Collective Guardianship: material and procedural aspects” Studies in honor of Prof. Sebastião Sérgio da Silveira.” Coordinators: Paulo José Freire Teotônio and Ricardo dos Reis Silveira. Theme: “The principle of congruence and the effectiveness of decisions in the Brazilian collective process.”
Prof. Dr. Lucas de Souza Lehfeld, Prof. Dr. Zaiden Geraige Neto and Arnaldo Rodrigues Neto
The last decades have brought countless innovations and transformations that have intimately affected the whole of society, and especially the way mass conflicts are viewed. New economies have emerged throughout the 20th century that are equally globalizing and that, necessarily, demand a new attitude from society concerned with the interests of all.
Although this evolution has occurred in an intense and immediate way within the community, as was to be expected, such speed has not occurred in the field of the legal system. The instruments and mechanisms available at the time were inefficient in relation to the collectivity’s interests, and effective (social and public) movements for the defense and protection of these rights emerged in 1970.
From then on, in embryonic form, the emergence of a micro-system of collective rights began, which guaranteed that the processes would be more effective. Validly, the conception that the process is justified by means of jurisdictional activity, as long as it is focused on its final activity of social pacification, becomes increasingly present when analyzed from the standpoint of collective protection.
However, the evolution of the collective law institute was and still is necessary, leading the legislator, in a more recent context, to build a micro-system that is more adequate to the peculiarities of collective protection. This immersion, focused on the Brazilian legal system, went through the three “waves” of the Mauro Cappelletti and Bryant Garth movement, culminating with the last one (access to justice approach).
Therefore, in order to assess the effectiveness of access to justice, it is necessary that the collective process formally assists the enforcer of the law in achieving the concrete purpose of a given judicial measure, providing technical means for the right achieved by sentence to present its feasible and concrete side in people’s lives and not remain only in the realm of ideas, without there being an effective practical consequence both to the injured parties and especially, for the person who caused the damage.
Collective redress, when properly represented and instructed, provides Justice. That, in turn, raises the spirit of the necessary reflections to the full and continuous development of the institute, an instrument of undeniable importance of access to justice because it ratifies several essential principles of a Democratic State of Law (speed, procedural security, and especially equality), in addition to bringing a sense of justice into the heart of society with the culture of full access to an effective jurisdictional response.
However, good applicable legislation and situations that fit the concept of collective rights are not enough. What good laws are enough if the result is not fair and effective?
Thus, this study concentrates on the so-called third wave of access to justice, focusing on the relativization of the principle of congruence or adstriction, given that it is, s.m.j., a way to achieve the objectives of having a syncretic and, mainly, effective collective process.
2. Effective access to justice
The study focused on access to Justice requires that some preliminary clarifications be made, especially related to the fact that it does not concern only the Judiciary Branch, in fact, it is not effective to have access without having a fair solution to the demand.
Before any pretension, one should understand effectiveness as the effective right to receive, respecting all prerogatives, a fair jurisdictional answer and, mainly, one that can represent something effective in the concrete plan, within society.
The uneasiness with the theme has been addressed by jurists Mauro Cappelletti and Bryant Garth, who assert that defining “access to justice” is not a simple thing. Jurists address the two major objectives of the legal system, namely: i) the possibility for citizens to seek the State in order to have their demands met, and ii) that the State’s response be individually and socially just.
The so-called “access to Justice” movement, with vast content for the development of research in the broadest fields of social sciences, finds in Law a new theoretical approach (CAPELLETTI, 1994) aimed at combating “juridical formalism”, as a system that identifies law from an exclusively normative perspective – and advocates the insertion of other real components such as subjects, institutions and processes, all in tune with reality and social context (CAPPELLETTI, 1994).
Such a theoretical vision of access to justice represents a substantial change from the one-dimensional and formalistic thinking to another understanding of Law, a three-dimensional conception that considers not only the legal norms in isolation, but also in conjunction with facts and values, bringing its modern meaning.
