JUDICIAL SELF-RESTRAINT IN BRAZIL: AN ANALYSIS OF STRATEGIC RELATIONS BETWEEN THE STATE BRANCHES.

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1 JUDICIAL SELF-RESTRAINT IN BRAZIL: AN ANALYSIS OF STRATEGIC RELATIONS BETWEEN THE STATE BRANCHES. Juliana de Brito Giovanetti Pontes Catholic University of Pernambuco, Brasil. João Paulo Allain Teixeira Federal University of Pernambuco, Brasil. Catholic University of Pernambuco, Brasil. José Mário Wanderley Gomes Catholic University of Pernambuco, Brasil. ABSTRACT The arguição de descumprimento de preceito fundamental - ADPF (Complaint of Breach of Fundamental Precept) is a typically Brazilian procedural constitutional instrument, able to prevent acts of threat or violation of fundamental precept deriving from the Government. The context of judicialization and activism in Brazilian Supreme Court (STF) highlights the small number of judged pleas explain the occurrence of judicial selfrestraint and the behavior of judges to render decisions regarding ADPFs. The main explanation for judicial self-restraint is that there a conflict between the executive and judicial branches: most of the foundations point the judiciary itself as the biggest violator. However, the Brazilian Supreme Court actually decides ADPFs whose violator is the executive branch. This research aims to understand the selectivity in the trial of ADPFs held by Brazilian Supreme Court, specifying the elements that motivated the actual decision-making process and the factors that allow the practice of self-restraint by the Brazilian Supreme Court. Keywords: Brazilian Supreme Court. Judicialization of politics. Judicial self-restraint. Selectivity. INTRODUCTION The changes made in constitutional orders in period after World War II ( ) made possible the judiciary appreciation as state power able to solve many of the conflicts in, political, legal social context. Constitutional jurisdiction, understood as a function of state whose purpose is to fulfill the commandments inserted in Constitution, enabled that regulatory abstract frameworks normatized in the factual reality. The Constitutional jurisdiction aimed the affirmation of supra legality to establish the infra-constitutional norms which should be linked to parameters established by Constitution, making possible practice of judicial control of constitutionality. "Constitutional jurisdiction" in your contemporary word version is based on the need for the establishment of a mediator instance, neutral and impartial for the solution of conflicts in the constitutional field (BONAVIDES, 2004, p. 128). Simultaneously with constitutional adjudication development and recovery of activities of the judiciary other public authorities had their capacity of solution of conflicts

2 reduced due to the increase of social complexity and the need for further quantitative standards effectively able to solve conflicts arising from this pluralist society that appeared. Thus, the judiciary came to be regarded by society as guardian of guarantees and fundamental rights and major power which could appeal to solution conflicts and satisfaction of interest groups claims. As result of changes in laws, it has become possible to perform the control of constitutionality of rules by judiciary power; before this activity was restricted for executive and legislative branches. The practice of normative control, having originally developed in Europe and North America, presented as systems that most influenced the Brazilian constitutional control, namely, the concentrated and diffuse control. With emergence of new mechanisms of constitutional control in Brazil - among them, the arguição de descumprimento de preceito fundamental - and by the results of judgments delivered in place of concentrated control, it is observed that strong context of legalization and activism in Brazilian constitutional jurisdiction highlights the few number of arguições de descumprimento judged. Was sought to understand the selectivity of ADPFs at trial by Federal Supreme Court (STF), specifying elements that led to actual decision-making process and factors that allow the practice of self-restraint by the Brazilian Supreme Court. Is expected with this research contribute to understanding of strategic relations between the Powers constituted state. BRAZILIAN SYSTEM OF CONSTITUTIONAL CONTROL AND ARGUIÇÃO DE DESCUMPRIMENTO DE PRECEITO FUNDAMENTAL In Brazil, the highest appreciation of judicial functions by the Constituent originating happened through the promulgation of the Constitution in 1988 highlighting the importance of normative control performed by Judiciary before restrictions caused by the Executive and Legislature. As of the legal and regulatory control and need for enforcement of fundamental rights and guarantees, new mechanisms to control the constitutionality were created in the Brazilian order, among them, arguição de descumprimento de preceito fundamental (ADPF), which was the object of study of this search. Having suffered recent process of democratization, from the advent of Federal Constitution of 1988 and the adoption of hybrid system of judicial review, we found in the Brazilian legal system the occurrence of some U.S. system practices, namely, the existence of judicialization of politics, judicial activism and judicial self-restraint. The Brazilian Supreme Court not have only the institutional role of safeguarding the Constitution (art. 102, caput, CF/88), also performs the duties of resolving disputes and stabilization of constitutional interpretation in hybrid control of constitutionality. Therefore, the highest Court in Brazilian Judiciary isn't a means to solve particular questions, but situations that involve greater complexity and social repercussions. In the system of constitutionality control practiced in Brazil, the judicial review is exercised under both the diffused context, as the concentrate, making it possible to obtain statements from the highest court (Supreme Court) through features or specific procedural instruments (TAYLOR, 2008 p.826). Thus, opposition groups may resort to the judiciary to promote or impede social reforms presented by groups of major interest. In Brazil the judicialization of politics is derived from the analytical model and the constitutionality control system adopted. The analytical model of the Constitution is characterized by presenting more detailed rules relating to the organization and

