Escola da Magistratura do Estado do Rio de Janeiro
Escola da Magistratura do Estado do Rio de Janeiro
O maior evento de formação judicial do mundo, com edições em todos os continentes e representantes de diversos países, promoveu mais uma edição. A 9ª Conferência Internacional sobre Capacitação do Poder Judiciário – “International Organization for Judicial Training” (IOJT) aconteceu de 22 a 26 de setembro, na Cidade do Cabo, na África do Sul.
O ministro do Superior Tribunal de Justiça e diretor-geral da Escola Nacional de Formação e Aperfeiçoamento de Magistrados (ENFAM), Herman Benjamin, representou a instituição. A Escola da Magistratura do Estado do Rio de Janeiro (EMERJ) também esteve presente no encontro mundial, representada pelo seu diretor-geral, desembargador André Gustavo Corrêa de Andrade.
A missão da IOJT é apoiar o trabalho das instituições de educação judicial e promover o treinamento judicial em todo o mundo. A 9ª edição contou com diversos representantes do Judiciário no mundo, que apresentaram painéis de temas atuais da Justiça e da Educação.
“Challenges of Judicial Training in Environmental Law” foi o título do painel do ministro Herman Benjamin. O desembargador André Gustavo discorreu sobre “Judicial Training Challenges Over Abusive Use of Social Media”.
Participaram também do encontro, o ministro do Superior Tribunal de Justiça Geraldo Og Nicéas Marques Fernandes, que apresentou o tema “Judges and Social Media: The Role of Judicial Education”; a juíza federal do Ceará Cíntia Menezes Brunetta, com o trabalho “Judicial Training Challenges in Electronic Process Abstract”; o desembargador do Tribunal de Justiça do Rio Grande do Sul Jayme Weingartner Neto, com o painel “Approaches to Partnering with Academic Institutions”; o desembargador José Marcos Lunardelli, do Tribunal Regional Federal da 3ª Região, que falou sobre “Modern Approaches to Curriculum Development”; o desembargador do Tribunal Regional Federal da 5ª Região Rogério Fialho Moreira, que trouxe o debate “Judicial Training Challenges in Privacy and Internet”; e o juiz do Tribunal Regional Federal da 5ª Região Marco Bruno Miranda Clementino, que expôs o trabalho “Creating Empathy, Leadership, Innovation and Communication for Brazilian Federal Judges” (participou como coautor o magistrado Leonardo Resende Martins).
Confira o resumo da apresentação da delegação da ENFAM na 2019 Conference of The International Organization for Judicial Training
1) CHALLENGES OF JUDICIAL TRAINING IN ENVIRONMENTAL LAW - Antonio Herman Benjamin
In spite of the major environmental problems presently facing the planet (freshwater crisis, biodiversity depletion, climate change, urban and rural pollution, coastal and ocean degradation, wildlife trafficking, soil erosion and desertification, pesticide contamination), in many countries Environmental Law is not yet a discipline taught in law schools, let alone in judicial education institutions.
A lot of progress, though, has been made since the 1992 Rio de Janeiro Earth Summit and a growing number of judicial programs in Environmental Law have been put in place in both developed and developing countries. This effort has certainly been positively reflected in the quality of the expanding case law on the subject and environmental compliance and enforcement in general.
Other recent global and regional initiatives in the field include the establishment of the Global Judicial Institute on the Environment (2016), which has its Secretariat in Nairobi with UN Environment; the European Union Forum ofJudges for the Environment (2004); the Asian Judges Network on Environment (2013), under the auspices of the Asian Development Bank; and the Africa Judicial Educators Network on Environmental Law (2018), the product of a concerted effort by UN Environment. Several multilateral organizations have set up judicial training programs, such as the Organization of American States (“Inter-American Judicial Capacity-Building Program on the Environmental Rule of Law”). A particularly relevant UN Environment action was the publication of the “Training Curriculum” and the “Manual on Environmental Law for Judges and Magistrates in Africa: A Guide for Judicial Training Institutions” (2018). Another major accomplishment was the establishment by the Judicial Summit of Ibero-America of its “Environmental Committee”, which published guidelines for judges (“Environmental Law Principles for an Ecologically Sustainable Environment”).
