Now, new amendment: judgments of the panels of our courts left the noble courtrooms and the public and liturgical sessions. It has been created and established, in many courts, the so-called “virtual trial”. Judgment sessions are also moving to the world of the servers. In Federal Supreme Court, the innovation was regulated and applied – even with the disagreement of the minister Marco Aurélio, who left the presidency of the Commission of Regulation, upon approval of Resolution 587, of July 29, 2016. According to this ruling, internal interlocutory appeal and motions for clarification can be judged in virtual en banc court, at the discretion of the minister-rapporteur. The performance of the virtual judgments takes place through access, by ministers, to a system where the text of the rapporteur´s vote is entered. After vote is read, each of them agrees or disagrees, silently; by pushing a button.

The Superior Court of Justice shares innovation. Since the last year, internal interlocutory appeals and motions for clarification can be virtually judged, according to Judge-Rapporteur´s discretion. The performance is the same as the Superior Court of Justice, silently. Other courts also follow the same line.

This new form of judgment does not represent simple result from the electronic case or the advance in technology. Its consequences are much broader and drastic.

It is not only that judgment starts being performed in the privacy of the offices, without TV advertising (for good or bad). It ceases to exist a real discuss among judges. The discussion has been transformed into access to a system; in reading of votes; in yes or no, without face and details.

In this new system, which already removes much of the health publicity of the judgments by the courts, ministers can access the votes. And they can agree or disagree from Judge-Rapporteur.

But the ministers can only be in silence: the Resolution of the Federal Supreme Court provides that “it shall be considered agreeing with the judge-rapporteur the minister that does not express” within the term of 7 days.

If they remain in silence, it is because they would agree… The discussion is not silently; it is the silence itself.

It is not necessary anymore to minister votes, hears or discusses. Will it be really necessary for him to access the system?
The consequences of the principles of the panel seem evident. And we are not talking about only its most direct consequences: broad defense and double level of jurisdiction. Recalling Carnelutti, Badaró summarizes very well the advantages of the trial by a panel of judges, in which “each one informs the other its point of view, ‘what is resolved if one sees not only with its own eyes, but also with the others´ eyes and, therefore, an expanded view!” Therefore, “a judgment less subject to errors”.

But, unfortunately, this is not the path that has been chosen by the courts. The virtual trial seems to be another step, even slighter, to the currently most common tendency to adopt monocratic judgments.

Indeed, what lawyers have already been noticed was provided in figures by Folha de S. Paulo: in the beginning of this year, the newspaper published the article emphasizing that in 2016 the Federal Supreme Court had 18% less decisions by trial by a panel of judges (which fell from 18 to 15 thousand).

“Monocratization” of the courts (especially the Federal Supreme Court and the Superior Court of Justice) is the edge of an iceberg. Performed the monocratic judgment, obtaining the attention of the judging panel has become an almost impossible task, once the interlocutory appeals that should impede such movement are currently judged virtually.

It should not be forgotten that, by the virtual trial, lawyer ceases to have voice in the session of the judgment, even to clarify a point of the facts or to raise question of order. Judgment in session not only permits the discussion among judges, but also the participation of the lawyer, even in cases without oral statement – the Federal Superior Court provides professional intervention in article 124, sole paragraph, of its Internal Regulation.

But it is known that unconstitutionality haunts innovation. Thus, the rules of the virtual trial include the provision that, provided that lawyer so expressly requires, motions for clarification or interlocutory appeal return to “real trial”. But, as well as the ministers, lawyers that remains in silence also assent to have only a simulacrum of trial. However, one more petition to increase the electronic case records is the option we currently have to try to escape the trial without discussions and exchanges.

And, even it is possible that some discussion takes place, it will occur without lawyer´s participation. In the case of the interlocutory appeals, even when they are removed from the virtual trial system, the defense still has lost the right the make oral statements. Even when they are filed in cases that would permit the speak of the lawyers – this is one of the main rights stolen by the said “monocratization” of the judgment. But it is going to be topic of another future article.