3 functioning of the state, greater respect to fundamental rights or human rights and greater number of specific rules (TAYLOR, 2008, p.826). For being very broad, the Brasilian Constitution of 1988 has as ultimate guardian the Judiciary branch, whose work could start by diffuse or specific control actions. Such attribution causes the Judiciary has the last word in deciding in several cases - both related to fundamental rights and to public politics (MEDEIROS, 2011, p.530). Notwithstanding the presence of the hybrid model of constitutional control, Brazil didn't adopt an ad hoc tribunal, maintaining the structure of the mixed control - concrete abstract control and incidental direct control - using only the action of unconstitutionality by omission, coming from the Portuguese Law. Important to observe that the existence of constitutional control into your diffuse form, along with the concentrated control is an important instrument of constitutional filtering; So we the relevance of the study of the peculiarities that characterize the hybrid Brazilian control of constitutionality. "Indeed, the diffused control of constitutionality... removes from the organ of Judicial Branch the monopoly of judicial review" (STRECK 2004, p.456). From the new Magna Carta, a trend that gives emphasis not to diffused model but for the centralized model, began to be observed since of the constitutional controversy was submitted to the Supreme Court, through the abstract control of norms. Important element resulting from such modification refers to the large list of legitimate parties to institution of the actions of concentrated control, allowing individual petitions that are typically conducted by the STF direct action of unconstitutionality (VAINER, 2009, p. 224). "Thus, the abstract process meets standards between us double function but it's at same time, one instrument to protect the objective order and defensor of subjective rights" (MENDES, 2008, p.6). In this form of control, the Court shall decide on the law in theory. The existence of an actual conflict is not necessary. Concentrated control has erga omnes effect, being exclusive jurisdiction of Court the abstract control of norms (CARVALHO, 2007, p.162). From the concentrated control, new mechanisms for compatibilization with the constitutional text were created: the direct action of unconstitutionality (ADIN); direct action of unconstitutionality by omission (ADO); declaratory actions of constitutionality (ADC) and the complaint of breach of fundamental precept (ADPF). Only institute in the world, the complaint of breach of fundamental precept characterized is as one of the instruments created to protect the basic guidelines for consolidation of democratic rule of Law of Federative Republic of Brazil. Through the ADPF, has aimed to prevent or repair damage to fundamental precept caused out of acts committed by the Public Power and also where relevant the basis of constitutional controversy related to law or federal, state or local normative act, including prior to the Constitution. The importance of complaint of non compliance is due to the fact that it allows the anticipation of decisions on constitutional controversies with relevant content, preventing that solution will be given after many years, when much of the situations questioned have suffered consolidation due to the time gap elapsed. Another aspect to highlight is the protection of basic guidelines for consolidating democratic state of Federative Republic of Brazil, as tripartite division of branches, federalism, rights and guarantees established by the Constitution of However, not all ADPFs are recognized as means of solve breaches of constitutional commandments: for having limited use, there are few studies about the decision-making process that institute, causing the emptying of its importance in concentrated control of constitutionality.

