I. Introduction

Structural disputes play a crucial role in overcoming structural problems, transcending their individual sphere and focusing on combating systemic flaws that violate human rights and perpetuate situations of inequality and injustice on a collective scale.

Due to the complexity of structural problems and the transformative impact sought regarding this type of litigation, the judicial procedure adopted must necessarily be adapted to the foundational premises of this distinct form of seeking to overcome situations where reality does not conform to the law.

Considering this, as well as the current absence of regulation of structural litigation processes in the Brazilian legal system and the recent restructuring efforts within the internal organization of the Brazilian Federal Supreme Court to accommodate structural disputes, the following question arises: do the measures established by the Brazilian Federal Supreme Court in adjudicating structural disputes within its jurisdiction adhere to the guiding premises of structural processes?

Using the deductive approach method, the analytical procedure method, and the technique of bibliographic and jurisprudential research, this study aims to: 1. Understand the role of structural disputes in seeking to overcome structural problems, considering the specificities and characteristics of the structural process and decision that drive structural changes, as well as listing some elementary premises for the theory of structural process; 2. Explore how the Brazilian Federal Supreme Court has internally restructured its judicial procedure for handling structural disputes in the absence of regulation of structural processes in the national legal system; and 3. Identify, based on decisions under monitoring by the Center for Complex Structural Litigation - Nupec (ADPF 347, 635, and 709), whether the highest Brazilian court has incorporated the inherent premises of structural processes in adjudicating structural disputes within its jurisdiction.

II. STRUCTURAL DISPUTES, PROCESSES, AND DECISIONS: UNDERSTANDING CONCEPTS AND LISTING PREMISES FOR OVERCOMING STRUCTURAL PROBLEMS

In cases of infringement human and fundamental rights inherent in the way public and/or private institutions operate, there is an increasing trend of structural disputes being brought before the judiciary, demanding structural litigation aimed at effecting substantive transformations to address systematic violations of rights.

Intending to conceptualize this conflict of structural nature, França (2022a, p. 407, translation of the authors) advocates that: «Structural disputes are complex issues that, in order to be resolved, require the adjustment or implementation of public policies and/or the restructuring of state institutions that violate fundamental rights by the way they operate (or by being negligent).».

Thus, the utility of this type of demand in combating deficits in the provision of public policies is perceived, enabling the pursuit of the adequate enjoyment of rights through the proper provision of public policies. When the State fails to fulfill the implementation of public policies, the Judiciary, which is also responsible for respecting and enforcing constitutional precepts, can and should intervene to ensure the fulfillment of such objectives. This does not imply a substitution of the other branches of government, but rather ensuring what was determined by the constitutional legislator, since, otherwise, if inert to such deficits, the Judiciary would provide inadequate protection of rights, running counter to the prohibition of insufficient protection, given that it is its responsibility to ensure fundamental rights (Santos, 2021, p. 25).

Seeking to identify structural disputes, Puga lists seven characteristics most commonly used by doctrine to identify this type of litigation: 1) The involvement of various procedural agents; 2) Encompassing a group of affected individuals who do not directly participate in the judicial process but are represented by other members of the group or by third parties legitimized for this purpose; 3) Having a root cause of the problem that leads to a cascading violation of rights. Generally, this cause originates from a legal norm, a policy or practice (public or private), a social condition or situation that harms interests in a systemic or structural manner, although not always uniformly; 4) The operationalization of a state or bureaucratic institution that serves as the context for the rights-violating social situation or condition; 5) Asserting values of economic, social, and cultural nature and/or demands for rights; 6) Claims involving the distribution of goods and resources; and 7) The issuance of a judicial decision that implies a series of orders for continuous implementation and long-term execution (Puga, 2014, p. 45-46).

Given these constitutive elements, which highlight the inherent complexity of structural disputes, the judicial responses required will be equally complex. If only the removal of the violation is pursued, there will be a temporary and apparent solution to the problem; however, the situation may recur in the future (Vitorelli, 2022, p. 287).

From this point emerges the importance, in these cases, of the decision being distinct from the traditional model, with diffuse responses, of a prospective nature, involving the implementation of measures outlined in the decision that extend over time and aim to achieve truly resolving outcomes for the entire community (Fiss, 1979, p. 02). The judicialization of a structural dispute, therefore, «it seeks to eradicate the root causes of the conflict rather than merely addressing its resulting consequences. Therefore, a structural litigation process aims at the reconstruction of a particular state of affairs, rather than the elimination, repair, or punishment of isolated behaviors» (França, 2022a, p. 407, translation of the authors).

