Lifetime review: The illegal path of the STF – 03/26/2024 – Rômulo Saraiva

It is not common for retirees to be interested in watching the boring judgments of the Federal Supreme Court on television, but the review of their entire lives attracted the attention of thousands of people at the session held recently in Brasília. They hoped to witness a coherent and fair trial, confirming the understanding of the STF itself.

After all, the constitutional court had already decided in 2022 and 2023 the feasibility of the review. There were some adjustments pending in the trial, but nothing — most Brazilians thought — that would completely threaten the case.

That’s not what happened. The ministers built a procedural path and an understanding that practically ruins the review.

What not everyone realized, in the intricate trial broadcast over the internet, YouTube and TV Justiça throughout the country, was the legal maneuver used by some STF ministers to settle the case.

In addition to using questionable numbers to justify the impact of the R$480 billion review (in 2020, this number was R$46.4 billion; in 2023, it increased to R$360 billion) and the old argument of the sustainability of the social security system , procedural engineering subtly took place that resulted in the possibility of the new STF ministers re-discussing the merits of the demand.

With the old composition of ministers, the lifetime review had its viability recognized in 2022 and 2023 as a retiree’s right.

The arrival of four new ministers, between the years 2020 and today, these appointed to the position by the President of the Republic, curiously, the majority of them took a stand against the fact that the Federal Public Administration (in this case, the INSS as an autarchy) bears the cost of a lifetime review.

From the moment the new STF ministers were able to give their opinion on the merits of the whole life review, their positions inevitably unbalanced the quorum in the vote to the detriment of retirees.

The path they used to execute this undertaking was to piggyback on direct unconstitutionality actions n. 2110 and 2111, whose merits discussion, although it had begun, was not fully concluded.

There were still some ministers to complete the judgment on the merits of the aforementioned ADi’s, an excellent opportunity for the newcomers of the STF to cast their votes not only on them, but mainly on the whole life review, now added to the ADi’s case.

Mysteriously, from June 2022 to November 2023, the STF did not arouse the slightest interest in bringing together the actions for joint judgment of ADi’s 2110 and 2111 with RE 1,276,977. As of December 2023, out of nowhere the actions seem to be brought together, even though there is a legal provision (Law 13,105/2015, art. 55, § 1) that there cannot be this meeting, if there is already a process with the merits decided.

ADi’s 2110 and 2011 arrived at the STF in 1999 and spent a long time on the court shelves. Together, they seek to recognize the unconstitutionality of several articles of Law 9,876/99, which is also the same law that attracts the discussion of whole life review, but for different reasons.

The whole life review understands that it is possible for Law 9,876/99 to continue to exist, but that the retiree can choose between the most favorable rule. The ADi’s seek the unconstitutionality of several articles of Law 9,876/99 for those who are banned from the universe of laws.

There is, therefore, affinity between the themes of ADi’s 2110 and 2111 and extraordinary resource 1,276,977 (Theme 1102 – whole life review). The STF can, and should, bring together cases in which there is thematic affinity to optimize joint judgment.

The problem is that this must occur before discussing the merits of each action. When the thesis of a lifetime reached the Supreme Court, in 2022, it had already been 23 years that the ADi’s had been waiting for the STF to resolve them. The fact is that throughout this time the actions were processed separately and autonomously. And no one was ever interested in bringing them together. After Minister Cristiano Zanin’s request for prominence in ADi’s 2110 and 2111, and seen in RE 1,276,977, from then on the path of actions is unified.

It highlights that the whole life review had its merits analyzed and judged, without mentioning a single line of ADi’s 2110 and 2111.

The interest and sudden move to bring the matters together caused a lot of surprise in the legal community. Including those who were watching the trial on TV and didn’t understand anything with the expansion of subjects (maternity pay, social security factor, etc.), used to seeing the debate only on the review.

There are some decisions by STF ministers (AgR in HC 156.532 and HC 186.869) arguing that cases should not be brought together in different phases and, especially, if one of them already has a judgment on the merits.

If the core of the whole life review had already been decided by the STF, it could not be discussed again. New ministers can, and should, participate, but from there and at the stage the process is at. As there is an INSS appeal pending judgment, the court will look into the points of this appeal, which, by the way, would not be capable of generating such a turnaround.

In addition to this procedural engineering, there is another illegality in the wake of the whole life review. Federal law no. 13,105/2015, Code of Civil Procedure, is explicit in determining that “related lawsuits will be brought together for a joint decision, unless one of them has already been sentenced”.

The whole life review had already been decided by the STF and could not be combined with ADi’s 2110 and 2111. The Supreme Court solemnly ignored the federal law.

Minister Alexandre de Moraes, when expressing his vote and asking whether the STF will actually endorse the practice of using ADi’s as an instrument to “be able to review what has already been defined in the RE [recurso extraordinário 1.276.977]”, failed to sensitize his peers.

Most ministers ignored the fact of the legal prohibition, which prohibits bringing together processes when one of them has already decided the issue. By ignoring this aspect, the ministers acted illegally by bringing together processes in different phases and with the merits already resolved.

They also disrespected the opinion of retired STF ministers, who had their votes overridden by newcomers. The court, by using a questionable procedure of re-discussing the merits of the whole life review, disrespects retirees indirectly as well as directly. This is because, when the President of the Court, Minister Luís Roberto Barroso, at the end of the trial session, he still made the unfortunate comment that retired people should not always win.