4 The present study aimed understanding the occurrence of judicial self-restraint in pleas to breach of fundamental precept and analyzed possible causes of stagnation of decision process of ADPFs thereby being evaluated strategic relations between constituted State powers, which is, the existence of conflicts between Executive and Judiciary branches. SELF-RESTRAINT IN BRAZILIAN JUDICIARY BRANCH The occurrence of judicialization the Brazilian legal system was the object of study by Ernani Carvalho (2009), which evaluated the performance of applicants and stakeholders with Supreme Court when the bringing of the ADINs (direct actions of unconstitutionality), with the objective of better understanding of the occurrence of judicialization of politics; the consequences of abstract review of legislation were used as reference in analysis of legalization of direct actions of unconstitutionality (CARVALHO, 2009, p.4). Judicial activism is also present in national legal system, however, shall not be subject of this research, because, as mentioned above, judicialization comprises the opposite phenomenon self-restraint, not being opposite of judicial activism the of practice self-restraint. It should be highlighted that in this moment, Brazilian literature has been devoted to study activism and judicialization, existing ample material regarding the phenomena. However very few works are related to the content of judicial self-restraint. The word turns out to have worn down their content being cautious stance discard the criteria established by the indiscriminate use to try to define aspects that characterize the phenomenon under analysis, replacing the paralyzing effect of clichés (POSNER, 1983, p.1). Although not extensively researched in the Brazilian legal framework, the selfrestraint of Judiciary as well judicialization and activism, is a term utilized for reference purposes of judicial abuses,, ie, when there is a interest on the part of the judiciary in solving an issue or not, changing by some practices the outcome of the decision process: in activism, are applied to cases hypotesis not directly provided in Constitution, thus expanding content of normative interpretation; judicialization is the expansion of decision making of judiciary and its insertion in the protection of the political system through issues conducted by interest groups that aim promote changes in the implementation plans of public policy; in self-restraint, the judge uses his political preferences and moral principles to justify the denial of judgment on a case interfering with that outcome of the decision. The Brazilian understanding of judicial self-restraint differs from U.S., from which began the practice of restricting judgments handed down by judges in specific classes of shares. The brazilian legal literature has the judicial self-restraint as the adoption of a respectful attitude of judges toward the other state powers, avoiding interfer in actions of the executive and legislative branches, with that preventing the direct application of Constitution to cases not expressly planned in their incidence plane. Through this strict interpretation, the judiciary becomes dependent on the pronouncement of the legislature to the trial of these issues, well as abstaining from interference by judges and courts on issues of public policy, using conservative criteria so there is a declaration unconstitutionality of laws and regulatory acts.

5 Differently, in north american juridical literature, judicial self-restraint is checked when the judge uses his political preferences and moral principles to justify the negative judgment of a case; when he acts with prudence and caution in the use of their opinions also - and in this case, has been named the "respectful judge," acting so even more limited than in the first situation; There are even self-restraint when it acts to limit the political practices on the exercise of judicial power. Therefore, the self-restraint does not mean shyness as the proclamation of the decisions, but the use by magistrates of their political and moral preference to change the outcome of a case, based on the negative judgment and consequently reducing number of shares which are decided by the Court. In this context, differs from a self-disciplined judge of a self-restraint/respectful judge: the first seeks decide a case without considering their political preferences, while the second justifies decision in accordance with their moral values and political opinions. However, the higher plan which that Court is part, the lower the self-discipline of judge to believe that their policy preferences play a favorable role in judicial decision-making and may, from that aspect, could adopt a policy self-restraint or judicialization. Verified distinctions as to the conduct of judges, it is observed that judicial selfrestraint presented by Brazilian literature resembles the behavior of the self-disciplined judge not of the self-restrained judge. Thus, the research was based on american selfrestraint, in which there is the identification of factors and behaviors restriction on judgments by the judiciary. The personality of judge is a source to appearance of judicial self-restraint. A retiring judge would not be willing to face other branches of government, and therefore self-contained and could refuse to review decisions of his predecessor activists. To compare judicial self-restraint to inertia of Judiciary is a misconception - so as compare judicialization with boldly would also be incorrect. Similar to judicialization and activism, where personal preference of the judge are always present, in self-restraint it also uses such elements in the decision process; so, differently the erroneous idea that one can have on self-restraint - that the judge does not decide, since it is impartial - this is also possible that the magistrate use their political and moral preferences to justify the solution of a question that you was presented. The judge who does not use them is self-disciplined, not being agent in the phenomenon of selfrestraint of the Judiciary. The judicial self-restraint has as a basic criterion the requirement of evident unconstitutionality clearly identifiable, applying the rule of "doubtful case" (DIMOULIS; LUNARDI 2011, p.468), ie in doubt prevails the option of the legislature, the magistrate shall refrain from declaring the unconstitutionality: in dubio pro legislatore, occurring also the situation that many cases to be judged, remain awaiting either trial, was declared impaired or have not known follow-up denied - this may be one of the elements indicative of the occurrence of judicial self-restraint in the Brazilian legal system influencing the amount of decisions proffered. There being no analysis of merit in ADPF, the actual effects of the decision will not be produced, which reduces the number of pleas amenable to alter the social, political and legal framework. Therefore, no judgment on the merits of ADPFs can characterize the behavior of Brazilian judges self-contained who turn away from judgment concerning the injury of fundamental precept due to the fact with this conduct, being are able to change the outcome of the decision process of pleas. The indicative of judicial self-restraint opposite behavior are the answers of the judiciary in front of legalization practiced by interest groups; in this case, will be a high rate of issues brought to the Brazilian Supreme Court, which thus demonstrates the willingness of judges to participate in the policymaking. In this waywill be seen as the