It is not uncommon for the Judiciary, when dealing with complex demands such as those related to the judicialization of public policies, to employ more traditional, quick, and individualistic resolution models, and thus, less effective in solving the structural problem. By overlooking a broader (structural) perspective that considers addressing the root causes rather than just the consequences, remedies capable of combating the structural flaw from a collective standpoint are not developed. This leads to a selective guarantee of fundamental rights only for those individuals who possess the knowledge and financial resources to pursue their interests judicially (França, 2022a, p. 400).

The inadequacy of the traditional process model (of a liberal-individualistic nature) for resolving structural disputes also stems from the fact that these actions do not aim to challenge an isolated act of violation and restore a status quo, but rather to question the institutionalization and reproduction of factors that lead to structural violation, as well as to demand the reorganization of the structure/agency in order to prevent the repetition of new wrongdoings with the same cause (França, 2022a, p. 405).

At this point arises the question: what is the appropriate judicial procedure to provide solutions for this type of demand? Drawing on the American theory - which inaugurates the debates on the theme of structural disputes - Owen Fiss (2017, p. 120) contends that structural litigation is the judicial instrument through which the judge, in the task of confronting a bureaucratic structure that undermines constitutionally protected values, undertakes the task of restructuring such institutional arrangements to cease the threat to the enjoyment of rights.

However, the definition of the procedural framework for conducting this structural process will depend on the nature of the dispute being addressed (such as prison overcrowding, public daycare slots, structural discrimination, police lethality, environmental crisis, among others). Additionally, it may be necessary to combine more than one structural procedure, it should generate a structural plan, its approval, and implementation, all within a highly democratic environment where dialogue between the branches of government and civil society is a reality (Jobim, 2022, p. 857).

In view of this, litigation for the treatment of structural problems demands a new judicial acting, but not only that, it also requires reformulations in the traditional mode of providing judicial protection, where the emphasis of the judicial procedure is imbued, in addition to a more active role, by empowering the parties, by intense cooperation in resolving the structural conflict, and by the broad participation and dialogue of those involved and civil society (Santos, 2021, p. 69-70).

The structural litigation, due to its complexity, will be resolved in stages, following a cyclical and spiral procedure. This model embodies the continuous process of construction and reconstruction inherent in resolving structural disputes through structural decisions. Consequently, such cases will not be resolved through a linear decision-making process; rather, they allow for setbacks, revisions, and alternative measures beyond those initially established (Vitorelli, 2022, p. 296-297).

According to Vitorelli (2022, p. 297), the cyclical and spiral path of the judicial procedure for resolving structural litigation¹ follows six stages of development:

1. 1. 1) understanding the characteristics of the litigation in all its complexity and conflict, allowing that different interest groups be heard, in respect to the polycentric nature of the litigation;
2. 2. 2) developing a plan to alter the functioning of the structure, in a document or through various agreements or court orders, with the goal of changing its undesirable behavior;
3. 3. 3) implementing this plan, either compulsorily or through negotiation;
4. 4. 4) evaluating the results of the implementation to ensure the social outcome intended at the start of the process, which is correcting the violation and achieving conditions that prevent its future recurrence;
5. 5. 5) revising the plan based on the evaluated results to address aspects initially unrecognized or to mitigate unforeseen side effects;
6. 6. 6) implementing the revised plan, which restarts the cycle, continuing until the litigation is resolved, meaning, in the context of structural litigation, until the social result deemed appropriate given the circumstances of the conflict is achieved. (Vitorelli, 2022, p. 297, translation of the authors).

On the other hand, Didier Jr., Zaneti Jr. and Oliveira (2020, p. 65) support for a bifurcated process in structural litigation, which initially recognizes and defines the structural problem, followed by the definition of the necessary restructuring plan. Alternatively, as defined by Arenhart (2013, p. 394), in structural processes, there will be cascading decisions, where, starting from an initial more generic and broad decision, subsequently, a chain of new decisions emerges, with more specific measures that advance the protection of the rights initially recognized. Synthesizing the concepts, structural litigation refers to complex problems that must be addressed through a structural process, in which the Judiciary issues a decision outlining structural remedies intended to resolve the situation of human and fundamental rights violations. In summary, structural disputes are complex problems that must be addressed through structural litigation, through which the Judiciary will issue a decision outlining structural remedies aimed at resolving the situation of infringement of human and fundamental rights. Within the theory of structural processes, there are various types of remedies, such as «structural injunctions» (from the U.S. Supreme Court), «unconstitutional state of affairs» (from the Constitutional Court of Colombia), and «meaningful engagement» (Constitutional Court of South Africa) (Machado Segundo & Serafim, 2022, p. 94).

