TJ orders government and city halls to pay fees to the Public Defender’s Office – Cidades

2023-08-27 20:43:00

STF pointed out that Ombudsmen in the Country do not have resources to match the role they play

Defender in MS has its own budget; addition after decision of the STF should be used for structure and qualification (Photo: Arquivo/ Alex Machado)

The Public Defender’s Office in Mato Grosso do Sul started to receive fees in the actions in which it wins in its requests against the public power. Even though it is a member of the State Administration and has its own budget, it benefits from a judgment by the STF (Federal Supreme Court) that extended its effects to the institution throughout the country, pointing out that the Ombudsman serves the most vulnerable groups but “the resources allocated by the public coffers are not enough to overcome the organ’s structuring problems and the deficit of public defenders”.

There were states where the service was unstructured and offered through agreements with the OAB (Brazilian Bar Association) for legal assistance to those who could not pay. In 2014, a constitutional amendment established an eight-year period for states to structure services, prioritizing regions with a greater volume of residents and situations of exclusion.

At the end of June, the STF concluded the judgment of an extraordinary appeal from 2018, from Rio de Janeiro, in which the so-called general repercussion was recognized, a judgment technique in which a recurring matter is analyzed for the outcome to be applied in similar cases. During the period, the theme was on hold. With the decision, even though the decision has not yet become final, the vice-president of the TJMS (Court of Justice), Dorival Pavan, determined that the Department of Appeals of the Court should return all pending cases involving the issue of fees to the Public Defender’s Office. for the rapporteur judges to carry out the “reexamination they deem appropriate”. He also stated that, after the judgment, whether or not there was retraction, the processes should return to the vice-presidency.

The consequence is that, for weeks now, many decisions have been published on a daily basis recognizing the right of the Ombudsman to receive fees in actions in which the party it represented won, even when the losing party is the State Government, which transfers the resources to the institution , or prefectures. They follow the content of what the STF decided, recognizing the right to fees, but that the amount cannot be allocated to apportionment among the members, only for the structuring of services. In the case analyzed by the Supreme Court, it was set at 10% of the amount in dispute.

In actions already released by the Civil Chambers of the TJ, there are several demands to guarantee health services, such as surgeries; this is the case of a payment to the Ombudsman fixed at R$ 1,200.00, to be apportioned between the State and the Municipality. Actions to ensure health services are usually against the two spheres of Administration. In analyzing an appeal, the justices decided that the funds “should be allocated to the Special Fund for the Improvement and Development of Public Defender Activities, as provided for in art. 4th, inc. XXI, of LC nº80/94, in equipping and training its members and servants”.

There are situations in which the fees had been previously denied, with the understanding that it would not be appropriate, since the State already pays for the services of the Ombudsman, which is part of its structure.

As the matter is not yet closed, with a pending appeal expected to be analyzed in early September, there are some TJ judges who decided not to take the matter to the Civil Chamber for analysis, keeping the trial suspended. The argument is that the STF can modulate effects, that is, define how the extent of application of the judgment will be.

The action attracted the attention of many States and representative bodies. There were 26 qualifications of interested parties to follow the debate, as amicus curiae, including the Government of MS, through the State Attorney General.

Own budget- For next year, the Ombudsman’s Office should have revenues from state coffers in the limit of R$ 322.8 million, according to the text approved in the Budgetary Guidelines Law. In addition to it, the Legislative Assembly (budget proposal limit of BRL 484.1 million), the Court of Auditors (BRL 392.9 million), the Public Ministry (BRL 672.8 million) and the Judiciary also have financial autonomy. (R$ 1.2 billion), which will receive transfers from the State Executive. On the institution’s website, it is possible to verify that there are five classes of defenders, with salaries between R$ 30.6 thousand and R$ 37.5 thousand.

The Public Defender’s Office informed, via the press office, that as the decision is recent, there is still no estimate of the amount to be received in fees in recent years. The judgment of the STF was classified as a correction of an old interpretation, which recognizes the autonomy of the institution. The PGE informed that it believes in a collegiate action by the Prosecutors contesting the outcome of the analysis.