The amicus curiae, or friend of the court, constitutes a type of atypical third-party intervention, essentially focused on Civil and Constitutional Procedural Law, whose primary purpose is the democratization of judicial debate and the provision of specialized technical, factual, or legal subsidies to improve the provision of justice in cases of significant social repercussion.
Concept and Foundation
The amicus curiae institute transcends the traditional figure of third-party intervention. While the latter aims to defend a specific legal interest, the amicus curiae acts as a collaborator of the judiciary. Its legal nature is that of an atypical intervention, with a pluralistic and democratic character, allowing subjects endowed with adequate representativeness and specialized knowledge to contribute to the formation of the magistrate's or court's conviction on issues that transcend the subjective interest of the original parties.
Modern doctrine, led by authors such as Fredie Didier Jr. and Luiz Guilherme Marinoni, has consolidated the understanding that the admission of the amicus curiae does not confer upon the intervenor the position of a party, but rather that of an assistant to the court, whose scope is to provide democratic legitimacy to the judicial decision through the expansion of substantial adversarial proceedings.
Historical Origin and Evolution
The genesis of the institute dates back to Roman Law, later consolidating itself in the Common Law system, notably in Anglo-Saxon Law, where the figure of the amicus curiae allowed interested third parties to offer impartial information on points of law. In the Brazilian legal system, the institute gained modern contours starting with Law No. 9.868/1999, which provides for the process and judgment of direct actions of unconstitutionality and declaratory actions of constitutionality, and was solidified in the 2015 Code of Civil Procedure (CPC/15) as a procedural management tool in cases of collective magnitude.
Legal Provision and Procedural Framework
The current civil procedural code codified the institute in articles 138 to 138-A of the CPC/2015. The provision establishes cumulative requirements for admission: the relevance of the matter, the specificity of the subject matter of the lawsuit, or the social repercussion of the controversy. The decision that admits the entry is unappealable, except for the hypothesis of an internal interlocutory appeal in the event of denial, according to the understanding consolidated by the Superior Court of Justice.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts, notably the Supreme Federal Court (STF), has given an extensive interpretation to the institute. Within the scope of concentrated control of constitutionality, the STF, through its Internal Regulations (art. 7, § 2), admits the intervention of entities that demonstrate adequate representativeness. Recently, the STF has guided the performance of the amicus curiae to avoid the distortion of the figure, requiring the applicant to prove its thematic relevance to the object of the lawsuit, under penalty of denial due to lack of substantial legitimacy.
In the Superior Court of Justice (STJ), the application of art. 138 of the CPC is frequent in judgments of Repetitive Special Appeals (Repetitive Theme), where the presence of sectoral entities is fundamental for delimiting the scope of binding precedents.
Related Principles and Doctrinal Divergences
The institute is intrinsically linked to the principle of substantial adversarial proceedings and the principle of procedural cooperation. The doctrinal divergence lies, mainly, in the extent of the procedural powers of the amicus curiae. While part of the doctrine defends the possibility of filing appeals (such as motions for clarification), another, more restrictive current maintains that the performance should be limited to the presentation of memorials and oral arguments, under penalty of subverting the equality of arms and due process of law.
Contemporary Relevance and Impacts
In a scenario of judicialization of politics and the proliferation of decisions with binding effect (precedents), the amicus curiae acts as a safety valve for the democratic deficit. It allows organized civil society, class associations, and research institutes to insert technical elements into the process that would not be collected by traditional evidentiary means, providing greater argumentative density and democratic legitimacy to the final judicial ruling.
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, art. 103, § 2.
- Law No. 13.105/2015 (Code of Civil Procedure), arts. 138 and 138-A.
- Law No. 9.868/1999 (Process and Judgment of ADI and ADC), art. 7, § 2.
- STF, ADI 3.460/DF, Rapporteur Justice Gilmar Mendes: Consolidation of the need for adequate representativeness for the admission of the amicus curiae.
- STJ, Special Court, AgInt in REsp 1.846.126/SP: Understanding regarding the unappealability of the decision that admits the amicus curiae.
- Internal Regulations of the Supreme Federal Court, art. 7, § 2.
