Principle of contradictory and broad defense: Applicability of the constitutional provision.

By: Thaís Andrade | Publish on September 3th of 2019

The principle of contradictory and broad defense is supported by the 1988 Constitution – LV, of art. 5th.

This principle is the basis for guaranteeing the due legal process in the country’s justice system (CF, art. 5, LIV), being one of the most important and guiding principles of our Constitution, second only to the principle of Dignity of the human person, in which our entire legal system is supported.

A curious fact is that, long before the express mention in the 1988 Constitution, the contradictory principle had already been mentioned and speculated in other Brazilian constitutional provisions, however, at that time there was still no full conviction of the size of the scope and applicability of the same.

The Federal Constitution of 1988 came to clarify this – and several other issues – that were not yet clear in the Brazilian legal system.

In general, the constitutional provision guarantees the litigating parties the right to accompany, to manifest themselves, and to have full right to defense in all phases, instances and Courts, conclusively prohibiting the restriction of defense.

Respect for these principles ensures that the procedural acts practiced in the course of the process receive the efforts of both parties in order to elucidate and clarify points that may, at a certain moment, have been hidden, reaching the long-dreamed search for the reality of the facts.

As can be seen, the importance of these constitutional principles, in addition to enshrining respect for laws and procedural rules, also brings great credibility to the Brazilian judiciary in the search for justice.

It is worth bringing up, my recent experience in the city of Brasilia, where I had the opportunity to support the following thesis: Preliminary nullity of sentence by curbing defense.

In summary, the entire thesis was constituted on the basis of such principles and the right of expression of the company that had been curtailed. In the case at hand, the procedural defect was evidenced in the first instance, when, once a deadline for Final Reasons was granted, it was not respected by the court, which decided to judge the process before the respective period for the parties ended.

The case records were sent to the second instance, which did not judge the issue of addiction in a favorable way to the company, and it was only at the third instance level that it was possible to obtain the due judgment and return of the case to the origin so that the right to the adversary, wide defense and due legal process could be fulfilled.

It is essential to say how important such a decision had been, since the judgment of the case in the higher court demonstrated that regardless of the degree of relevance of the procedural defect (Final Reasons, as the name says, are merely final allegations of the parties before the final judgment of the deal, an opportunity to, bring up, some fact that was evident in the hearing or in the course of the process) is salutary to the process to give the parties all opportunities to exercise the adversary.

It is salutary that the defendant has the right of defense, which includes the right to speak up and be heard. Once this opportunity is provided, the principle is satisfied, even though the parties remain inactive in view of this prerogative.

The rationale of the principles in question is, to always give notoriety of all the acts practiced in the records to the parties, guaranteeing the effectiveness of justice when the conclusion is made and guaranteeing the credibility of the Brazilian judicial system.