Questions/Answers

The State of Piauí, in northeastern Brazil, is one of the poorest and most deficient federative State in providing public services, and in the elaboration and implementation of public policies. The national and international laws, thus, guarantee social fundamental rights, such as public health, dignified housing and balanced environment. Because of noncompliance of these commandments, there are numerous lawsuits filed in the Federal Court of Piauí requiring the effective implementation of these social rights. Nevertheless, the implementation of such rights through judicial decision faced two main obstacles: from a theoretical point of view, the defendants presented arguments based on a budgetary nature and related to the separation of powers; from the practical point of view, even when there was a decision against the State by the Judiciary, the mandatory execution of the specific obligation was hampered by the fact that these rights were dependent on public policies, which it is not an attribution of the Judiciary. Therefore, with the objective to guarantee EFFECTIVENESS TO THE RIGHTS WHICH IMPLEMENTATION DEPENDS ON PUBLIC POLICIES, a specific modus operandi was created, based on conciliation, in which the adversarial perspective is replaced by the communicative perspective, requiring the effective participation of those affected.

The initiative develops effective and accountable institutions (category 3) because, by promoting the public discussion among affected, it favors that technical and legitimate arguments, through the dynamics of the work, prevail and surpass illegitimate interests such as purely electoral or economic. The Circle introduces an innovative practice and structure (first criteria) because the Judicial system traditionally operates from the monological perspective of the judge. In the traditional perspective, the judge SAYS the right. In the Circle, the various affected parties BUILD the right. It is a structural shift. The angular structure gives way to a circular structure.

In the Public Policy Conciliation Circle, the measures for the realization of social rights are collectively discussed and consubstantiated in a schedule, demanded by the Judicial system. It is an initiative aligned with 2030 Agenda since it aims to guarantee human dignity in a democratic way, effective and inclusive, without leaving anyone behind. The initiative is relevant to achieve reduced inequalities (SDG 10), since social rights are implemented for the poorest, and also to build peace, justice and strong institutions (SDG 16), because their way of acting empowers institutions in fulfilling their role.

There were multiple positive impacts generated in vulnerable groups that have reached for the Justice system in search of the recognition of their social rights. Some are hereunder mentioned. In the case of cancer patients to whom care in the public health system were denied, an oncological unit was installed in the University Hospital, to increase service capacity. In the case of poor families living at risk, in "Parque Universitário", it was guaranteed the donation by the federal government to the local government of a specific area, with the commitment from the local government to establish a settlement for these families and sponsor urban improvements in the region. Regarding land reform beneficiaries who had their projects compromised with the construction of an interstate highway, it was done the division of lots and given the deeds to these properties to each family, as well as the usage for pisciculture of areas where there was irregular land extraction. In the case of a abandoned historical building, called "Estação Ferroviária", it is becoming a museum. In the case of Red Mountain, it was started a procedure to expand a national park to protect the area threatened by coal companies.

The initiative is innovative since, typically, the judiciary work is through the enforced imposition of a judgement, delivered by a neutral and distant judge. In the Circle, the judge acts as a mediator and validates the arguments of the parties involved. For this, a customized modus operandi was created, which consists of a collective construction of an action timetable, to be demanded in synchronized hearings. There are also specific principles: joined construction of the solution; expiration of the conflict; respect to technical considerations; facing the causes of the problem; openness to the construction of alternative solutions; gradualness of action.

The innovation is original. It was not an adaptation from another context.

The initiative has not yet been transferred to other contexts, but it is capable, because it is applicable in any place or time where the challenge is the achievement of rights dependent on public policies, since it has an abstract regimentation, which establishes their own procedure and principles. In the Federal Court of Piauí, it is already common for plaintiffs and defendants of collective actions, such as the Federal Prosecutors Office and the Federal Attorney General’s Office, to request the proceeding to be forwarded to the Circle before of being submitted to the traditional judicial treatment.