As “agents for transformation”, judicial institutes, academies and schools face challenges in this “new area of the law” that are not negligible.
First, the design of a basic curriculum, neither too extensive nor too compressed. Second, the collection of leading judicial precedents in the country or in the region. Third, how to address in a meaningful manner environmental issues that are global in nature, like climate change, ozone depletion, international wildlife trafficking, ocean pollution, etc. Fourth, how to train/educate judges on the subject in countries with no specialized benches (the so called “green courts”), including members of Appellate and Supreme Courts. Fifth, how to incorporate relevant international agreements in the curriculum, considering that most judges are not familiar with and do not frequently use international law in their daily practice. Sixth, how much of the ethical and scientific underpinnings of Environmental Law should be addressed and whether they should be delivered by in-house experts or by partnering with academic institutions. Seventh, how to combine classroom teaching with field activities (National Parks, contaminated sites, etc). Eighth, what type of international assistance, both financial and human, is available and what are the potential sources of funding. Ninth, how to balance the use technology in both classroom experience and remote presentations. Tenth, how feasible is e-learning in this area of law.
Before addressing some of these issues, the paper will briefly reflect on relevant global judicial developments regarding the different models of Court organization and cutting-edge themes in environmental jurisprudence. Among the emerging models, one can cite the establishment of Green Benches (600 just in China) and Specialized Divisions in Supreme Courts (again, the Supreme People Court of China and the Supreme Court of the State of São Paulo).
2) JUDGES ANO SOCIAL MEDIA: THE ROLE OF JUDICIAL EDUCATION - Og Fernandes
There is no denying that communication is a cornerstone of a democratic society. A free flow of communication enables emancipatory information, as it increases awareness and politicization of the individual, as well as of society itself, something intrinsically related to popular sovereignty.
Communication promotes debates, ideologies and ideas and empowers the citizen. However, in the context of the media, the product "information" is immediate, for errors and correctness, especially with the use of social media. Such issues are of particular importance in any political society, and with greater prominence in countries that are in the process of democracy consolidation, like Brazil, which, in the last few years, has been the scene of extremist political manifestations (though peaceful, in general).
In the middle of this state of affairs, we find the judges, at the same time "citizens", to whom are guaranteed the fundamental rights associated with freedom of thought and expression, and "public agents", from whom are expected impartiality, independence and integrity.
In principie, there should be no incompatibilities between these two socio¬ political conditions of judges. However, cases of inappropriate use of social media by judges and active (and inappropriate) participation in public political-party demonstrations have revealed the need to address this issue by judicial education institutions.
The point of departure is that the judge's fundamental freedom of expression should be guaranteed. Therefore, the challenge isto set limits in order to protect both the Judiciary and the rule of law. The general public expects and deserves independent and impartial judges: this is the limit of freedom of express1on.
Although this is a new area of judicial education, severa! training programs are now conducted by the National School of Judges of Brazil (Enfam) to prepare judges to deal with the use of technology and social media. But the difficulties are enormous. First, we have really to start from scratch. Second, in a continental country like Brazil, the expectations and social norms of what is acceptable vary tremendously. Third, we lack manuais and, in some cases, in-house expertise. Finally, we have not been able to expand our collaboration beyond our national borders in arder to benefit from the experience of other sister institutions.
At the end of the day, the use of social media by judges has become a new dimension of judicial ethics, particularly when it involves dissemination of false or inappropriate information.
In conclusion, the goal of the Paper is to present the positive aspects of experience of Enfam in educating judges on the use of social media, and at the same time, to share the difficulties that the institution has faced so far.
3) JUDICIAL TRAINING CHALLENGES OVER ABUSIVE USE OF SOCIAL MEDIA - André Gustavo Corrêa de Andrade
The technological progress of the last decades, with the exponential increase in the communication speed, the overwhelming amount of information available online and the increasing access of people to the Internet, through different devices, has allowed the most unprecedented exchange of messages, ideas, and knowledge in the history of humankind. It can be said that freedom of expression has never been so widely exercised.
In this context, social media has come to play a significant role in society, and is currently one of the main channels of communication. Its strength and importance in the contemporary world can be measured, for instance, by the fact that the messages exchanged in social media were considered decisive in elections held in several countries, overcoming the influence of the so-called mainstream media or traditional mass media.
