CNJ Resolution 318 and the functioning of the Judiciary during quarantine.

Resolution 313/2020
On March 19th, eight days after the WHO declared the Covid-19 pandemic, the National Council of Justice issued Resolution 313, intended to regulate the functioning of the Judiciary and matters pertaining to the practice of procedural acts during this period of profound abnormality, with a validity period until April 30, 2020.

The decision proved to be correct. While the need for the physical demobilization of court buildings, law offices, and other establishments was pressing, the Judiciary and access to justice could not be allowed to stop, as it is a fundamental service.

At that time, it was already clear that Brazil would suffer the impacts of the pandemic as much as Asian and European countries had been suffering. In light of this, several courts were already beginning to close down and suspend procedural acts and deadlines. Since such movements would naturally occur in a non-uniform manner, the CNJ (National Council of Justice) set out to perform precisely one of its functions—that of seeking uniformity, as much as possible and observing local peculiarities, in the administration of justice.

Resolution 313 immediately suspended all procedural deadlines nationwide, in all jurisdictional bodies (except for the Supreme Federal Court, which is not subject to the "Jurisdiction" of the CNJ).

Furthermore, the Resolution created the interesting concept of "Extraordinary Duty Roster," which, in short, consists of the continued work of judges and staff full-time through teleworking mechanisms. It also stipulated that the courts guarantee the performance of certain essential activities (listed within the Resolution) as well as the consideration of urgent matters.

In this way, the CNJ ruled out the possibility of the courts simply closing their doors and adopting the traditional on-call system, similar to that practiced at night or on non-working days.

Naturally, given the prohibition of any in-person activity, all hearings and trial sessions that were not conducted virtually were also suspended.

Resolution 314/2020
While the period of total suspension of deadlines proved indispensable at first, over time lawyers, judges, court staff, and other actors in the justice system have become increasingly proficient in remote work and the other limitations imposed by the pandemic. On the other hand, prolonged suspension of deadlines leads to a growing backlog of cases and appeals in the courts.

Given the approaching expiration date, the CNJ issued a new Resolution (314), which extended Resolution 313 with modifications until May 15, 2020.

The changes were, in summary, as follows: (i) from May 4, 2020, the deadlines for electronic proceedings would resume (approximately 80% of proceedings in Brazil are currently conducted electronically); (ii) the Courts should resume holding hearings and trial sessions using videoconferencing mechanisms, for which a free online platform was made available for use by all jurisdictional bodies in the country.

Resolution 314/2020 also included a very important exception, especially for lawyers: in cases of procedural acts essential to full defense and due process (such as responses and objections to enforcement), as well as those requiring prior collection of evidence, it is sufficient for the lawyer to file a petition in the case file informing of the impossibility of fully carrying out such an act, so that the deadline is suspended again, without needing to wait for the judge's decision.

Therefore, by virtue of Resolution 314, the procedural deadlines for electronic proceedings resumed from the moment they were suspended (March 19, 2020), and the days remaining until their completion should be counted from May 4, 2020 (Article 221 of the CPC and Article 3, § 1 of the Resolution). Naturally, procedural deadlines triggered by notifications made within the suspension period would begin their calculation on May 4, 2020.

Resolution 318/2020
Well then. Given the changing pandemic scenario in the country, with the tightening of strict social distancing measures already decreed in some states of the federation (and the possibility of this happening in others), the CNJ issued Resolution 318 this Thursday (May 7th), maintaining the course of deadlines that had already been running since the 4th, but taking into account the new reality of lockdown that has been observed in some parts of the country.

In summary, the newest resolution determines: (i) the extension of the validity of Resolutions 313 and 314 until May 31, with the running of deadlines in electronic proceedings from May 4, 2020; (ii) a new suspension of deadlines in electronic proceedings if a state authority determines restrictive measures on the movement of people (the so-called "lockdown"), this suspension being valid for the jurisdictional bodies covered by that federative unit); (iii) even in the absence of a formal lockdown decree by a state authority (such as municipal authorities, for example), the Court may request the CNJ to suspend deadlines at the state or local level, demonstrating that, even so, there is a situation that prevents the "free exercise of regular forensic activities".

On the other hand, the resolution did not change anything regarding the determination that hearings and trial sessions should continue to be held via videoconference.

The Framework of the 3 Norms
Note that the three resolutions remain in effect, forming a single set of regulations valid until May 31st. From a systematic interpretation of this set of regulations, the following rules, in effect at the time this article was written, can be fundamentally extracted:

(a) Deadlines in physical proceedings remain suspended from March 19th to May 31st; (b) As a rule, deadlines in electronic proceedings (more than 80% of proceedings in the country) continue to run from May 4th, not being suspended or interrupted by Resolution 318/2020; the possibility of filing a petition informing the Court of the impossibility of performing the act, due to the need for prior collection of evidence, also remains in effect; (c) As an exception, deadlines will not run in electronic proceedings that are processed in a jurisdictional body of a state of the Federation that has decreed restrictive measures on the circulation of people (“lockdown”), during the entire period of validity of such determination; even in the absence of a formal lockdown decree by a state authority (such as municipal authorities, for example), the Court may request the CNJ to suspend the deadlines. (d) Hearings and trial sessions should continue to be held by videoconference whenever possible.

As the actual situation changes, it is natural that other acts will emerge, issued by the CNJ (National Council of Justice) or the Courts, to adapt the rules to the reality, which changes every day. But certainly this is the time, more than ever, for all procedural actors to act in the strictest cooperation and mutual understanding, with empathy and solidarity, among judges, lawyers, members of the Public Prosecutor's Office, public defenders, and all members of the justice system, so that we can overcome together this period of unthinkable abnormality in which we live.

By Henrique Ávila and Guilherme Peres de Oliveira

Source: Conjur