6 effective judgment (judgment on the merits) of ADPFs occurs, becoming the judiciary more interventionist on the political life of a society. With it, judicial review is very useful for groups of major interest; these not only benefit from judicial review, but also to groups of minorities and members of the legislature, since the power of interpreting statutes and comply with the law is thereby transferred to the judiciary. Judicial review may be used to nullify rules adopted by previous governments or coalitions, destabilizing the legislative basis that is currently active (WHITTINGTON, 2005, p. 584). Regarding the Brazilian Executive branch, is stated that bit is checked superposition of this and the judiciary, however, it is necessary to analyze the relationship between the Executive and Judiciary post that power is also an asset to the filing of legitimate pleas, this element may be decisive for the occurrence of judicial self-restraint in ADPFs. Based on this aspect, we investigated the occurrence of judicial self-restraint in ADPFs, analyzing which elements contribute to the practice of this phenomenon by the Supreme Court. Through quantitative analysis (not judged and judged pleas) and specification of variables (qualitative analysis) was possible to identify some of the limiting factors in the decision process of ADPFs. Have been analyzed all of the complaints of breach of fundamental precept proposals included in the Federal Supreme Court from December 1999 to July ANALYSIS OF STRATEGIC RELATIONS BETWEEN THE STATE BRANCHES: EXECUTIVE VS. JUDICIARY The verification of standards relating to trial of ADPFs involved aspects related to type of violator act of fundamental precept/origin of questioned public act (Federal, State or Local), required powers (legitimate liabilities), federative unit of origin of action, the applicant (legitimized asset), issues involved, existence of an injunction, a result of injunction, requirement of subsidiarity and outcome of complaint. For this purpose, using quantitative and qualitative analysis, we sought to understand the positive and negative selectivity in the trial of pleas of noncompliance made by the Supreme Court, from the analysis of the actions that have not been judged on merits and merits that had examined. Was also analyzed the behavior of Ministers of the Supreme Court with regard to requirement of subsidiarity and respect Law 9.882/99, which regulates complaints of noncompliance. It is also characterized for being an exploratory and descriptive through procedural monitoring of all ADPFs through website of Brazilian Supreme Court ( As the research hypotheses, we investigated a) whether the amount of ADPFs judged in relation to total number of proposals pleas on period is reduced, then, exist the practice judicial self-restraint in ADPFs by Brazilian Supreme Court; b) few ADPFs pass through positive selectivity and have analyzed their merit; c) even this requirement of subsidiarity in pleas, Ministers don't proffer judgment, leaving to observe the law 9.882/99 and finally, d) changes in the context of judgment of ADPFs occurs due to self-contained and selective behavior of Ministers when Rapporteurs decide these actions, also due to the subjects and applicants that figured in pleas of noncompliance. The first datum analyzed included the total ADPFs proposals and the negative selectivity of pleas - those that have not been analyze in its merit. Until July 2013, proposed a total of 275 (two hundred and seventy five) ADPFs. That number, only 8% of Pleas had its merits examined, while 92% did not undergo analysis in its content; thus, all