As for the difficulties of “access to justice”, it is possible to interpret them from different points of view. In general, the term has been associated with that of social justice, whose adjective emerges as a collective response to the individualistic character of traditional thinking, which often contributed to the increase of social and economic crises in the course of the 19th century.
Strictly speaking, the discussion is not so recent. Plato and Aristotle already brought the universal idea of justice deeply connected with that of social justice, although without using the adjective, because they understood that one was inherent to the other. As a historical reference, the first recorded use of the expression “social justice” is attributed to Pope Pius XI:
[…] idea that every human being has the right to his share in the existing and produced material goods, and that his share should be guided by the norms of the common good, since reality was showing that wealth was inconveniently distributed, because a small number of rich people concentrated the goods before a multitude of miserable people (VERONESE, 1997).
The Catholic Church then began to incorporate this social notion from 1931 on, and later expressly adopted the phrase “social justice” in its pontifical documents. This contributed to the popularization of the term, taking it to various movements in society and, consequently, to its legal systems, as if there were semantic harmony. In any case, it is true to say that social justice “is a juridical-political-sociological category about which there is still no common sharing” (PASOLDI, 2013).
Regardless of the lack of universality, the correlation between the object of social justice and the social issue is evident. Situations such as the problem of human labor, ever since Rerum Novarum, have been present in Catholic doctrine as a key to the social question.
In a narrow sense, the expression represents the dogmatic aspect of access to judicial protection, that is, the effective guarantee of access to the Judiciary by means of a demand inserted in a formal and instrumental universe of the process aimed at settling disputes.
And, finally, there is the integralist vision where access to justice admits a more coherent character, not only when reconciled with the theory of fundamental rights, but, mainly, with the global objectives of the process (legal, political, and social). Therefore, it is possible to affirm that accessing justice is accessing the Law:
[…] That is, to a fair legal order (= enemy of imbalances and devoid of the presumption of equality), known (= socially and individually recognized) and implementable (= effective), contemplating and combining, at the same time, an appropriate list of rights, access to the courts, access to alternative mechanisms (mainly preventive ones), with the holders being fully aware of their rights and enabled, materially and psychologically, to exercise them, by overcoming objective and subjective barriers (. ..) and, in this last extended sense that access to justice means access to power” (BENJAMIN, 1995).
In a classic work on access to justice, Mauro Cappelletti and Bryant Garth clarify that the problem can be visualized through three “waves”. The first wave is concerned with guaranteeing effective and universal legal assistance; the second wave, also known as the “collectivization of the process”, proposes an adequate reproduction of collective interests lato sensu, which include diffuse, collective (stricto sensu) and homogeneous individual interests.The third wave (also called the “approach of access to justice” by the authors) is more comprehensive because it represents the conjunction of several factors to be analyzed that, consequently, will lead to the improvement of the means of solution of social conflicts.
From the conjunction of factors expressed in the third and last wave, new judicial mechanisms have been born to, above all, promote the celerity of the process, such as the special courts, the possibility of injunctions, specific procedures, as well as other alternative conflict solution institutes (arbitration, mediation, conciliation, etc.).
In this way, a new way of understanding access to justice arises, through which it becomes necessary and mandatory to value procedural legal science, with the effective study of its objects according to the political, social, and economic context. This will undoubtedly demand from law operators “constant recourse to other sciences, including statistics, which will enable them to better reflect on the expansion and complexity of new litigation and, from there, to seek alternative solutions to these conflicts” (MARINONI, 1993).
Kazuo Watabane in Francisco Barros Dias (1996), explains that access to justice represents not only “access to a fair process, access to due process of law”, but mainly a means of ensuring access itself:
A fair process, the access to due legal process, to an impartial Justice; to an equal Justice, contradictory, dialectic, cooperative, that puts at the disposal of the parties all the instruments and necessary means that allow them to sustain their reasons, to produce their evidence, to influence on the formation of the Judge’s conviction. (DIAS, 1996, p. 212).