Distinguishing these theories originated from jurisprudential developments of different Constitutional Courts, «structural injunctions» are created by the Supreme Court of the United States, serving as decisions aimed at remedying systemic problems of broad social impact. These cases typically involve constitutional interpretation and may affect the restructuring of governmental institutions or the implementation of public policies through judicial action. The development of structural injunction occurs in the American context as a judicial mechanism aimed at eliminating racial segregation in schools. It emerged from the practice of federal judges as they sought to implement the Supreme Court's 1954 decision in Brown v. Board of Education, which required the transformation of segregated school systems into unitary and non-racial systems (Fiss, 2022, p. 35).

However, due to its prominence, it ends up being used in other cases as well. According to Owen Fiss (2022, p. 35), «by the late 1960s lawyers and judges sought to use the lessons learned in school desegregation cases in other domains. As a result, the remedy crafted in school cases was employed to reform hospitals, police departments, housing authorities, and prisons.».

Considering that the structural judicial process aims to eradicate the ongoing threat to constitutional values through the issuance of structural injunctions, they act as a formal mechanism through which the Court issues directives on how this goal should be achieved, aiming to eliminate the possibility of persistence or recurrency of the violation in the future (Fiss, 1978, p. 11). Therefore, structural injunctions are not static; they may be subject to amendments based on the needs and factual development of the case, which means that:

the judge maintains a continuous relationship with the institution over a significant period of time. There is no easy, one-shot method of reconstructing an institution; a series of interventions are inevitable, for the defendants’ performance must be evaluated, and new directions issued, time and time again. Structural injunctions entail a process of continuous interaction (Fiss, 1978, p. 28).

Therefore, sanctions arise through supplemental decrees, «in each cycle of the supplemental relief process, the remedial obligation is defined with greater and greater specificity» (Fiss, 1978, p. 36). Thus, the judicial approach to the structural problem is prospective, which gives particular importance to this type of measure in structural reforms.

On the other hand, the «unconstitutional state of affairs» is a doctrine created by the Constitutional Court of Colombia aimed at addressing situations where there is widespread and systemic rights violations; that is, with the declaration of an unconstitutional state of affairs, the Constitutional Court of Colombia has been facing situations of serious human rights violations, which are typically addressed in comparative constitutionalism under the term «structural cases» (Garavito, 2009, p. 435). Given the extent of the problem, instead of focusing on resolving cases individually, the Court chooses to declare the «unconstitutional state of affairs» - based on certain criteria established by the jurisprudence of the Colombian Court itself² - acknowledging the deterioration of a particular sector and pressuring the public power to adopt comprehensive measures capable of correcting such violations, even benefit those individuals who were affected by the rights violations resulting from an «unconstitutional state of affairs», but who did not seek legal protection.

This can be observed in practice in the Sentencia T-025/2004 of the Constitutional Court of Colombia. On that occasion, the Court - reviewing and aggregating 108 tutela actions filed in 22 cities across the country by 1.150 displaced families - declared that the situation of internally displaced persons constituted an «unconstitutional state of affairs», resulting from the failure to fulfill the state's duty of protection (Garavito & Franco, 2015, p. 64).

In response, the decision not only acknowledged the human rights violations but also mandated that the effects of the ruling extend to all displaced persons, regardless of whether they had filed a tutela action. Seeking a comprehensive approach to the problem, the Colombian Court issued several orders specifically requesting the State to develop a plan to address the «unconstitutional state of affairs». The Court also committed to monitoring the State’s compliance with the provisions of the Sentencia T-25. To this end, it employed various tools, such as conducting public hearings and technical sessions, creating a special monitoring chamber for compliance, and issuing monitoring orders (Garavito & Franco, 2015, p. 66-67).

The declaration of an «unconstitutional state of affairs» has a practical purpose and, due to the legal and political nature of this doctrine, requires constant monitoring to ensure the effectiveness of the judicial mechanisms addressing the unconstitutional situation. Regarding the legal and political function of the «unconstitutional state of affairs», César Rodríguez Garavito (2009, p. 438) identifies its pragmatic nature as its main characteristic. The recognition of an «unconstitutional state of affairs» has a practical purpose, which essentially seeks to compel the state to create, implement, fund, and evaluate the public policies necessary to address the massive violation of rights that led to this declaration. It also requires a continuous monitoring process of all «unconstitutional states of affairs» to ensure that the ruling declaring it is effective and fosters collaboration among the various public and private actors involved in structural cases.