The Public Policy Conciliation Circle was established through Ordinance n. 143/2015/DIREF and Ordinance n. 180/2016/DIREF. An expanded hearing room was established for 15 participants and for the audience, with the right to voice during the session. The existing unifocal voice and image recording system fit for recording witness statements was replaced by an ambient recording.

Sustainability is one of the most important aspects of the Public Policy Conciliation Circle. The enforced imposition of a right, that depends on public policy, by the judicial system, traditionally, takes one of two ways: either it ignores the budgetary matter and enforces the law, leaving the problem of resource shortage for the public administration to resolve, and by doing so, places in jeopardy the fulfillment of other social rights without ponderation; or uses the budgetary constraints to deny the right, claiming the impediment of "principle of reserve for contingencies". In the Public Policy Conciliation Circle, the analysis is broader because it discusses not only WHICH right, but also HOW to materialize it. This discussion embraces the analysis of strategies and impediments, as well as the composition of responsibilities, so that the solution adopted starts from a more comprehensive, realistic and consequent perspective of the possibilities.

Yes

The Public Policy Conciliation Circle has been evaluated twice: 1) By the National Council of Justice of Brazil, for the occasion of the "Conciliar é Legal" award. It is an external evaluation, since the mentioned structure is responsible for the external public control of the Brazilian judicial system, as foreseen in art. 103, of the Constitution of the Republic. 2) By the Forum Director of Federal Court of Piauí. The Public Policy Conciliation Circle is one of the initiatives of the Conciliation Judiciary Center, which is a body that form part of Federal Court of Piauí.

1) The indicators used by National Council of Justice were: efficiency, rebuilding of social relations, creativity, replicability, social outreach, debureaucratization, effectiveness and satisfaction of the user. All initiatives were required to prove their applicability and results. The “Conciliar é Legal” is a award, of national reach, which reinforces the importance of mediation and conciliation methods to help in the appeasement process of society. 2) The indicators used by Forum Director of Federal Court of Piauí were: working method and results in numbers.

1) The initiative of the Public Policy Conciliation Circle was the winner of the 2017 edition of the "Conciliar é Legal" award, in the "complex or collective demands" category (certificate is one of the supporting documents). 2) The Forum Director of Federal Court of Piauí detailed in a report (supporting document) the followed numbers: 4538 outpatient medical appointments, 4637 chemotherapy sessions, 986 hospitalizations, 2068 biopsies,in the highly complex cancer unit established; 2,500 families benefited from the land regularization of the “Parque Universitário”; 275 families benefited from the individualization of rural lots of settlements for land reform.

The engagement of skateboarders is one of the fundamental points of the Public Policy Conciliation Circle, where proposal is precisely to shift the axis of the decision, which is no longer just the judge, to be built collectively by those involved. A illustrative example was the case of the land reform settlement, which was stricken by the interstate highway loop. One of the most controversial points of the debates was what to do with the large holes resulting from the land extraction to landfill the highway. The government was taking as a solution the restitution of the affected or the recomposition of the area. The settlers, in turn, expressed their interest in turning the holes into fish tanks to develop fish farming to strengthen the livelihood of families. The solution presented by the stakeholders was adopted. In addition to the engagement of the skateboarders, the engagement of public authorities is also essential. Usually, in judicial proceedings, the government attorney’s is limited to defending their actions. It was necessary persuasion to change this perspective towards litigation. As results become materialized, the government understood that when it comes to social rights, there is no space for clashes, but rather for joining forces.

The developed experience has shown that, in proceedings in which rights dependent on public policies are debated, the following guidelines should be adopted: - a more dialogical action of the Judicial system is necessary, with the participation of those affected in the construction of solutions process; - the solutions are not instantaneous nor are ready to be reached by the judge; however, they are democratically built, with their concreteness protruding in time; - it is necessary to focus on finding solutions and not only on identifying guilt.