On the other hand, in a comprehensive sense, access to justice takes on other meanings, such as access to information and legal guidance, as well as the possible means of resolving conflicts, but in an alternative manner. It also includes the possible means for conflict resolution, but in an alternative manner, substitutes for the exercise of citizenship in search of a just legal system. Thus, with the effective participation of all, the common good is sought through the process, resulting in the paradigm of responsible citizenship:
[…] responsible for his history, that of the country, that of the collectivity. Born of a need that brought to the consciousness of modernity the democratic sense of discourse, that is, the instituting desire to take the floor, and to be heard. It is necessary, therefore, that the jurisdiction also be thought of with various scopes, making it possible for the process to emerge as an instrument for realizing the power that has various ends (DIAS, 1996, p.212).
As an example of successful experience, Canadian law has shown that one of the solutions that has presented effective results in recent years has been based on facilitating access to the judiciary, based on two central ideas: the creation of methods and systems that are accessible to citizens and that are able to produce their individual results in a fair manner within society. Nicole L’Heureux (1993) points out that the special courts and the so-called collective actions in a broad sense are concrete positive consequences of the congruence of such fundamental ideas for achieving the purpose of access to justice.
However, turning to the objectives of the present study, one must return to the “third wave” or “access to justice approach” referred to by Cappelletti, since it involves advocacy, judicial or extrajudicial, whether by private lawyers or public defenders, going much further, as it focuses on the universal set of institutions and structures, individuals and procedures employed for processes aimed at solving the problems inherent in modern society. In effect, in the authors’ view, they seek to reconcile the techniques of the first two waves of reform and treat them as only some of a series of possibilities for improving access to justice. A question of utility and especially necessity in our current society.
3. The Effectiveness of the result: sentences in collective actions
Marinoni, Arenhart and Mitidiero (2015), state regarding the philosophy of class actions that “modern society is characterized by a profound change in the framework of rights and their form of action.
In fact, the protection of diffuse, collective and individual homogeneous rights, protected under the domain of the so-called “renovation waves”, advocated by Mauro Cappelletti and Bryan Garth (1998), has served as a revolution in the system of proceedings in Brazil.The old procedural model, with its individual, patrimonial and compensatory character, is no longer sufficient to solve social conflicts,
Thus, the relevance of reformulating the schemes regarding processes, so that they are able to respond to contemporary interests, arises.
In view of these needs and new perspectives towards collective protection, there is the “collective lawsuit”, influenced by North American class action, seeking, by means of a deferred legal protection, to meet the rights of the entire community (diffuse), of a class of people linked by a basic legal relationship (collective) or even a group united by a factual situation (homogeneous individual).However, prioritizing the less patrimonial, preventive bias, which had a result capable of achieving a specific execution, without being based on losses and damages.
Thus, with the evolution of collective law in a broad sense, the principles of access to judicial protection, effectiveness and procedural speed have become dogmas aimed at resolving mass conflicts, characteristic of today’s society. This means that the care given to discussions involving collective rights, of whatever kind, must necessarily focus on finding a more effective solution to these problems, which are increasingly evident and present in our daily lives.
In effect, it can be said that the effectiveness of the right finds correspondence with the constitutional principle of access to jurisdictional protection that, in the lesson of Luiz Guilherme Marinoni, has the following connotation:
(…) it means access to a fair process, the guarantee of impartial justice, which not only enables the effective and adequate participation of the parties in the judicial process, but also allows for the effective protection of rights, considering the different social positions and the specific situations of substantial law. Access to justice also means access to information and to legal counsel and to all alternative means of conflict resolution MARINONI, 1993, p.28).
Adopting the same syllogism, Luiz Rodrigues Wambier (s/d) regarding the immediate need to guarantee the effectiveness of judicial decisions:
(…) contemporaneously, the constitutional guarantee of access to judicial protection by the State means the right of access to effective judicial protection, that is, the right to obtain from the State judicial protection capable of promoting the realization of its commands, as foreseen in the material law.