7 proposals pleas reveals a small percentage of judgment by the Supreme Court, as can be seen in Figure 1: Graph No. 1: Results of ADPFs proposed 35% Results of proposals ADPFs 3% 1% 2% 1% 3% 2% 9% 5% 39% ADPF Founded Founded in part Unfounded Injuction granted Awaiting judgement Hindered ADPF not known Follow up denied Received as ADIn Extinct ADPF Font: own elaboration from data collected on the website of the Brazilian Supreme Court. It was identified that most of the proposals pleas had follow-up denied - suffered negative selectivity - due to procedural defects, mostly comprising the absence of conditions necessary for action: illegitimacy ad causam and object not understood as an act of public authority. These are some of factors that can be used by Brazilian Supreme Court to substantiate unaware of pleas, thereby preventing the occurrence of the effective decision making process. It was also observed that amid of high quantitative of ADPFs were not judged, there was a low rate of those that were not resolved but were converted to direct actions of unconstitutionality. To these pleas, even with formal errors should have been assigned the status of follow-up denied, however, it was found that merit analysis have suffered judgement by reason of the Supreme Court ignore defects in ADPFs to judge them, demonstrating the presence of political and moral preferences of Ministers to the point of altering the final result of these actions, as occurs in the U.S. judicial self-restraint, and emphasizes the instrumentality of forms is used by Brasilian Supreme Court to practice of judicial self-restraint implied. The biggest applicants Legitimated of the bringing of ADPFs, in theory, are the union confederations and associations nationwide (78%), followed by political parties with representation in Congress (67%), these data highlight the high rate of initiation of actions by such entities as the final mechanism for obtaining the enforcement of fundamental precepts. The data analysis highlighted the use of Pleas, although in small numbers, as an impediment to changes in public policy action performed by groups of minority interests, but that had the greatest political influence and thus succeeded meeting their claims.

8 Graph No. 2: Claimants in ADPFs Applicants in ADPFs President of Republic Bureau of Legislative Assembly Governor of State Procurator General of Republic Federal Board of OAB Political parties Union confederation or entity class Font: own elaboration from data collected on the website of the Brazilian Supreme Court. The bringing of pleas of noncompliance by executive branch at the state level (40%), although less quantitative than the applicant presented above, demonstrates that need respect for the sovereignty of state and the federal principle is another factor leading to the prosecution of pleas. Regarding the request for an injunction in ADPFs, it was observed that 251 ADPFs brought the request of this and only 16 did not have that element, corresponding to an index of 94% and 6%, respectively. Of these 251 pleas for an injunction, 7% received their concession of which 6% were founded and 1% coming founded in part. The remaining requests for injunctions amount to 50% as damaged, 38% awaiting trial and 5% were denied. Based on these informations, it appears that most pleas of noncompliance, had no merit judged not even suffered the analysis of the preliminary injunction because matter was granted in anticipation of results of future judgment. Thus, the presence of selfrestraint in pleas is also reinforced by not have been given most of injunction orders. From the few injunctions, stood out the injunction orders made in pleas proposed by Governors of State: were granted in most compared with the injunction orders made by entities nationwide class and trade union confederations. This aspect allowed verification that the Estadual Executive branch was the most benefited by effective prosecution of their ADPFs, as well those who have requested an injunction.

9 Graph No. 3: Passive legitimized (Required - Authorities) 1% 3% Required - Authorities 1% Executive 23% 28% 11% Legislative Judiciary Executive and Legislative Executive and Judiciary 33% Executive, Legislative and Judiciary Public Prosecutor Font: own elaboration from data collected on the website of the Brazilian Supreme Court. In relation to entities responsible for the violations/threats to fundamental principles, it was found that judiciary, in an isolated way, had the highest number of violations (33%), having the same done applying infra standards ranging from against rules of Highest Law. Order not to be recognized as greatest violator of rules that should rightly protect, the judiciary branch remains inert with respect to the trial of these cases, going to select only cases of great social impact and involving acts arising mostly from Executive branch. That is the main reason why Ministers did not utter judgment within ADPFs. Regarding ADPFs judged on merit, until the period of July 2013, only 20 (twenty) ADPFs total of 275 (two hundred and seventy five) suffered actual decision-making process, which corresponds to 8% of pleas. Therefore, all proposals pleas reveals a small number of judgment by Brazilian Supreme Court. As noted previously, much of proposed pleas (275 Pleas) was not known due to presence of procedural defects. Graph no. 4 shows the result of trial ADPFs effectively judged:

10 Graph No. 4: Results of ADPFs judged on merit ADPFs judged on merit 25% ADPF founded 10% 65% Founded in part Unfounded Font: own elaboration from data collected on the website of the Brazilian Supreme Court. The founded judgment provides benefits to applicant of ADPF, while the inappropriateness or judgment not benefit the entity responsible for practice of violation or threat to fundamental precepts. Through judged and not judged pleas, it was possible to observe the occurrence of conflict between executive and judiciary branch on issues brought to the Brazilian Supreme Court, since most proposals pleas says much about the executive branch, indicated as applicator unconstitutional rules and violator of fundamental precepts by public administrations. The guarantees and fundamental rights related to in Articles 5 to 7 of Brazilian Constitution, being supported by human dignity merit principle (Graph no. 5). Graph No. 5: Subjects in ADPFs Subjects in ADPFs Tax and budget Public employees Social rights and pension plan Legislative jurisdiction Economy and finances Legislature Judiciary Executive Education Elections and political rights Font: own elaboration from data collected on the website of the Brazilian Supreme Court.