New problems have appeared with the creation of social media. Among these problems, one can mention the broad dissemination of fake news, including the use of bots, to reach a large number of users in a short time. Fake news is today a serious threat to democracy, considering the influence that online media messages have on public opinion. Opinions and beliefs have taken the place of truth, creating the concept of post-truth.
Another critical problem related to the abusive use of social media is that of hate speech, which has become more disseminated, with the increasing of its harmful effects. Discriminatory or otherwise offensive expressions, previously restricted in space and time, have become global, over-dimensioning the violence of these manifestations. One can say that we are living in a "culture of hate".
The possibility of anonymity and the creation of false profiles provided by the Internet also brought an increase in offensive messages against personality rights, such as honor, image, and privacy.
The legal system should not be seen as a single way to reduce the complexity of problems involving the abusive use of social media. However, sanctioning measures can and should be used by the Judiciary to address these problems.
In this context, it is the responsibility of the Judiciary Schools to conduct training courses to help judges to deal with these and other problems involving the protection of individual and collective rights and the civil and criminal liability of internet service providers and users of social networks.
After addressing the crucial challenges in judicial training over abusive use of social media, it will be presented some solutions for the training of judges that were found in Brazilian judicial schools.
4) JUDICIAL TRAINING CHALLENGES IN ELECTRONIC PROCESS - Cintia Brunetta
The dematerialization/virtualization of judicial processes in Brazil and the adoption of various new technologies associated with it have already become a reality in the Brazilian Judiciary since, at least, 2003.
The electronic process was first envisaged as a means to free the judicial procedures from the limitations derived from the physical nature of the paper-based process. There was mention of the ubiquity of the process, elimination of the so-called useless time (time for pagination, notice and delivery of case files to the parties), and cost reduction.
Nowadays, artificial intelligence tools have been aggregated into the electronic process systems and other systems, especially that of the Brazilian public defender’s office. The integration between different virtual environments and Machine to Machine communication have become a reality. Lawsuits are being filed through computers and the electronic process systems do much more than just store data and check process deadlines.
In the first experiences in Brazil with the electronic process of law, the work flow used basically no automation, except for deadline checking.
Nowadays, numerous possibilities for system decision are being explored, with the development of simple ELs (EL= expression language). The machine is actually substituting humans in the various stages of notarial routine, including the making of sentences and official notices, besides everyday procedures and automatic subpoenas (not arranged by humans, but determined by the work flow defined in the system).
However, the education of magistrates and of law officials itself generally sees the dematerialization of the judicial procedures as a mere detail of the jurisdictional activity, ignoring the huge repercussions of technology in the forensic routine and probation realm.
Indeed, even though the tools are available and have been gradually implemented, the potential of the technological transformation now going on has the potential of being overlooked, jeopardizing access to Justice, the jurisdictional activity and the legal practice in general.
The repercussions of the virtualization of the cases inside and outside the judicial realm cannot be overlooked, and the only way to ensure this does not happen is by bridging the gap between jurists and information technology professionals.
The aim of this presentation is to face the judicial training challenges related to Pje, an electronic judicial process system conceived and developed by the Brazilian Judiciary as a system to be used in every Brazilian Court of Justice and bring some solutions that were found in some Brazilian judicial schools along the years.
5) INSTITUCIONAL CAPACITY CONSIDERATIONS Approaches to Partnering with Academic Institutions - Judge Jayme Weingartner
The purpose of this presentation is to share a pedagogical experience capable of approaching Law Faculties, responsible for preparing the students for the general exercise of legal careers and the Judicial Schools, focused on preparing judges.
In Brazil, Resolution No. 75 of the National Council of Justice (from 2009) brings the regulation related to public examinations to enter the career of judges in Brazil. Ten years later, the public selection of judges is strongly guided by theoretical and technical knowledge, but with difficulties in evaluating the ethical dimension and the practical experience of the candidates, usually from the middle and upper classes of the population.
