A desproporcionalidade entre a razoável duração do processo e a ampla defesa no efeito suspensivo do recurso de apelação

Abstract

The Constitutional Amendment nº 45/2004 sought to consolidate the ideals of a fast, effective and isonomic process, explicitly attributing the status of "Fundamental Right" to the Reasonable Duration of Process. However, the enactment of the "Novo Código de Processo Civil" hasn't brought about any significant change to the main form of appel in the brazilian civil judicial process, the "apelação". Article nº 4 of the "Novo CPC" makes explicit that the concretization of the right to Reasonable Duration of Process encompasses not only the cognitve phase, but also the executive phase of process. In other words, due process must be effective and last for as long as reasonably necessary, without undue dilations. In contrast, the "apelação", appeal used against any judicial sentence, is ingrained with automatic suspensive effect as a rule, makes it so sentences do not produce their regular effects when challenged, save for scarce legal exceptions. The maintenance of the sunspensive effect "ope legis" in the "apelação", in Brazil, goes in against the international tendency of recovering the prestige and effectiveness of first degree judicial decisions. In many countries, the aforementioned suspensive effect isn't the rule, but the exception, as can be observed in the German, Italian and Portuguese legal systems. This paper assesses the disproportionality in the solution given by the Legislator to the conflict between two Fundamental Rights established in the Brazilian Constitution, the right to a Reasonable Duration of Process (art. 5th, LXXVIII, CF) and the right to Ample Defense (art. 5th, LV, CF) with a focus on the confrontation between the double degree of jurisdiction and the efectiveness of first degree judicial decisions, based primarily on the Theory of Fundamental Rights of Robert Alexy and some of the contributions made to it by Virgílio Afonso da Silva.