11 The graph no. 6 presents the public entities who violated or threatened to violate fundamental precepts within ADPFs effectively judged. It appears that Executive branch, in isolation, had the highest number of violations (45%), followed by the judiciary (35%). In total ADPFs proposals, the situation is reversed, with Judiciary the power that most threatens or violates fundamental precepts (33%), followed by Executive branch, with 28% of the pleas of noncompliance. Graph 6: Comparative - Total ADPFs required proposed by branches and effectively judged Font: own elaboration from data collected on the website of the Brazilian Supreme Court. The comparison made between passive legitimated points relevant for the explanation of factor that has motivated the judiciary self-restraint, together with the positive selectivity performed by Ministers at ADPFs: in general framework, judiciary is largely responsible for threats/violations (33%); who suffered actual trial, the Executive branch is the biggest violator of fundamental precepts agent, corresponding to 45% of pleas. The Legislature, contrary to what one might observe, is one of powers that less threat /violates fundamental precepts; its inaction in establishing standards and measures for the state is indicative of this small number of cases (5%). By means of percentage graphic no.6, it is observed that, when a proposed ADPF in face of Executive, it exercises control over the judiciary at time of committing the act, but such control does not override autonomy of that power, because the idea of surveillance and reciprocal control between the powers brings elements that characterize the modern principle of separation of powers. What is happening is that the judiciary does not decide of complaints in which himself figured as violator of fundamental precepts, thus analyzing the merits of proposals ADPFs against the Executive branch. With that, the assertion that bit is checked for overlap between executive and judiciary is mistaken: the judiciary prioritizes the trial of pleas arising out of acts of public authority whose origin is Executive and thus, benefits, remaining as able defending fundamental precepts constantly violated by Executive branch. The judgement did not

12 occured as resulting from selectivity, that represents a political choice as it keeps the effects of contested act, benefiting the political entity that issued the act. The same effect occurs when the unfounded judgment. Positive selectivity comprises the choice of ADPFs to be brought to trial by Supreme Court, that from decision-making process makes possible to produce concrete effects on the social, political and legal context. Thereby, the Supreme Court exerts selectivity both for the direct actions of unconstitutionality of the complaints but also in breach of the fundamental precept. However, in these, selectivity is even more intense than in ADINs mode, since selectivity of political issues is present in the concentrated control of constitutionality, when a small number of shares suffer judgment on merits. The analysis of ADPFs as effective judgment based on same variables set for total proposed pleas - namely, type of violator act of fundamental precept required powers, federal unit of origin of action, applicants, subject matter involved, existence of preliminary injunction, result of injunction, requirement of subsidiarity, result of years trial and complaint ADPF - to confirm existence of positive selectivity in context of judicial self-restraint. Of the complaints of noncompliance judged on merit had in common the pursuit of trade union confederations and associations nationwide compliance with government to fundamental precepts guarded in articles 5 and 7 of the Brazilian Federal Constitution. Then, as largest applicant appear political parties with representation in Congress. That pattern repeated when the analysis is performed on the full scope of the sample ADPFs (275 pleas) used in this work, where trade unions and professional associations nationwide are also the largest shares of applicants. Thus, ineffectiveness of majoritarian institutions and their consequent inability to provide for needs revealed the steady demand for the use of pleas by minorities as a means of effecting social demands. Subsidiarity in ADPFs is considered "a special and specific condition for action" (SANCHES, ADPF no. 3, 2004) that non-existent, prevents knowledge of constitutional control mechanism. In other terms, the principle of subsidiarity - no other effective means of remedying the injury - contained in art. 4, 1, of Law no. 9882, 1999 is to be the one able to solve the relevant constitutional controversy lock, stock and immediately (Mendes, 2009, p.180). The requirement of subsidiarity is, in our view, another element that contributes to practice of judicial self-restraint and greater selectivity of political issues brought to Brazilian Supreme Court, Ministers have given decisions contrary to the law of ADPFs (Law no /99) even requirement of subsidiarity being present: the requirements of the law not are observed and decisions have been handed down even when was the possibility of using other means suitable to remedy the threat or injury. Therefore, there is the disregard of defects of form in ADPFs by the Supreme Court and requirement of subsidiarity, demonstrating that instrumentality of ways would be a discourse used by Brazilian Supreme Court to the practice of judicial self-restraint and implicit selectivity of cases that will to trial. Thus as the political interests involved in the cause, subsidiarity isn't used. Therefore, this practice prevents occurrence of trial, which favors presence of implicit judicial self-restraint seat in complaint of breach of fundamental precept. With practice of judicial self-restraint, the decision-making process is presented influenced by ideologies of the judge, receiving political outlines the possibility of their