In this context, the Court of Appeal of Rio Grande do Sul, based on initiatives observed in some states of the Federation (Santa Catarina, for example) and inspired by the formation of medical career, decided to adopt a training program - the Judicial Residence -. which aims to develop practical-legal skills, in addition to the theoretical knowledge acquired in the Faculties of Law.
The judicial residence demands five to seven years of theoretical studies and some basic practical training and must be carried out in a judge´s office, under the supervision of a judge.
The main goal is to prepare the law graduates for the selection to the Judiciary Career, consolidating their previous knowledge and improving the understanding related to the contents of humanistic training areas, essential for the complete judicial activity (Philosophy of Law, Legal Sociology, Judicial Psychology, Theory of Law and Politics, Ethics and Statute of Judiciary), as well as providing tools for practical learning, through direct contact with the jurisdictional activity.
The Judicial Residence, in this context, is an ethical-humanist learning and training activity subsidized through a scholarship, provided by the State Court of Appeal of the State of Rio Grande do Sul, without employment and without labor charges, performed by a student linked to the program , through and under the pedagogical guidance of the Superior School of Judges of Rio Grande do Sul.
Residents are evaluated through the quality of the activities performed (including sentencing / judgment projects), productivity, promptness, conduct and interpersonal relationships, as well as participation in several of parallel training programs, including online ones.
The program can be easily replicated or adapted to several realities. The scholarship allows economically disadvantaged candidates to dedicate two or three years exclusively to the preparation for the public selection of judges, increasing diversity. The exercise of real practical activities, with the guidance of judges and supervision of teachers of the School of Judges or Law School, fosters the development of specific skills to solve current and emerging problems that challenge the jurisdiction. Finally, ethical and humanistic values, as in the Bangalore Principles, can be experienced by the residents and improved, in a reciprocal learning, by the academy and the Judiciary.
6) MODERN APPROACHES TO CURRICULUM DEVELOPMENT - José Marcos Lunardelli
The Brazilian Judicial System is often criticized for an alleged lack of transparency to accurately assess the problems and difficulties encountered in its judicial work. Although this "information deficit" has changed considerably since the creation of the CNJ, the National Justice Council, which has carried out frequent surveys on judicial activity and has produced statistics to evaluate the performance of the Brazilian Courts, the impression that the Brazilian Judicial System is obscure persists and it is much commented, but little known.
In fact, data are cited without a critical analysis of its meaning and the methodology used for its extraction. This leads to the disclosure of opinions not always empirically confirmed, such as, for example, the idea that most judicial decisions lead to appeals; that tax enforcement is not effective in collecting tax credits; or that the majority of the social security benefits are granted due to appeals to the higher courts. Such belief is often shared by judges themselves, interfering with managerial policies adopted by the courts or reinforcing prejudices and misconceptions about the reality.
Within this context, we believe that much can be improved in the production of information about the problems faced by the Brazilian judges when deciding conflicts that are under their responsibility and that the Judicial Schools can play a relevant role in the diagnosis of the reality of the judges' work, contributing to increase the transparency of the Judicial System and the design of public policies for its management, while preparing judges for producing and critically analyzing empirical research on the activities developed by the Courts.
Therefore, it is fundamental to incorporate in the curricula of the Judicial Schools courses that enable judges to carry out empirical research in order to understand the judicial work based on scientific methods of observation of their professional reality. The Brazilian Judicial System also has a rich database containing relevant information on cases and parties that methodologically researched and analyzed can contribute for the improvement of professional practices and for greater effectiveness of the judicial work.
The purpose of this paper is to discuss the relevance of the Judicial Schools to enable judges to conduct and analyze empirical research that produces knowledge and information that may help to transform the courts work and increase the transparency of the Brazilian Judicial System, surpassing appearances and common sense.
7) JUDICIAL TRAINING CHALLENGES IN PRIVACY AND INTERNET - Rogério Fialho Moreira
As a form of privacy protection, the right to “be forgotten” has been developed, in preliminary terms, as the right of the person to have the records of an immature, debatable, dishonorable or degrading past erased from his public data, in a way that he can exclude pends or prejudices and get up and go forward, or simply the right not to have his past perpetually recalled by unauthorized strangers.
