Superior Court of Justice admits amicus curiae in appeal that is not judged as repetitive.
In an unusual decision, Justice Og Fernandes, of the 2nd Panel of the Superior Court of Justice (STJ), admitted the Brazilian Association of State Lotteries (ABLE) as amicus curiae in a special appeal that is not being processed as a repetitive case. The Justice cited Article 138 of the new Code of Civil Procedure, which does not restrict the intervention of amicus curiae to specific legal actions and procedural incidents.
The CPC rule provides for the admission of an amicus curiae in any situation where the relevance of the matter, the specificity of the issue, or the social impact of the controversy is identified. Until then, there was no legal provision regarding the admissibility of amicus curiae , but the jurisprudence of the courts only admitted it in cases of repetitive cases or actions in higher courts.
The minister acknowledged the importance of the topic, because it deals with the limits that states have in operating lotteries. Furthermore, he stated that the subject is new and the association can bring "technical contributions" to the legal debate.
"The possibility of social repercussions cannot be ruled out, because the decision to be rendered in this case may affect, even if only as a future precedent, the other federated states that operate the aforementioned state lotteries," the minister explained.
The special appeal (Resp 1.674.145) addresses the possibility of states operating lotteries. Part of the revenue from these lotteries finances social security and forms part of the states' budgets. In this case, a portion of the revenue from the Ceará State Lottery is allocated to sports, youth programs, and combating drought.
According to lawyer Natália Peppi, from Ayres Britto Advogados, who is defending ABLE in the case, this modification allows for the intervention of amicus curiae at the first instance level, in any type of process and not only in those of an objective nature or in specific procedures.
According to the lawyer, the discussion in this case is not about lottery modalities not provided for in federal legislation, as was the case with bingo.
ABLE argues that lotteries are an atypical state activity, meaning they are neither a public service nor an economic activity, but rather a promotional activity to finance Social Security.
Furthermore, according to the association, state lotteries are authorized to sell games, regardless of whether they were established before Decree-Law 204/67, as long as they are similar to the modalities operated by the Union; thus, they are in harmony with federal legislation and the Federal Constitution.
The Brazilian Supreme Federal Court (STF) has already ruled in a direct action of unconstitutionality (ADI 2.847), recognizing the Union's purely legislative competence in this matter, without this constituting a monopoly on the operation of lottery services or activities. Read the full decision . ( Jota.Info – Livia Scocuglia)
