Review of a lifetime: what are next in the STF? – 08/17/2023 – Market

The review of the entire life of the INSS (National Social Security Institute) may take up to three months to be judged again by the STF (Federal Supreme Court) after Minister Cristiano Zanin, who took up a chair at the court on August 3, asked for a review of the process to better analyze the topic.

In the lifetime review, retirees ask to include in the calculation of their benefit amounts paid in other currencies, and not just in reais, which can increase social security income. The correction was approved by the STF in December last year, by 6 votes to 5.

According to a rule approved in December 2022 at the Supreme Court, the minister has up to 90 days to present his vote on the INSS declaration embargoes. Embargoes are a kind of appeal in which one of the parties asks for clarifications regarding what was decided.

If Zanin does not return the process within the deadline, the rule says that the topic must be guided automatically. With that, the judgment will be held again in the virtual plenary, where it was being held until the request for view this Tuesday (15).

The initial forecast for the conclusion of this new trial, which had begun on August 11 —the day lawyers are celebrated and is a public holiday at the Supreme Court— was to end at 11:59 pm on the 21st. one week.

Lawyer Fernando Gonçalves Dias, from Gonçalves Dias Sociedade de Advogados, classifies Zanin’s request for an examination as “indispensable”, since he is newly sworn in and does not know the process.

“The request for review is coherent. The minister has just arrived at the supreme court. He does not know the process and it cannot be assumed that he knew it or that this knowledge was necessary to deliver his vote. You have to know the process and what it is included in the case file. So the request for review is completely coherent and essential for him to vote in accordance with his conscience and with what he understands from the process and the decision already handed down in December 2022.”

Lawyer Gisele Kravchychyn, director of judicial activity at the IBDP (Brazilian Institute of Social Security Law) and defender of the thesis that reached the Supreme Court, says that the postponement brings a certain frustration to retirees, who have been waiting for some years for the conclusion, but claims to be It is a minister’s right to make such a request.

“It was an early request for a view, but that is within his right. And there was no extension of the matter.”

What can happen with the review

1 – New view request

Lawyer Adriane Bramante, president of the IBDP, says that after Zanin’s vote is returned, any other minister can ask for a review, causing a new stoppage. However, everyone who is there already knows the thesis and this request would not be necessary. However, the request is a right of ministers to better analyze the topic before giving their vote.

2 – Highlight request

After the resumption of the trial, the ministers can, in addition to requesting a view, make a prominent request to take the discussion to the physical plenary of the Supreme Court. This was the maneuver used by Minister Kássio Nunes Marques last year, after the review already had 6 votes to 5 in plenary, to make the trial start over from scratch.

Nunes Marques presented a prominent request a few minutes before the deadline in the virtual plenary, even though he had already cast his vote —against the revision— and the position of all the others had already been registered.

3 – Resumption of the trial and end of the process

The process can be resumed before the 90 days and the trial can start again. In this case, it is necessary to wait for the theme to be discussed again. Ministers cast their votes and, at the end of a week, the case comes to an end. However, the final decision taken still needs to be published.

4 – End of trial and filing of new appeal

After the trial is completed and the judgment published, both the INSS and the retiree’s defense may file new motions for clarification to clarify any decision that has remained unclear.

“There is no limit for the submission of embargoes. As long as there is obscurity, contradiction or omission, embargoes are allowed. The new embargoes, however, have to be limited to the unappreciated, obscure or contradictory point of the previous decision.”

If the embargo does not comply with these rules and is only intended to extend the review payment even further, it can be denied monocratically — by a single minister.

Who is entitled to a lifetime review?

The insured person who retired in the last ten years is entitled to a review of his or her entire life, as long as it is in accordance with the rules prior to the Social Security reform, instituted by amendment 103, on November 13, 2019. been granted based on the rules of Law 9,876, of 1999.

The correction, however, is limited and only compensates for those who had high wages before the start of the Real Plan. Workers who earn less will not have an advantage.

In the judgment, which was published in April, the thesis defined by the ministers was confirmed, which says that “the insured person who implemented the conditions for the social security benefit after the validity of Law 9,876, of 26.11.1999, and before the validity of the new constitutional rules , introduced by EC 103/2019, has the right to opt for the definitive rule, if it is more favorable”.

ACTIONS ARE STOPPED IN JUSTICE

The processes that deal with the review of the whole life have been stopped in the Judiciary throughout the country since the end of July, after the decision of Minister Alexandre de Moraes, who accepted part of the request of the AGU (Attorney General of the Union) in the motion for clarification. The minister determined the suspension until the new trial is completed. The INSS tries to limit the scope of the decision.

Moraes, rapporteur of the case, presented his opinion and limited the application of the revision. For the minister, extinct benefits and those that have already become final should be excluded from the review. Also, the date marking the correction is December 1, 2022.

He denied, however, the inclusion of the minimum divisor in the calculation and the INSS request that the reference date be April 13, when the judgment was published, and reaffirmed that the deadline for requesting correction is up to ten years.