Desertion of the Instance: STJ Imposes Proactive Action by Courts

 The Superior Court of Justice (Supremo Tribunal de Justiça) has established significant case law regarding the desertion of the instance under Article 281, no. 1, of the Civil Procedure Code (CPC), clarifying the court’s role in managing the process and the necessity to ensure access to justice for economically vulnerable parties.

 

The Case
The case originated from an action in which the Plaintiff (A.) was receiving legal aid and lacked the means to cover the costs of the bailiff (AE) for serving the Defendants (RR.). In light of this, the Plaintiff requested the court to have the service carried out by a judicial officer.

However, the court immediately denied the request without providing an alternative to ensure the progress of the case, later declaring the desertion of the instance due to lack of procedural advancement.

 

Key Considerations of the STJ
Judge Duties regarding Case Management – The court should have acted ex officio to remove the obstacles preventing the service of the Defendants (RR.), thereby promoting the regular progression of the case.

Legal Aid Regime – The right to be exempted from procedural costs includes the bailiff’s fees, justifying the service being carried out without requiring prepayment from the Plaintiff (A.).

Restrictive Interpretation of Instance Desertion – The Plaintiff’s lack of action cannot be classified as negligence when it results from the court’s failure to perform the necessary acts for the regular progression of the case, particularly regarding the service of the Defendants. The ex officio nature of these procedural steps, which the court failed to consider, coupled with the ambiguity surrounding the order containing the warning under Article 281, no. 1, of the Civil Procedure Code – which was never properly clarified despite the possibility of conducting a preliminary hearing with the interested party, as should have occurred – prevents the Plaintiff’s conduct from being deemed relevant negligence for the application of the desertion of the instance regime.

 

Final Decision
The STJ concluded that the legal requirements for the desertion of the instance were not met.

Thus, the STJ established the following case law uniformity:

I – The judicial decision declaring the desertion of the instance under Article 281, no. 1, of the Civil Procedure Code presupposes inaction in the procedural progress, with the case being stalled for more than six consecutive months, exclusively attributable to the party burdened with this responsibility, and the missing act does not fall within the ex officio powers/duties of the court.

II – When the judge decides to declare the instance deserted, the principle of the adversarial process must be observed, in accordance with Article 3, no. 3, of the Civil Procedure Code, with a corresponding preliminary hearing for the party, unless it was, or should have been, clearly known to the party, by virtue of the applicable legal regime or appropriate notification, that the process would await the procedural action that was their responsibility under the penalty foreseen in Article 281, no. 1, of the Civil Procedure Code.

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