecessary exposure.
Of the various forms that revictimization can take, two are of direct relevance to this brief article. The first arises from oppressive conduct by the State—whether in the form of the judiciary or the administrative branch—during the conduct of the proceedings; the second stems from the excessive duration of the proceedings. The first aspect has already been analyzed under criminal law. The second, however, remains overlooked due to the mistaken belief that a proceeding lasts as long as necessary.
Under current law, it is evident that the criminal procedural system—both the general system and the Special Criminal Courts—has long demonstrated concern regarding revictimization. Since 2017, with Law 11.340, the issue of revictimization has been addressed in Article 10-A of that law. Previously, institutional violence had already been recognized as a mechanism that could lead to revictimization in Law 13.431/17 (in Article 4, IV). The National Council of Justice issued a statement on the matter in 2018 through Resolution 254. More recently, Laws 14.425/21 and 14.321/22 introduced provisions criminalizing acts of institutional violence1.
The second issue, which warrants analysis from a de lege ferenda perspective, is the possibility of establishing—similar to what occurs in criminal proceedings—a special system of time limits, without undermining or eliminating the right to adversarial proceedings and a full defense, but ensuring a swift progression from the filing of the action for existential compensation to the final judgment. It is also essential to consider the implications for the appeals system, as the legislature has already tentatively done in Article 1.015 of the Code of Civil Procedure, supplemented by the Superior Court of Justice’s interpretation of the provision.
There is a well-known saying, immortalized by Rui Barbosa, that justice delayed is, in reality, a clear and manifest injustice. However, the procedural deadlines imposed on judges, court clerks, and court staff—in short, on the judiciary as a whole—are, more often than not, non-binding (so-called “improper” deadlines). In attempting to bring these concepts together, one must not confuse this issue with the possibility that a summons might take one or two years to be served, or that a case, at the stage of a final decision, might take months to be adjudicated. Nor should one confuse it with a medical malpractice case in which the court’s consideration of whether or not to admit a third-party complaint is not resolved until nearly three years later, at the appellate level.
The Special Courts, by law, were intended to expedite less complex cases and, as such, fail at the outset to serve the proposal presented here. Worse still, it is a fact that, in legal practice, cases filed through this system sometimes end up taking longer to reach a final decision than if the ordinary court system had been chosen.
It should be noted that it is unreasonable to place within the same framework of preference claims for compensation that are solely material in nature—arising from property damage or even moral damages—but which do not strike at the very core of one’s existence. It is necessary to establish a thematic distinction regarding the circumstances in which such claims are appropriate.
Serious medical errors, emotional abandonment, major accidents—in short, issues that take a toll with each new hearing. It is also a fact that, if the determination of whether or not the expedited procedure applies were left to the judge, there would be a clear risk of creating additional avenues for appeal, which, rather than speeding up the process, would slow it down even further. Similarly, establishing a closed, narrow list of scenarios in which the special procedure should be recognized—thereby excluding new understandings of existential harms from the scope—would also be a dangerous development. In this context, a middle ground may present itself as a solution. A list, provided by way of example, would establish the automatic application of the special procedure, which could be challenged only if the judge determines that the legal provision does not adequately address the situation; in such cases, the interested party would be entitled to file an interlocutory appeal to obtain the special procedure. This limitation could serve as a deterrent against the misuse of the procedure.
That said, how might such a special procedure for existential claims be conceived?
An important first step in highlighting the special nature of the case involves defining the beneficiaries of an anticipated legal provision for expedited proceedings. To this end, the concept of “hyper-vulnerable” (which, at the time of this writing, includes indigenous peoples—REsp 135.867—, children and adolescents—REsp 1.517.973—, the elderly—EREsp 1.192.577—, people with disabilities—REsp 931.513—and women experiencing domestic violence—RHC 100.446), a term that has been coined by the STJ, would serve as a safe harbor from which to begin. Alongside the subjective rationale, the objective foundation based on existential claims would establish the fundamental framework for underpinning the expected legal norm.
All of this would culminate in the proceedings. Once the claim is filed, the case would be sent to the judge on an urgent basis, and, following the court order, service of process would be carried out on an urgent basis. Once this is done, specific deadlines would be set for procedural steps, such as the well-known “decision within 10 days,” for example. Finally, a deadline for the judgment would be established, taking into account whether or not an expert evaluation is necessary, in order to limit the duration of measures that solely seek to delay the proceedings. For here, time is a source of pain and suffering.
All of this renders the educational function of civil liability (general prevention) a dead letter and ultimately raises a complex question: if the popular maxim states that crime does not pay, will we still persist in accepting that civil wrongs do pay? And, at the same time, insist on ignoring the importance of protecting the victim in existential claims for compensation?
The proposal could encompass variations, for example, a specific procedure for cases involving expert testimony based on personal examination and another for cases where the expert examination focuses on documents; the effective justification for the need for the plaintiff’s testimony requested by the defendant are examples of procedural adjustments that would not undermine the case or curtail the constitutional guarantee of a full defense. On this last point, the elimination of unnecessary evidence or investigative measures, as provided for in Article 370, sole paragraph, of the Code of Civil Procedure, could—even before any legal amendment—bring greater humanity to existential claims. However, today, under the pretext of not impeding the procedural defense, there are cases in which the most outlandish and incongruous measures are granted, or even where the preliminary review phase is passed with a simple list of the requested evidence, without any need to justify what is being requested. For all these reasons, when addressing institutional violence, the legislature missed a major opportunity to address civil claims. It is essential to understand that those who suffer civil harm must be duly treated as victims, and the same system that recognizes protection for the defendant must recognize the importance of safeguarding those who, at every stage of the legal proceedings, are reminded of their pain, suffering, and trauma.
Thus, this is not a settled matter, but it is hoped that, like every stitch in a crochet project, this will be a step that—along with those that came before it and those yet to come—will one day lead to the understanding that the victim has already suffered and continues to suffer, and that there is no point in further reinforcing that memory. And on this journey, if it cannot be completely erased from the forge of the King of the Nibelungs, may at least the ring be broken, freeing a portion of Brazilian citizens from the curse.
1 For a comprehensive historical overview, we recommend reading the text by Renee do Ó Souza, published here.
Article originally published on May 12, 2022