18/03/2013
Supreme knocks payment scheme of writ Autor: Revista Consultor Jurídico
The Supreme Court overturned, on trial on Thursday (14/3), Constitutional Amendment 62/2009, known as Amendment of default, which changed the payment scheme of writ - government bonds recognized by final judgment. It is estimated that about 1 million have creditors more than $ 90 billion of receivables states and municipalities. On Wednesday (13/3), ministers had already overthrown the correction index for writ of savings.
The law in question provides for payment within 15 years, auctions for prioritizing the lender willing to give more discount and reserve in the budget of states and municipalities between 1% and 2% for discharge of debts.
The outcome of the trial was concluded by OAB, author of one of the Direct Actions of Unconstitutionality who questioned the amendment. The entity called the decision as a victory of citizenship. "With this decision, the least we can expect is that the final judicial decisions are respected by the public," said Marcus Vinicius Coêlho Furtado, president of the Federal Bar Association.
The votes
For most ministers, can not keep the new regime because it harms the people, allowing the subdivision and the reduction of a debt that should be paid in full and immediately, within one year of issuance of the precatory. There was also criticism of the involvement of the judicial authority, since the decisions cease to be fully met.
Now, Congress needs to find another outlet. With the overthrow of the amendment, again enforce the rules of the 1988 Constitution. "It is not about choosing between one and the other evil regime, we have to find other solutions," the minister summed Rosa Weber. The previous rule provided for the payment immediately, but was often breached by states and municipalities, who did not suffer any sanction.
The Supreme began reviewing the case in 2011, with the vote of the rapporteur, Justice Carlos Ayres Britto (retired). He criticized the mismanagement of public funds, noting that many states and municipalities spend more on advertising than with the payment of writ. Upon request of view, the Minister Luiz Fux returned the case this year as the rapporteur.
"The creativity of rulers must work according to the Constitution, no citizen of the dump shoulders the burden of a problem that was never yours," said Fux. He advocated alternative ways to solve the debt as loan applications for the Union followed the understanding of the ministers Britto Rosa Weber, Carmen Lucia, Celso de Mello and the court's president, Joaquim Barbosa.
The divergence was still open last week by Minister Gilmar Mendes. He understood that the new rules were a "victory" because states and municipalities were able to pay off the debts. The minister theoretical Zavascki, although the new regime is not ideal, it is an improvement over the previous one, which did not put in the budget reserve percentage or punishments for those who did not meet the payments. Dias Toffoli also followed the divergence.
The Minister Marco Aurelio agreed with some changes in the law, such as the adoption of a 15-year term for the special scheme. However, he disagreed with the special rules that apply to precatórios win. Also positioned itself contrary to the auction method, which it called a "mischief" with creditors. For the minister, the only possible payment rule is the chronological order. The minister Ricardo Lewandowski also said that special arrangements should not exceed 15 years (and only precatory already due), but made no objection to the auction system.
The trial
During the trial, accepting a point of order made by Justice Marco Aurelio, the Supreme Court divided the trial seam two parts: one relating to Article 100 of the Federal Constitution, which establishes general rules on writ, and another part of the trial for the Article 97 the Temporary Constitutional Provisions Act, which establishes the special payment.
As regards Article 100, the ministers deemed unconstitutional in part paragraphs 2, 9, 10 and 12, following the vote of Justice Rapporteur, Ayres Britto (retired). In paragraph 2, was held unconstitutional the words "the date of dispatch of precatory" which restricts the preferred payment to those who have already completed 60 years when the expedition of judicial title.
Following the understanding shown by the rapporteur at the beginning of the trial, it would mean that a creditor has 80 years could get no preference, while another aged 60 recently completed quickly could be contemplated. According to the vote of Justice Ricardo Lewandowski, "delete the preference that the sexagenarian full age throughout the process and also equality offends the dignity of the human person and the principle of protection to the elderly, constitutionally guaranteed."
Paragraphs 9 and 10 also were declared unconstitutional by a majority vote, alleging breach of the principle of equality. The provisions establishing the rule of compensation, upon payment of the writ, the debts that the private lender has with the government. The rule was deemed unconstitutional because it adds a prerogative of the state of accounts between credits and debits that is not guaranteed between the private sectors.
As to paragraph 12, was deemed unconstitutional expression establishing the rate of savings as rate restatement of precatory, be understood for what it is not enough to recover the inflationary losses. The Minister Marco Aurelio in his vote, said the constitutionality of another section of the paragraph, establishing the rule that the rate of return adopted should be the same for all types of writ, whatever the nature - or precatory food source tax - since the beginning isonomic not entail differential treatment rates for each case. With Brazil and Information Agency of the Press Council of the Federal Bar Association.