As for the access to judicial protection, one notices that the collective lawsuit can be seen from several points of view. The first refers to the possibility of examination by the Judiciary of injuries or threats of injuries to rights without there being a determined owner, such as the so-called fundamental rights of the third generation or dimension.
Under another slant, as Antônio Gidi explains:
(…) examining the experience ofclass actions in North American law, class actions ensure access to judicial protection of claims that, otherwise, would hardly reach the Judiciary, such as cases in which the individual suffers a small financial loss, not feeling encouraged, by the expenditure of time and money, to resort to the judiciary (2007, p. 31).
Another point of extreme pragmatic importance concerns procedural economy, equally extraordinary to class actions. Although this principle allows the access to the Judiciary of wishes that, for their own peculiar reasons, would not be subject to examination, it enables several repetitive individual actions, under the same discussion, to be supplied by a single Class Action. It is evident that there is both an economic gain in containing expenses with access to justice and also that divergent interpretations on the same theme are avoided, helping greatly in the standardization of judicial decisions.
In light of this, in the realm of ideas, it becomes an easy task to conclude that the structure of the collective suit microsystem presents an immeasurable advance in the defense of diffuse, collective, and individual homogeneous rights or interests, serving to solve countless problems arising from a mass society, such as the one we live in.
However, what is the point of a cohesive, instrumental, effective and functional legal system, endowed with a fully satisfactory procedural law, if, in the practical aspect, of results, the collectivity does not see the complete fulfillment of the mandates contained in the sentence, generating distrust in the citizens who have suffered damages and, worse, the impunity of the person who caused the damage?
In this sense, without the pretension of exhausting the subject, the present study turns to the analysis of the principle of the device or of congruence, especially the technical concepts that allow concluding for its flexibilization or relativization when applied to collective demands, given that there is a much greater at stake, hierarchically superior if analyzed from the point of view of the final result.
4. The Application of the Principle of Congruence in Class Actions
Initially, in order to talk about the congruence principle specifically applied to collective actions, it is necessary to bring up the technical concept of sentence. Thus, as advocated by Marinoni, Arenhart and Mitidiero (2017), the sentence can be understood as the “act of the judge who, resolving or not the merits of the cause (arts. 203, 485 and 497), defines it, generating, as a rule, preclusion for the judge (art. 507, except for the cases of art. 495), also marking the end of the knowledge activity in the 1st level of jurisdiction”.
In other terms, the judicial decision is the result of the exercise of the right of action, constituting the most relevant judicial procedural act, to compose the dispute, capable of pacifying the conflict, which will do by declaring the right that already exists and forming the concrete norm of conduct, respecting the applicable principles, among them the principle of congruence (FARQUI, 2019).
Thus, it is relevant to note that there is no consensus among legal scholars and the judiciary as to the terminology to be used in the equivalence between the judgment and the elements that identify the action. However, given the technical origin of the term, the use of “congruence” has ended up being more adopted by both Brazilian and foreign doctrine, since it is related to geometry and, from this point on, we can see that its very wording refers to the idea of perfect correspondence. In this way, although this nomenclature is not expressly used in the Brazilian legal system, the most commonly used term will be adopted.
At its core, the principle of congruence finds its central guidelines in the principles of dispositive, adversarial, and demand. In such a way that, by virtue of the latter, in general terms, it will be the Judge’s responsibility to decide only on that which was put into court by the active party, acting as a boundary to the actions of the State Judge, avoiding that, once exorbitant his sphere of competence with the practice of discretionary acts in the private sphere, such magistrate ends up curtailing the individual liberty of those involved and moreover, ends up committing arbitrariness affecting every totalitarian/authoritarian regime.
On the other hand, it is beyond doubt that the duty of congruence is restricted only to decisions with merit resolution, but not its application to condemnatory injunctions. The duty of congruence may likewise reach declaratory, mandamus, constitutive, and executive decisions lato sensu. The mandatory correlation also covers the identifying elements of the action (and not only the claim), so that the sentence must keep a triple identity with the claim. Thus, the need for congruence reaches the objective (request and cause of action) and subjective (parties) elements (FARQUI, 2019).