Even though it is true that the right to “to be left alone” (the right to be forgotten), may collide with other equally relevant values, such as the public interest in the transmission of certain information (especially when they concern the right to memory or to historical truth), it is important to remember that the possible solution to the conflict that may arise from the shock between the fundamental rights of the first (right to privacy) and fourth (right to information) generations or dimensions, passes through the technique of weighting (prevalence without exclusion).
A brief survey on the Internet reveals a significant increase in the filing of lawsuits seeking to guarantee the right to privacy. In these lawsuits, it is basically discussed whether or not the right to privacy should give way to publicity as a means of ensuring free access to information. There have been reports of several cases in which the privacy of public agents, for example, have suffered violations under the pretext of free access to information.
Although it is more common to find cases of offense to the right to privacy involving famous people, there is a wide range of possibilities of disrespect of privacy based on freedom of the press For example, there are several cases in which convicted criminals seek, often unsuccessfully, to exclude from Internet search engines information on crimes committed by them in order to facilitate their reintegration into the labor market.
In this line of thought, it is certain that the absence of objective criteria to limit access to information available on the Internet can often influence the occurrence of offenses against the right to privacy.
Indeed, the solution to these conflicts is not an easy task, especially when the legislation does not set parameters for the solution of demands that oppose the right to privacy and the right to information. The lack of such guidelines also contributes to similar situations being treated in an unequal manner, which has the effect of disfiguring the right to equality.
As there are no legal criteria to guide the judging of the conflict between the right to privacy and the right to information, the decision maker will inevitably have to rely on parameters used in similar cases to ensure equal treatment.
Therefore, in this presentation, after addressing some of the issues that emerge from the conflict between privacy and transparency/publicity, it will be discussed the challenges in judicial training related to the theme and some solutions that can contribute to the construction of clearer guidelines for solving these conflicts.
8) CREATING EMPATHY, LEADERSHIP, INNOVATION AND COMMUNICATION FOR BRAZILIAN FEDERAL JUDGES - Marco Bruno Miranda Clementino e Leonardo Resende Martins
The conference theme consists on the Federal Court of the 5th Region Judicial School’s didactic strategies for the purpose of creating empathy, leadership, innovation and communication skills among the Federal Judges on their initial judgeship training.
The Brazilian National Judicial Training School requires a minimum of 480 hours initial training for Federal and State Judges at the very beginning of their career before they start the effective judgeship in the Courts.
Brazil is a democratic but very unequal and complex country, with more than 100 million lawsuits overall, in a context that sometimes demand Federal Judges to decideup to one thousand cases a month. Access to justice is generally cheap and usually even free of cost. On the other hand, public policies may suffer from the lack of quality and social rights are often disrespected on public service. As a result, Brazilian citizens depending on federal welfare have no alternative but seeking protection at Federal Courts.
Unfortunately the concerns about Brazilian social complexity are rarely featured in Law School programs.Law students are taught on legislation, court precedents and legal theories, but have no opportunity to learn the abilities needed for enforcing the law in such a contradictory context. For that reason, Judicial Schools face the challenge of training new Judges to deal with these difficulties in a short time.
Public policy litigation is a remarkable feature in Brazilian Federal Courts. Cases about healthcare, retirement, education, social assistance and other welfare matters are part of the Federal Judges daily routine. However, the lack of economic resources reducing the public budget make executing judicial rulings sometimes problematic.
The challenge is even bigger for the Judges serving at the Northeast Region of Brazil, where some of the poorest areas in the country are located. The Federal Court of the 5th Region has jurisdiction over six northeastern States and its Federal Judges routine involves dealing with contradictions such as wealth and misery. They have the best qualifications and do work in very well structured facilities, but this level of excellence is sometimes not followed by parties or public agencies. Yet these same Federal Judges use advanced technology in the bench and are assigned to relevant economic civil and criminal cases.
Under this context, enforcing regular judicial authority is just not enough. Federal Judges at the 5th Region have to explore extraordinary abilities such as empathy, leadership, innovation and communication to overcome these challenges and exercise a creative democratic jurisdiction.
Due to the rising number of lawsuits, northeastern Federal Judges must use advanced technology in cases involving misery. Therefore, they have to communicate well in order to avoid the sacrifice of rights caused by digital exclusion.Communication also implicates the careful use of mediasto enlighten citizens about matters of public interest.
