A responsabilidade civil do estado em caso de dano decorrente da morosidade e do erro na prestação jurisdicional.

Abstract

This monographic work intends to analyze the existence of civil responsability in cases which delays in the procedural course and the judicial error causes damages to the jurisdictional ones. The State has a duty to provide effective judicial protection to citizens. In view of this, its verified the relevance of the research, as a result of the current large volume of processes in the Brazilian Judiciary, as well as the insufficiency of the necessary structural investments, which hinders the efficiency in its processing. In case of a malfunction of the judicial public service, due the delay or failures, it should be discussed whether it is possible to charge Stateresponsability through an indemnity lawsuit, wich can be considered as a mechanism for defending the individual against sovereignty. In order to do so, it will be conceptualized the State responsibility and its configurative assumptions, as well as its historical and legislative evolution, through a deductive approach. Also, concrete cases decided by the Brazilian courts will be analyzed, on the practical application of the theories addressed, through the inductive method. The Brazilian Federal Constitution establishes the principle of reasonable duration of process, which must be verified at the concrete case, in reason of the indetermination of the expression. The right to reparation for judicial error is constitutionally guaranteed, however, it must be verified whether it comes from a judicial or administrative act. As a rule, there is no responsibility for judicial acts, which is the function of judging by the judges, except in case of fraud or fault. Case law are solid by limiting State responsibility in providing jurisdiction to cases of fraud or guilt by public or political agents. In other words, as a rule, procedural delays do not give rise to State responsabilility, because it is justified by the specific circumstances of the particular case. Judicial error may engender State responsibility when it results from the administrative activity of the Judiciary, which will be objective; if it arises from the typical action of the judge, there will be responsibility only in case of fraud or guilt, of a subjective nature, assured to the State the right of return against the agent that caused the damage. When the legal conditions are satisfied for the configuration of the responsibility in the jurisdictional provision, the jurisdictional that suffered prejudice will be indemnified by the public exchequer.