Procedural delays and the civil liability of the state

Abstract

The enactment of the constitutional amendment nº 45/2004 included in the list of fundamental rights of the Federal Constitution the principle of reasonable duration of the process, aiming to achieve faster dispute resolutions in court. However, 13 years after the publication of the Amendment, reasonable duration of the process has been far from reality. Thus, in this paper, two directions were taken. First, the concept of the reasonable duration of the process was sought in the national literature and in comparative law. Next, we highlighted domestic and international laws, important doctrines and jurisprudence regarding the State's liability in the non-compliance of the principle of reasonable duration of the process; whilst also analyzing other thesis in the opposite direction. In order to demonstrate that the constitutional promise is still a distant reality in Brazil, we investigated data that made it possible to estimate the average length of time needed to res judicata at court trials, comparing this data with the data from other countries. In conclusion, we verified that the average time length for the first instance in the Brazilian Judiciary is a total of 925 days, which is contrary to European nations: in France the average is 128 days, Italy is 200 days, Germany is 220 days, Spain is 242 days and Portugal is 414 days.