TODOS SÃO IGUAIS PERANTE OS PRECEDENTES: TUTELA JURISDICIONAL EFETIVA, VINCULAÇÃO A PRECEDENTES E DISTINÇÃO DO CASO CONCRETO SOB A ÓTICA DO DIREITO FUNDAMENTAL À IGUALDADE

Abstract

This research aims to analyze the functionality of the precedent system from the perspective of the fundamental right to effective judicial protection in the Brazilian legal system, with special attention to the content of the Recommendation of the National Council of Justice (CNJ) nº 134/2022 with regard to regulation of the treatment of precedents by the bodies of the Judiciary. It results in the presentation of a set of argumentative mechanisms involved in applying precedents to concrete cases. It is necessary to understand that effective judicial protection needs to be offered to those under jurisdiction through vigorous action by the Judiciary, and among all the objectives embraced by the current Brazilian legal system, a special highlight and of fundamental relevance is its intervention as a way of perfecting respect for the fundamental right to equality, as analyzed in this research. Due to the fundamental right to non-detachability from judicial control, it is the State's responsibility to provide appropriate resolutions to individuals who place their concerns before the Judiciary, in a way that enables their response through a fair process. According to the recommendation of CNJ nº 134, it is possible not only to analyze this concept of fair process, but also the relationship of this fundamental right with that of equality, and the link to precedents, adding this to the necessary understanding of the distinction of the precedents themselves as a manifestation the right to equality through the legal system. Using the deductive method with systematic interpretation, this analysis results in a series of models that indicate the existence of a strong relationship between the effectiveness of judicial protection and respect for the fundamental right to equality. That is, in countries where the civil law system is adopted, respect for precedents does not entail an affront to any fundamental rights or guarantees inherent to the respective legal systems. Adopting a contrary view, what is understood is that Brazilian law therefore adopts this binding technique in order to ensure the effective fulfillment of the fundamental right to equality.