From the brief exposition of the doctrine of the «unconstitutional state of affairs», its suitability for addressing structural litigations is notable. Additionally, the primacy of judicial tools inherent to structural processes is identifiable, such as the enhanced institutional and social dialogue, the expansion of participation from various stakeholders in the process, the ongoing monitoring of compliance with the judicial decision after the issuance of the ruling, and the extension of the decision’s effects beyond the individual case.

Finally, it is necessary to explore the «meaningful engagement», a tool used by the Constitutional Court of South Africa, in which the Judiciary «functions as a driving force that removes political Powers from inertia, promoting a dialogue between judicial and administrative entities, including in this process the population segments affected by State inertia» (Serafim, 2019, p. 109, translation of the authors). In a manner very similar to the declaration of the «unconstitutional state of affairs» by the Constitutional Court of Colombia, the theory of «meaningful engagement» aims to foster the development of solutions through collaboration between public authorities and society. To this end, the Court acts as the coordinator of this dialogue, promoting cooperation between public authorities and social actors in the joint creation of structural measures designed to overcome the unconstitutional situation. According to Broocke (2021, p. 57, translation of the authors), this model of judicial action «brings forth a model of dialogic judicial activism, compatible with the idea of “experimentalist regulation”».

An example of a ruling by the Constitutional Court of South Africa in which the theory of «meaningful engagement» was applied is the Olivia Road case, which refers to a legal dispute involving approximately 400 residents of informal settlements on the outskirts of Johannesburg. These individuals faced the threat of eviction due to the poor and unsafe conditions of the buildings they inhabited, a controversy that reached the Constitutional Court of South Africa. Prior to the ruling, the Court issued a provisional order requiring the parties involved to make a «meaningful engagement» to resolve their differences and difficulties based on constitutional values, with the aim of improving the habitability of the buildings where they lived and jointly developing a concrete plan for permanent housing. This judicial order reconfigured the power dynamics between the occupants and the public authorities, as it recognized that this vulnerable population had rights, including the right to participate democratically in decision-making (Broocke, 2021, p. 56).

Once the commitment between the residents and the municipal government was established, the parties reached a partial agreement after months of dialogue. Through this agreement, the municipality committed to suspending the eviction and implementing measures to improve the buildings and the quality of life for the residents, including cleaning the residential areas, providing access to water, and ensuring basic sanitation (Casimiro, 2022, p. 32).

In this context, the Constitutional Court took on the responsibility of facilitating dialogue and managing the structural aspects of the process, as the encouragement of a «meaningful engagement» has expedited the implementation of obligations related to economic and social rights. This approach has proven effective in reconciling the various interests involved in decision-making, fostering proactive and honest dialogue among the parties. Additionally, the Constitutional Court plays the role of facilitator in managing structural procedures, defining the intended general objectives, fostering constructive dialogue, overseeing the judicial implementation of agreements, and setting deadlines for the provision of necessary information (Broocke, 2022, p. 45, translation of the authors).

Despite the similarities of the theories in South Africa and Colombia, there is a substantial difference between them. According to Broocke (2021, p. 56), unlike the «unconstitutional state of affairs» the declaration of «meaningful engagement» does not involve mechanisms for monitoring compliance with the provisions established in the ruling. In the Colombian context, such mechanisms serve as the basis for issuing supplementary measures during the enforcement phase of the judicial decision.

Considering the valuable doctrinal contributions of all these theories, thinking about a model of structural procedure that accommodates the local specificities of Brazil while encompassing the central ideas of structural processes expressed globally, several points - which do not exclude many others - deserve to be observed for the adequate resolution of structural disputes, such as: 1) Promoting broad social participation in the structural process and prioritizing judicial action guided by democratic experimentalism; 2) Critically importing experiences and structural remedies from abroad; and, 3) Incorporating mechanisms for monitoring and supervising the effectiveness of compliance with the actions set forth in the structural decision.

Regarding democratic experimentalism, this theory arises in American doctrine, with authors like Charles F. Sabel and William H. Simon, in an article titled «Destabilization Rights: How Public Law Litigation Succeeds», published by the Harvard Law Review in 2004. Seeking to adapt the theory to the Brazilian context, Lanza (2022, p. 181) argues that experimentalism is a judicial method aimed at implementing court decisions, based on premises such as consensus, broad participation of the parties and stakeholders, and ensuring transparency and publicity of the court proceedings. The author asserts the compatibility of the experimentalist method with the Brazilian legal system - especially after the enactment of the Civil Procedure Code of 2015 - by adopting the same logic that justifies the adaptation of structural process theory to the Brazilian legal context, considering that: «the underlying premises and doctrinal foundations are the same. After all, experimentalism is intended to be a model used "within" a structural process, meaning it is a part of that process.» (Lanza, 2022, p. 181, translation of the authors).