As we have seen, the congruence required of a sentence must encompass all the elements of the dispute, that is, the parties, the cause of action, and the claim. As far as the objective of the present work is concerned, there is more focus on the application.
In effect, the sentence or decision on the merits must be handed down by the magistrate within the limits of the request, who is responsible for interpreting it logically and systematically, never in isolation, so that, in the end, the jurisdictional provision effectively meets the realization of the right (specific protection) without unduly interfering with the rights of the subject of the action. Thus, the principle of congruence is a duty that has as its main objective to avoid “ex officio” actions of the State-Judge and, on the other hand, it must necessarily always consider the correct understanding of what is being requested, so as not to incur in the denial of jurisdiction.
In other words, only the verdict or decision on the merits that does not meet the intermediate request, as well as the one that distances itself from the jurisdictional provision capable of resulting in the effective satisfaction of the right, will be incongruous.
This is not different from the understanding espoused by the Superior Court of Justice in its judgments, as can be seen in the following examples: a) AgRg in REsp 737.069/RJ, where it was evidenced that the decision that broadly interprets the request formulated by the parties does not violate articles 128 and 460 CPC, since the request is what is intended by the beginning of the process; likewise, b) in EDCl in REsp 1.460.403/PR, the STJ held that there is no violation of the principle of external congruence, when the logical-systematic interpretation of the pleading prevails; and, finally, c) in REsp 1.355.574/SE, which ruled as follows, emphasizing its jurisprudential position on the matter
According to the STJ case law, there is no offense to the principle of congruence or adherence when the judge promotes a logical-systematic interpretation of the claims made, even if not expressly formulated by the plaintiff. Thus, it is not possible to speak of extra petita provision, since the claim was granted as judicially requested, considering that, among the criteria used by the plaintiff to deduce the reparatory plea are the negligence of the aggressor agent, the recidivist practice and the inhibitory character of the penalty… (STJ, REsp 1355574/SE, Rel. Minister DIVA MALERBI, 2nd Panel, DJe 23/08/2016)
Having made these considerations, which are essential for a correct understanding of the principle of congruence, the lack of it, from the standpoint of traditional doctrine, will imply in an “extra petita”, “ultra petita” or “citra petita” sentence that, as a rule, will be null and void, given the existence of a substantial flaw.
Candido Rangel Dinamarco (2017) argues that such nullity is, as a general rule, relative: “in case of lack of correlation between the judgment and the demand, such substantial nullity is pronounced by the Court only if requested by the prejudiced party and to the extent necessary to observe the legal requirement of correlation.”
Well then, congruence, as applied to individual actions, also applies to collective actions, including public civil actions: “The collective action is also subject to the observance of the congruence principle, according to which the judge must decide the dispute within the limits of the request” (LEYSER, 2007).
Thus, Zavascki (2017) asserts that in public civil actions, the basis of the request will result, depending on the case, in the granting of general or specific judicial protection, liquid, illiquid, condemnatory, declaratory, constitutive mandamus or executive in front of the sentence that agrees with what was claimed.
Even though the principle of adherence is ingrained in our legal system, and may be applied both to individual lawsuits and to collective lawsuits, the importance of the rights protected here must be emphasized, given their nature. Collective actions are endowed with social relevance, even if presumed, which leads to the condition of unavailability of the right and, consequently, limits the freedom of the plaintiff when elaborating the motion.
Indeed, in the public civil action, the active legal entity must seek the measure that best protects the good life that it intends to protect, always respecting the priority order contained in the core of the creation of the Law of Public Civil Action, which consists of prevention, repair and, finally, as an extreme and conclusive measure, compensation – all this without discretion to dispose of the interest in litigation.
Thus, the Public Prosecutor’s Office cannot, in a public civil action, in the face of environmental damage, request monetary compensation as a substitute for the recomposition of the damage. This is different from what happens in individual actions, in which the plaintiff may prefer compensation over reparation.
