The amicus curiae character was imported from the American Law, as adopted at the Supreme Court, in order to protect collective and diffuse rights. Its function is to draw the attention of judges for any matter that might, otherwise, escape from their knowledge. Today it is covered by Rule 37 of the Rules of Procedures of the Supreme Court of the United States. The applicants for the condition of amicus curiae have the duty to acquire the consent of the parties who are involved in the dispute, even if they seek to make a spoken allegation of their arguments. In the absence of the parties consent, the amicus curiae shall attach to the request for admittance, the reasons why the consent was not granted, because formally he is not one of the parties in the process. However, regardless of getting the consent of the litigant parties, the Court may allow the participation of the amicus curiae in the process, and even determine a preliminary hearing with the parties to decide about such participation.

In Brazil, the first legislative reference to the amicus curiae participation, was in article 23, 1st paragraph, of Resolution number 390, September 2004. After that, the 2nd paragraph, article 7, of Law 9868, November 10th, 1999, stated that “the reporting judge, when considering both the relevance of the subject and the parties representatives, may admit, through unappealing order, considering the deadline in the paragraph above, the participation of other agencies or entities”.

Since the appearance of the amicus curiae in the Brazilian Civil Law, it has always been, and still is, a third party who is involved in the proceedings via judicial writ, or by free initiative. He has the objective of providing the Court with evidence deemed as important, useful, and necessary for the trial of the case. His appearance was justified by the need of outside expertise to be brought to the trial Court level. It is a neutral institution, approaching the judge to the relevant facts to the trial.

The big difference between this special assistance, and the cases with intervention of third parties, as stated by Chapter 6, of the Civil Proceedings Code, is precisely this lack of legal interest of the assistant, which is a factor found in the cases mentioned by the CPC. It requires an environment of public interest, or interest of the society.

Nevertheless, in practice, it appears that private interests outweigh the public interest, and such character acts as another interested party in the process, rather than an auxiliary of justice, to solve the dispute in a more quick and just way.

Furthermore, the amicus curiae is no longer a neutral character, and becomes a litigant, and thus a third party who is interested in the outcome of the dispute. He becomes a subject of the process, acting almost like one of the parties.

Institutions such as the Public Prosecution Service must act as custus law, or surveillance of the law, and not as amicus curiae. Therefore, the participation of the friend of the Court is inverted, turning it into a third party, disregarding the constitutional principle of equality, and also disrespecting the principle of broad defense as it inhibits the defendant’s right to be defended, taking sides, evidently supporting one of the parties.

The amicus curiae character refers to a person, entity or institution, with deep interest in a legal issue brought to judicial discussion, in which this character is involved as a third party, not one of the disputing parties, driven by an interest which is greater than that of the parties involved in the process.

What is of real concern is to analyze the mutation of the amicus curiae in the law system, in the change of the position of this character. The objective of its establishment was to answer the concerns of the community, assisting the efficient and, particularly, effective resolution of the dispute.

Like everything else in our country, the reason for creating a character to serve the community was distorted, transforming it into another political “institution”, which aims to protect more and more the interest of individuals, becoming a totally one-sided character in the conflict’s resolution.

It is inconceivable that political figures, interested parties, one-sided parties, are allowed to act as assistant to the judge. The amicus curiae must be the one who has technical knowledge, who will give an opinion, and assist the solution. This character must never intervene in the process, trying to influence the judge's conviction. Public individuals should not be allowed to act as amicus curiae, they should leave this position to be filled in by doctors, experts, engineers, biologists, in other words, people who express their opinion and then waited for the court decision, especially because it is about an intervention made possible only in constitutional subjects.

It is important to mention that the character of the litigious amicus, offends the principle of procedural equality, transmitting to the favorable party a huge advantage in the decision of the case.

Moreover, as the eminent Judge CELSO DE MELLO stated, the admission of a third party, in the position of amicus curiae in objective process for abstract regulatory control, is qualified as a factor of social legitimacy of the Supreme Court’s decisions, while being the Constitutional Court, because it allows, in the premise of the democratic principle, the opening of a constitutionality focused surveillance proceeding, in order to enable the realization, always on a very pluralist basis perspective, of the possibility of formal participation of entities and institutions which effectively represent the general interests of the community or which express the core relevant values of groups, classes or social strata”.  (ADI 2.130-MC, Reporting Judge Celso de Mello, DJ 02/02/01).

Thus, the Legislative Power is entitled with the urgent need to settle this subject and while there is no legal regulation, the Federal Supreme Court has the duty of care, sensitivity, insight to prevent the use of procedural lobby.

Denize do Val and Pedro Soares de Mello - Partner and Intern in Do Val, Pereira de Almeida, Ciaglia e Nascimento Law Firm.

Contact: doval@dovaladvogados.com.br

Issue in April, 2009