13 interfering effects on outcome of public policy. There is interference between law and politics, since the norm is the will of legislative majority and the decision, judge adopts position for or against this majority or minority. Graph 7: Origin of violator act of fundamental precept Acts violation of fundamental precept 15% 5% 80% Federal Branch State Government Municipal Branch Font: own elaboration from data collected on the website of the Brazilian Supreme Court. Federal Judiciary was the entity responsible for highest percentage of violations of fundamental to interpret and apply standards published by Union, thereby precepts, was the one who suffered most concentrated control of constitutionality in ADPFs. These rules therefore constitute acts of public authorities arising from object pleas proposed by Governors of State and trade union confederations and associations nationwide. Legislature branch, contrary to one might observe, is one of powers that less threatened/violated the fundamental precepts - their inertia in establishing standards and measures for state is an indication that reduced quantitative process. It appears that judiciary branch doesn't decide of the complaints in which he himself figured as violating the fundamental precepts, from reviewing merits of proposals ADPFs against Executive branch. Finally, the evidence of the assumptions made in this study, referring to investigation of causes of change in context of trial pleas. The subject matters of actions are not used as a constraint mechanism, however from analysis by year of trial, it appears that they contribute to increase in number effective decision-making processes. Differently from subjects, we found that in relation to admissibility of ADPFs, many were not followed up due to act in question not be considered arising to government and if so, the type of act worked as a deterrent element. From these observations, was found that the ADPFs claimants are not responsible for change in context of the pleas element. The analysis with respect to active legitimized in pleas shows that total of proposed actions and those who experienced trial, the greatest benefit from decision-making process was State Executive branch, which reinforces the hypothesis that applicants are not responsible for change in number of trials element.

14 It was also possible to confirm hypothesis that, according to posture adopted by Rapporteurs, there will be greater or lesser amount of deemed shares. When analyzing the total sample of 275 ADPFs, led the index non judgmental pleas Ministers of Marco Aurélio, Ricardo Lewandowski and Joaquim Barbosa, in which is found the exercise of selectivity in judgment of ADPFs by Brazilian Supreme Court. In context of pleas effectively prosecuted, the selectivity characteristic was strongly present, and was verified maintenance of more selective positioning by most Rapporteurs, with exception of Minister Luiz Fux, who decided the merits of greater quantitative pleas. These elements demonstrate the existence of intense selectivity of issues by Supreme; choices are possible due to the increased powers of intervention of courts in the political arena feature, as well as legalization and activism, is also present in judicial selfrestraint. CONCLUSIONS The Supreme Court has adopted a posture of voluntary abstention in relation to the prosecution of ADPFs due to the same stand as biggest violator of fundamental precepts of the Judiciary, which should ensure respect for constitutional guarantees and fundamental precepts laid down in the Constitution. However, amid the few ADPFs judged by Rapporteurs Ministers, the Supreme selects some specific situations arising in these pleas for trial because of its relevance, greater impact on society and political interests involved. Given the context of judicialization of politics and judicial activism present in Brazilian constitutional jurisdiction, it was found that that ADPFs have suffered limitations with regard to decision making process of their actions, occurring mainly due to much of the pleas of noncompliance submit as being greater violator of fundamental precepts of Judiciary. Thereby, the restriction is that Judiciary branch doesn't miss his decisiveness and confidence by society, regarded as the only state power can solve conflicts not finalized by others powers. This is the main element underlying the occurrence of judicial self-restraint in ADPFs. Through judged and not judged actions, it was possible to observe the occurrence of conflict between executive and judiciary branch on issues brought to Brazilian Supreme Court, since most proposals pleas says much about Executive branch, as indicated applicator unconstitutional rules and rapist fundamental precepts by public administrations, the guarantees and fundamental rights, being supported by merit principle of human dignity. The assertion that bit is checked for overlap between Executive and Judiciary is mistaken: the Judiciary prioritizes the trial of pleas arising out of acts of public authority whose origin is Executive and thus, benefits, staying power as it stands fundamental precepts constantly violated by Executive. The judge did not, due to selectivity, represents a political choice as it keeps the effects of contested act, benefiting the political entity that issued the act. The same effect occurs when the judgment is unfounded. Inserted under the self-restraint, ADPFs are essential means of defending fundamental precepts admitted access to a review by Judiciary in concentrated form and being able to provide erga omnes effects - reaching all other situations where act or standard object challenge transgressed the fundamental right under Constitution. From these results, we hope to contribute to understanding of strategic relations between the state branches and broaden the knowledge of specific effects of control of constitutionality accomplished by the use of complaint of breach of fundamental precepts.