Such elements lead to the conclusion that the:
In public civil actions, the judge has, even when a specific request is formulated, considering the unavoidable need to interpret the request in the light of the interest t that underlies the demand and before the whole of the postulation, greater freedom regarding the adoption of measures that prove to be relevant to the satisfaction of the right (ZAVASCKI, 2017, p. 39).
These elements lead not only to the already existing possibility in the legal system of accepting measures other than those requested in sentences and decisions on the merits when there is recognition of the enforceability of the obligation to do/not do and to give, but also to the possibility of flexibilizing this duty of congruence to the detriment of the effective practical result, based on the nature of the jurisdictional provision and on the so-called intermediate request, when necessary, so that the result in its most comprehensive form (fair and effective) may be reached.
Adriano Caldeira (2006) agrees with the same thought when he defends the possibility of relativizing the congruence principle, because “in class actions, it is possible to realize that such limits will inevitably become more flexible, allowing the judge to escape from those lines traced by the request originally presented by the plaintiff.
However, the prospect of achieving a more effective and fair guardianship, by no means, consists of granting full judicial freedom on the occasion of the delivery of sentences (merit) in public civil actions, because, as already discussed, the principle of congruence is also applied, and it is imperative, therefore, that the Judge is aware of the limits of the dispute, drawn by the claimant, including in relation to the request. However, “such limits may vary throughout the process, without this characterizing a null decision” (CALDEIRA, 2006, p.179).
Therefore, the judge when considering a judicial request in public civil actions should be aware that the demand will necessarily involve the full and effective protection of the threatened or injured collective right, leading, as a consequence, to the conclusion that the legitimate collective sought the most appropriate measure to satisfy the right at issue.It is mandatory to respect the order of preference among the concrete remedies (preventive, restorative, and compensatory) available in our legal system.
As an example, in the above context, when faced with a reported environmental damage, the active party can request mere indemnification, because he realizes that the damage has already been consolidated and that it is not credible to recompose the damaged area. However, if during the evidential cognition, new elements are identified (after the performance of technical expertise, for example, when it is found that part of the area has not yet been affected by the damage, despite its imminence, and that, even in relation to the affected area, recomposition may occur), lead to a different meritorious conclusion, without this being an affront to the principle of congruence, since the magistrate would be seeking the most correct decision for the concretion of the right in question.
In the above hypothesis, there is no obstacle for the judge to grant injunctive relief (prevention of damage) in addition to the obligation to do, consisting in the recomposition of the area already affected, relativizing, consequently, the initial request that sought mere compensation.
In this way, one cannot speak of incongruence, given the observance of the diffuse interest that was intended to be protected, with the adoption of more pertinent measures that guarantee, at the end of the process, the possibility of mitigating the damage caused, as presumed to be the legitimate claim of the active legal entity.
In other words, the Judge acts correctly when interpreting the claim in a systematic and logical way, with the correct imperative instrumental correspondence between its immediate and intermediate object, guaranteeing the effective result of the action, that is, fulfilling his role of delivering the Law in the most appropriate way for the exultation of the right put to the scrutiny of the judiciary.
Following the same syllogism, no other interpretation would fit the following exemplificative hypothesis: the collective plaintiff exposes some misleading or abusive advertising, evidencing the abusive practice and, during the course of the claim, demonstrates the harm to consumers and the natural need for its cessation, but, in the final claim, only pleads for collective moral damages. In such circumstances, there is no obstacle for the magistrate to issue a sentence that also orders obligations to do and not to do, precisely in order to remove the publicity and prevent its reproduction in the future.
Thus, as shown in the previous example, if the request is interpreted correctly, i.e., in accordance with what is being postulated and, considering the diffuse interest to be protected, there was a correct application of the Law while the measures that result from the judicial decision will allow reaching an effective protection, fully meeting the collective interests, provided that the principle of adversary proceedings is respected by the judge, when he puts the parties in debate about the measures that he deems necessary.
