The Federal Supreme Court (STF) had its first tie in judgment after the retirement of Minister Ricardo Lewandowski, in early April.
The score on whether or not the Court confirms the (provisional) injunction of Minister André Mendonça, who suspended all court proceedings dealing with the purchase of land in the country by foreigners, was left at 5 to 5.
Mendonça’s decision was given on April 26. The minister analyzed a request made by the Brazilian Bar Association (OAB). The magistrate said that there is a situation of “serious legal uncertainty” in the country on the subject.
Mendonça’s decision was submitted to the Court for judgment. The analysis was carried out in the virtual plenary, a format in which there is no debate. Ministers cast their votes in an electronic system. The analysis ended at 23:59 on Wednesday (3).
In cases like these, it will be necessary to wait for the proclamation of the result of the trial. According to the internal regulations of the Court, if there is a tie due to the absence of a minister, the result must be the opposite solution to the request.
A STF resolution also establishes that, in the event of a tie in the virtual sessions, the judgment will be suspended and included in the immediately subsequent virtual session, so that the votes of the absent members can be collected.
The definition will depend on the President of the Supreme Court, Minister Rosa Weber.
Scoreboard
Accompanying Mendonça’s understanding, to confirm the injunction, Ministers Edson Fachin, Dias Toffoli, Cármen Lúcia and Nunes Marques.
They followed the vote of Minister Alexandre de Moraes, to overthrow the injunction, Roberto Barroso, Luiz Fux, Rosa Weber and Gilmar Mendes.
There are two lawsuits in the STF that discuss the possibility of purchasing rural properties in Brazil by Brazilian companies that have majority participation by foreigners. The lawsuits were filed by the Brazilian Rural Society and by the Union together with the National Institute of Colonization and Agrarian Reform (Incra).
Actions began to be judged in the virtual plenary. The analysis was suspended due to a prominent request, which resets the vote count and determines that the case be taken to the physical plenary.
A 1971 law established restrictions on the purchase of land in Brazil by foreigners. The same norm extended the rule to Brazilian legal entities with a majority of the share capital in the hands of foreign persons or companies.
Wishes
For Alexandre de Moraes, who presented a dissenting vote and was followed by the majority, Mendonça’s decision “causes a situation of legal uncertainty substantially greater than the maintenance of the previous state”.
Moraes also said that there are no procedural requirements for granting an injunction.
The minister also understood that, if Mendonça’s injunction continued to be valid, it would represent a greater limitation to national companies with foreign capital to buy rural properties.
“The result that lies ahead with maintaining the precautionary measure will be that of a worsening of the current state of affairs, with negative consequences for the stabilization of economic relations. It should be noted that there is a disproportion between the suspension of all legal proceedings that deal with the receipt of the contested device and the intended purpose of safeguarding legal certainty, “he said.
For Mendonça, the situation reported by the OAB in the request, of serious legal uncertainty on the subject, justifies the suspension of all legal proceedings.
The minister cited the divergence of understandings on the case at the Supreme Court, according to the votes already cast in the actions. According to Mendonça, the positions are “diametrically opposed”.
On the one hand, the current of the then rapporteur Marco Aurélio (followed by Nunes Marques), voted to confirm the restrictions to Brazilian companies with foreign capital for the purchase of rural property.
On the other hand, the vote of Alexandre de Moraes sustaining that, after a constitutional amendment of 1995, there would no longer be differentiation between Brazilian companies based on the nationality of the capital.
“Now, the simple verification that there are two votes containing, both, solid legal foundations, which, however, lead to totally different results, already seems to me to be a clear indication of the legal uncertainty that hangs over the matter, since, having two legally plausible positions, there is a great risk that, until the Supreme Court Plenary reaches the final verdict, conflicting judicial decisions will arise, to the detriment of isonomy”, declared the minister.
Source: CNN Brasil
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