Judges start granting awards to encourage compliance with rulings

Judges have been granting awards to parties in lawsuits to encourage compliance with court rulings. Set forth in the Code of Civil Procedure (CPC) of 2015, the measure started to be applied as a way of unburdening the Judiciary. There is everything from exemption from costs to a discount for paying compensation of moral damages.

Called “award sanctions”, they are included in Article 139, IV, of the CPC. It is the same provision used by judges to determine the blocking of a driver’s license and passport. It establishes that judges can “determine all the inducing, coercing, ordering or subrogatory measures necessary to ensure compliance with a court order, including in lawsuits the objective of which is monetary restitution”.

The awards, according to lawyers, encourage compliance with rulings and help solve one of the Judiciary’s main problems: execution, the slowest stage and where a large part of the lawsuits endure. According to the 2020 Justice in Numbers survey, released by the National Council of Justice (CNJ), at the end of 2019, there were 77 million lawsuits pending conclusion amassed at the first instance and over half of them (55.8%) were at the execution stage.

One of the awards adopted was the cancellation of fines. The measure appears in a ruling by the substitute judge of the 5th Employment District Court of Maceió (Alagoas State), Nilton Beltrão de Albuquerque Junior, in a lawsuit filed by an outsourced elevator operator at a university (lawsuit no. 0001583-64.2014.5.19.0005).

The judge decided to remove a fixed fine of R$ 1 thousand, established right at the time of notification, if the parties involved – a university and outsourcing company – presented the employee’s social security professional profile in 15 days. In addition to this fine, there were penalties for delay.

In a public civil action filed by the Federal Public Prosecutor’s Office against the federal government, an award was also established. The lawsuit (no. 0800093-83.2019.4.05.8504) deals with problems related to traffic, signalling and duplication of the BR-101/SE road.

In order to stimulate completion of the works, Judge Adriana Franco Melo Machado, of the 9th Federal District Court of Sergipe, granted a discount on the collective moral damages established – of 20% for each year of regular and timely completion of the works, in accordance with the schedule presented by the National Department of Transport Infrastructure (DNIT).

A discount for moral damages was also granted in a lawsuit heard by Judge Magno Rocha Thé Mota, of the Sole District Court in the Judicial District of Jaguaruana (Ceará State). He ordered a company to pay R$ 7,000 in compensation to a consumer for having improperly included his name on a restrictive credit registration (lawsuit no. 0000124-44.2014.8.06.0197).

But he established that, if payment were made in the period and no appeal lodged, the compensation would be reduced to R$ 5 thousand. The ruling was handed down in October 2020 and the lawsuit became final and unappealable.

According to lawyer Marcelo Mazzola, partner at the firm Dannemann Siemsen, who studies award sanctions in his doctorate, the ruling indicates that, for the judge, the appropriate amount to compensate the moral damages would be R$ 5,000 – an amount that could be increased if the defendant lodges an appeal. Despite not considering this measure exactly an award, he states that “the logic of awards, or of incentives, is still little used”. “It’s another option on the judge’s menu, it’s not just about punishment.”

The awards are not only in the more open provision of Article 139 of the CPC of 2015, says the lawyer. There are some very explicit provisions that follow this idea, he adds, and reinforce the possibility of “creativity” on the part of the judges.

He cites Article 701. It determines that if the claimant’s right is evident, the judge must grant the issuance of a payment order, affording the defendant a period of 15 days to comply and pay the attorneys’ fees. If the order is complied with before the deadline, the defendant will be exempt from paying the procedural costs.

There is also Article 827, says the lawyer, which establishes a reduction of half in fees if payment is made in three days. And Article 90, which waives the procedural costs and also contains a similar provision to that of Article 827. While Article 916 determines that, if the defendants pay 30% of the amount of the debt within the deadline for filing a motion, they can pay the remainder in instalments.

A Judge at the Federal District Court of Justice (TJ-DF) and professor at the Brazilian Institute of Education, Development and Research (IDP), Atalá Correia considers that award sanctions must be laid down and some care is needed. “I can even block a driver’s license, for example, but I can’t give a discount on an amount that is not mine but belongs to a party”, he says.

Paulo Mendes, a professor of civil procedure at IDP and attorney at the National Treasury, says that “creativity is needed nowadays for Justice to be more effective”. For him, the awards can also be used in lawsuits involving Public Finance. The professor mentions that, in addition to the explicit provisions, judges could remove a fine, for example, in the event of litigation in bad faith and then the obligation is complied with.

The CPC of 2015 really came with the intention of resolving disputes and it is in this spirit that award sanctions are included, according to Cristiane Carneiro, professor at FGV Law in Rio. “The cost of the Judiciary is very high for society and some issues could be resolved by the involved parties themselves.”