Federal Judges at the 5th Region also must innovate with the purpose of always finding new alternatives to execute their rulings and granting as many rights at the lowestcost. Leadership and empathy are important skills in this matter, especially on structural injunctions cases, whosesolutions depend on mobilizing numerous authorities through institutional cooperation.
In such a contradictory environment, empathy is a very special ability required. The Federal Judge must be able to identify when a public servant does not comply with a judicial ruling because of a mere lack of means and his conduct cannot be characterized as unlawful. Empathy is a key feature for judicial leadership in this context.
The proposed presentation aims to explore the training strategies employed by the Federal Court of the 5th Region Judicial School to develop these important abilities in Federal Judges, who are educated to balance them with the judicial ethical principles. They are trained to be innovative leaders at the same time as they have topreserve independence, impartiality, transparence and integrity. The presentation does not intend to explore the wholeinitial judgeship training program, but only the strategiesdedicated to creating empathy, leadership, innovation and communication skills. The main goal is to describe the strategies employed at some of the classes, including the active methods of teaching.
The subjects are organized in chapters, named as hubs, according to the sought-after skills:
I) Innovation Hub
a) Innovation and Design Thinking at the Judicial Power: A design thinking workshop in which the methodology is presented as a tool for innovation in courts organizational design and the solution of complex problems in judicial management.
b) Innovation and Sustainability at the Judicial Power: The thought of innovation and the work produced by the Judicial Laboratories of Innovation are presented as toolsfor seeking sustainable solutions considering the lack of economic resources.
c) Judicial Centers of Intelligence: The Judges are trainedto apply innovation on litigation prevention and precedent management.
d) Judicial Power Organizational Design: A critical approach of the judicial organizational design under the thought of innovation.
e) Administrative Organizational Structure Festival: A tech fair in which the administrative organizational structure and each department main innovations are presented.
II) Technology Hub
a) Exponential Justice: A strategic view of technology for judges, including debates on artificial intelligence, big data, analytics, machine learning, natural language processing.
b) Blockchain, smart contracts and virtual currency: Its use and legal implications.
c) Electronic documents and digital certification: Its use and legal implications.
d) Electronic Court Files: Its use and legal implications.
e) Technology in criminal investigation: Its use and legal implications.
f) Court Party: A tech fair in which all the Courts technology services are presented.
III) Empathy Hub
a) Inclusion of persons with disabilities: A critical debate about the rights of the persons with disabilities in which the educator is a person with Down Syndrome.
b) Miscarriage of Justice: A critical debate in which the educator is a real victim of miscarriage of justice.
c) The bus ride: The judge has to take a bus in poor area of the State capital and head to Court pretending to be a citizen seeking for a lawsuit information.
IV) Leadership and Management Hub
a) People management: Developing leadership skills in people management.
b) Time management: Developing time management skills with the use of technology.
c) Governance, leadership and the new judge: A critical debate on judicial governance and leadership and its challenges especially to young new Judges.
V) Communication Hub
a) Media Training: A complete media training involving how to address to journalists, the main skills to give good interviews on radio or TV, the use of social media and the tools to overcome a media crisis management.
b) Law, education, career: A parody of TED Talks in which the Judge is trained on how to speak in public events.
c) Humility: A class in which a regional popular music celebrity teaches the judges the skills to establish a good communication with poor citizens.
d) Webfolio: The judges build individuals webfolios in order to present their evolution as a result of the training. Each judge has 15 minutes to defend its content as a training closure.
e) Judith Samambaia Salgueiro: As a strategy to train judges while using social media, a fictional judge character was created as an instagram profile and the posts made in her name were shared and debated with the coordinators.
VI) Behavioral Hub
a) Escape Out: The judges participate in groups on aEscape Out game while observed by the coordinators and a psychologist. After the game, a group feedback is madein which the new Judges reflect about their reactions when acting under pressure.
b) Behavioral Profile Analysis: A workshop in which thenew Judges have the opportunity to discover their behavioral profile. Besides that, the training was held in a classroom specially designed to stimulate collaborative work and help applying active methods of teaching.
26 de setembro de 2019