15 REFERENCES BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Brasília, Distrito Federal: Senado, Lei nº 9.882, de 03 de dezembro de Dispõe sobre o processo e julgamento da argüição de descumprimento de preceito fundamental, nos termos do 1 o do art. 102 da Constituição Federal. Diário Oficial [da] República Federativa do Brasil. Brasília, DF, 6 dez Disponível em: < Acesso em: 7 out Supremo Tribunal Federal. ADPF nº 3. Relator: Ministro Sidney Sanches. Diário de Justiça, Brasília, 27 nov Disponível em: < Acesso em: 21 jul CARVALHO, Ernani Rodrigues de. Judicialização da Política no Brasil: controlo de constitucionalidade e racionalidade política. Análise Social, vol. XLIV, n. 191, abr., Disponível em: < ISSN Acesso em: 5 jun Revisão judicial e judicialização da política no direito ocidental: aspectos relevantes de sua gênese e desenvolvimento. Revista de Sociologia e Política, Curitiba, n. 28, jun Disponível em: < ng=pt>. Acesso em: 5 jun DIMOULIS, Dimitri; LUNARDI, Soraya Gasparetto. Ativismo e autocontenção judicial no controle de constitucionalidade. In: FELLET, André Luiz Fernandes; PAULA, Daniel Giotti de; NOVELINO, Marcelo (Orgs.). As novas faces do ativismo judicial. Salvador: Juspodium, 2011, p MEDEIROS, Bernardo Abreu de. Ativismo, delegação ou estratégia? A relação inter poderes e a judicialização no Brasil. In: FELLET, André Luiz Fernandes; PAULA, Daniel Giotti de; NOVELINO, Marcelo (Orgs.). As novas faces do ativismo judicial. Salvador: Juspodium, 2011, p MENDES, Gilmar Ferreira. Arguição de Descumprimento de Preceito Fundamental: comentários à Lei nº 9.882/99, de São Paulo: Saraiva, Jurisdição Constitucional no Brasil: o problema da omissão legislativa inconstitucional. In: 14º Congresso da Conferência de Cortes Constitucionais Européias, 2008, Vilnius. Disponível em: < o=noticiaartigodiscurso&caixabusca=n>. Acesso em: 23 jan POSNER, Richard A. The Meaning of Judicial Self-Restraint. Indiana Law Journal, vol. 59, article 1, Disponível em: < Acesso em: 24 mai

16 TAYLOR, Matthew M; DA ROS, Luciano. Os partidos dentro e fora do poder: judicialização como resultado contingente da estratégia política. Revista Brasileira de Ciências Sociais, Rio de Janeiro, vol. 51, n.4, STRECK, Lenio Luiz. Jurisdição constitucional e hermenêutica: uma nova crítica do direito. 2 ed., Rio de Janeiro: Forense, VAINER, Bruno Zilberman. A predominância do controle concentrado de constitucionalidade e as perspectivas de uma corte constitucional brasileira. Revista Brasileira de Direto Constitucional, n. 14, jul./dez Disponível em: < Monografia_Bruno_Zilberman_Vainer_(Predominancia_do_Controle_Concentrado).pd f>. Acesso em: 11 jan WHITTINGTON, Keith E. Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court. The American Political Science Review: American Political Science Association, vol. 99, nº 4, nov., Disponível em: < Acesso em: 9 jul