5. Concluding Remarks
The objective of this paper is to study the principle of congruence/adstriction and its relativization when applied to the Brazilian collective process, mainly to achieve the objectives of the “third wave” advocated by Mauro Cappelletti and Bryant Garth in the effective access to justice.
Starting from the theoretical premises of the mentioned authors who aim to allow concrete, real and substantial access to Justice in order to reach the necessary conclusions and effectively have fair judicial decisions, the study showed that the congruence principle, which, in turn, has immediate legal support in Articles 141 and 192 of Law n. 13.105/2015 (NCPC), deserves better analysis as to its applicability, under penalty of not achieving the desired practical result in class actions if the historical understanding, limiting, continues to prevail in our courts.
As a result, above all, of the principle of demand, the principle discussed here constitutes an important instrument in the fight against abuses in jurisdictional activity, which does not necessarily mean preventing more extensive interpretations to achieve effective access to justice.
Given the peculiarities of the application of the congruence principle in each concrete situation, as well as the necessary study of the sentences and decisions that determine obligations to do or not to do in certain situations of exception to the adstriction, only the sentence or decision on the merits that does not comply with the intermediate request and the one that distances itself from the jurisdictional provision capable of resulting in the effective satisfaction of the right will be inconsistent.
Thus, according to the provisions of Article 322, paragraph 2 of CPC-15: “The interpretation of the request will consider the set of postulation and will observe the principle of good faith”, leaving no more doubts as to the interpretation of the request systematically, considering what is being put to the scrutiny of the judiciary as a whole. Such thinking, logically, is much more plausible and effective when analyzing the context of collective claims in general.
Validly, one can affirm that the judge will act correctly when interpreting the claim in a systematic and logical way, using, for this purpose, the correct instrumental correspondence necessary between the immediate and mediated object of the request, thus guaranteeing the effective result of the action. As a result, the Judiciary finds the much sought-after effectiveness, a foundation of the constitutional principle of access to judicial protection.
On the other hand, the so-called micro-system of collective lawsuit, which finds its foundations in the solid lessons of Antonio Gidi, presents an immeasurable evolution in the defense of diffuse, collective, and individual homogeneous rights and interests.
In spite of the advances, especially in the collective area of homogeneous individual consumer rights, following the three “waves” of the movement of Mauro Cappelletti and Bryant Garth, culminating with the final concern of effective access to justice, there are numerous aspects that still need to be rethought.What good is a cohesive, instrumental, effective and functional legal system, endowed with a fully satisfactory procedural law, if, in the practical aspect, of results, the collectivity does not see the complete fulfillment of the commandments contained in the sentence, generating mistrust among citizens who have been injured and, worse, the stain of impunity for the perpetrator of the damage?
In order to arrive at possible answers, the application of the congruence principle in public civil actions requires a constant interpretative evolution in view of the greater effective objective sought by the plaintiff and, without losing sight of the constitutional guarantees and with express foundation in the supremacy of the interest object of the demand, even allow the Judge to adopt other jurisdictional measures different from the ones requested, including as to the nature, as well as to pronounce the result not expressly requested.
The proposed and necessary reinterpretation of the congruence principle is not exactly to distance oneself from the exordial request or to give arbitrary and/or random powers to the judge. The jurisdictional response must be limited to the collective or diffuse interest whose protection is sought and to the facts exposed by the lawful parties, in harmony with the real will of society and with the desired objective implication, without this consisting in the availability of the right that is under the scrutiny of the Judiciary.
From all of the above, the study of the principle of the device or of congruence, in particular the technical concepts that allow concluding for its flexibilization or relativization when applied to collective demands, leads to the conclusion, given the supremacy of the collective interest where there is a greater good at stake, hierarchically superior if analyzed from the aspect of the final result, that the correct interpretation of the request, that is, according to what is being postulated and, considering the diffuse interest to be protected, there is, therefore, the correct application of the Right while the measures resulting from the judicial decision will allow to achieve concretely an effective protection, thus fully meeting the interests, provided that, for that, all other procedural rights and guarantees affecting the parties are unconditionally respected.