Approximately twenty years ago, one of the most relevant debates among the Brazilian civil proceduralists became known as the relativization of res judicata. It arose from the detection that some decisions on the merits, although no longer appealable and not accessible by an action for relief from judgment, had been seriously spoiled by procedural defects or errors in them.

It is certainly impossible to summarize in a few lines the contents and the subsequent events of such an intense controversy, but to its basis was the idea that the authority of res judicata could not be used for the perpetuation of severe injustices, and that it could therefore surrender to values which were ​​equally or superiorly protected by the system. Hence it is necessary to “relativize” the concept, essentially by weighing the judgment.

The doctrinal debate was intense and deserved some manifestations – many of them steadily grounded, but others not so much – from a great part of notorious Brazilian proceduralists. Something similar happened in the courts, and the subject was discussed, for instance, in actions for the declaration of paternity and those related to pecuniary interests of the Public Treasury. In São Paulo, so as to illustrate, the subject was – and, although in a different guise, it still is – discussed in matters of compensations in expropriation proceedings. And all this, of course, had some reflections on the new CPC, which started to rule, for example – although in a different way – the situation that could be classified as unconstitutional res judicata (CPC / 15, article 525, § § 12 et seq.).

Nowadays, due to the discussions about the initial term for the enforcement of the conviction in the criminal area, the issue of the substantive res judicata has been put back on the agenda as a priority. Although this controversy is essentially linked to the criminal law and the criminal procedural law, there are, in it, important components of the general theory: either because the discussion is based on the interpretation of a constitutional rule, or because the possibility of putting the decisions in force (or enforcing them) before they have become res judicata, is certainly a recurring subject in the different areas of the jurisdictional action. That is why, in addition to everything that has been discussed, especially in recent trial sessions at the Brazilian Federal Supreme Court, I feel encouraged to write a few lines on the topic.

In the civil procedural sphere, the possibility of enforcing decisions which are pending of an appeal (without the effect of staying the proceedings) went on progressively, to end in the rule that establishes that the provisional execution, although governed by its own rules, may be considered definitive when, if there is the payment of a legitimate bond, the judgment creditor is allowed to plead for the practice of acts to the alienation of  property, or even acts that may have irreversible effects. And, if the debtor by any chance succeeds in his appeal, it will not be necessary to return to the previous level, and the injustice will be corrected only by pecuniary benefit – what, as a matter of fact, is the reason for the requirement of the bond, which, exceptionally, may even be waived by the system.

In the area of civil procedure, unfair executions are controlled by considering the plausibility of the right alleged by the debtor, in such a way that, despite the legal rule that allows the satisfaction of the creditor in the way explained above, provisional remedies may be granted, which, giving the effect of staying the proceedings to appeals that usually do not have it, prevent or limit the execution until all the appeals have been judged. However, the exception, at least in this case, only confirms the rule that provisional executions take the form of definitive ones.

In the criminal system, especially when discussing deprivation of liberty, things do not, and could not happen that way. There is no bond that would properly be able to repair the consequences of the unjust deprivation of liberty. More than that, the Constitution in force was exhaustive when establishing that only after the decision has become res judicata it will be possible to disclose the effectiveness of the conviction.

It is not only presumption of innocence, which is also expressly enshrined, but it would not be (as it really is not) in itself, an impediment to the enforcement of the decision based on a judgment that is still temporary. It goes further: the confirmed option was literal, and therefore whoever defends the possibility of the immediate enforcement of the decision before it becomes res judicata can not be limited to use arguments that were relevant when the constituent’s wish was conceived. In view of the constitutional text, it is not enough to support the idea of the inconvenience of associating the enforcement of the decision to the fact that it becomes res judicata, or how unfortunate the constituent’s choice was.  Anyone who wishes, in a serious and well grounded basis, to support that a decision can be enforced before it has become res judicata needs to overcome the challenge of mastering the literal meaning of the constitutional rule, using legal, and not just political, sociological, or other arguments – herein included the occasional ones, which may be used as circumstantial purposes as well as momentary advantage.

Hence the title of this article: the country’s current situation apparently takes us to a new debate about res judicata, in which one intends to relativize it; not the way it used to be relativized among the civil proceduralists anymore, but in another atmosphere and with other subsequent events. Relativizing res judicata nowadays means to examine whether and how the concept may or may not be confronted with other equally relevant values ​​in the system, in the same level of the individual liberty, so as to know if and under what conditions it would be possible to overcome it – and the literal meaning of the constitutional text – in order to enforce convictions that can still be modified.

Some of the plausible arguments for possible ways for overcoming will be analyzed in the next article.