It is observed that, linked to democratic experimentalism, abroad civil society participation is an essential element in the development of the structural process, aiming to overcome antidemocratic objections and claims of lack of institutional capacity of the Judiciary to propel social transformations. In this strain, Jobim (2022, p. 862, translation of the authors) argues that the model of structural process theory «would, therefore, go through a democratic construction of procedural law that encompasses, initially, the possibility of dialogue between the Judiciary, Executive, Legislative, and Civil Society».

This space to participation and dialogue also significantly contributes to overcoming the view of structural judicial interventions as undemocratic and lacking the potential to effectively alter social reality due to judges' lack of technical knowledge. In this sense, Garavito and Franco (2015, p. 240-241), aligning with the proposals of democratic experimentalism and dialogical activism in reformulating the logic of judicial interventions in this type of process, argue that this stance has the potential to overcome these objections³.

When considering experimentalism as an adequate method for conducting the structural dispute process, it is important to note that the essence of experimentalism consists of: negotiation by the parties, with the possibility of integrating other interested individuals and experts into the deliberation; judicial intervention of the «rolling-rule» type, meaning a decision that establishes basic rules but has a provisional nature, so that such measures can be continuously reassessed, including the constant participation of the involved parties to evaluate the effectiveness of the adopted measures; and transparency, ensuring the publicity of the measures adopted based on the «rolling-rule», thus guaranteeing oversight of the compliance with the structural measures plan (Sabel & Simon, 2017, p. 60-71-73).

Therefore, the importance of incorporating democratic experimentalism into judicial practice is evident, which not only prioritizes maintaining a continuous dialogue between the Judiciary and political powers but also integrates into the judicial discussion the population affected by state negligence, fostering their broad inclusion in the deliberative process aimed at mitigating political omissions (Machado Segundo & Serafim, 2022, p. 99).

Moreover, this dialogical dimension will characterize the construction of the experimentalist decision, as it is crucial that alternatives, trials, and errors be consistently discussed among the involved parties:

whenever a particular case involves structural issues of public interest, the measures taken by the authorities and other involved actors must be experimental and complex. If there is no room for the cycle of “attempt → failure; attempt → success; attempt → discovery of new paths,” the desired solution can never be achieved. This is because matters related to public policies, by their nature, depend on unpredictable and contingent variables that can only be identified in practice and at the time of their implementation or adjustment (França, 2022b, p. 406, translation of the authors).

Although the model of democratic experimentalism and foreign structural remedies has been successful worldwide, the importation of these institutes must be done critically. As highlighted by Machado Segundo and Serafim (2022, p. 99), in the development of comparative studies, the application of the inductive principle must be scrutinized, meaning that the mere identification of some effective decisions in other jurisdictions ensures the effectiveness of the structural remedy in a context different from its origin. In this process, it is necessary to consider the context (legal/political/historical/social) in which that structural remedy was conceived, readapting it according to the needs of the new reality for which it will be implemented.

The risk of this uncritical transplant of foreign structural experiences is evident, as will be discussed further, by the presence of traits of this decontextualized inductive reasoning in the content of the proposal of the Brazilian Federal Senate Bill (Senado Federal) n. 736/2015, which seeks to incorporate, in its entirety and without critical readjustment, structural remedies from the Constitutional Courts of Colombia and South Africa.

The implementation of the structural decision needs to be monitored, either through oversight carried out by the Judiciary or by an expert panel responsible for it, in order to measure the progress and setbacks in addressing the problem and, if necessary, to request the Judiciary to review or establish new structural remedies. In this sense, according to Osuna (2015, p. 114-115), the implementation of the decision relies on periodic and public monitoring mechanisms. Thus, by preserving «su competencia sobre el caso después de la sentencia, las cortes dialógicas suelen dictar nuevas decisiones a la luz de los avances y retrocesos del proceso, y alentar la discusión entre los actores del caso em audiencias públicas y deliberativas».

Disciplining structural litigation within Brazilian legislation is no simple task. In addition to the points listed above, one can also mention obstacles related to the need for restructuring in the application of certain legal principles (such as the principle of demand, the flexibility of judicial procedure, and party cooperation), as well as a greater economic expenditure for funding, not only of the litigation process itself but also for the monitoring phase of compliance with structural decisions (Mossoi & Medina, 2020, p. 267).

If the absence of specific regulation has generated problems, paradoxically, inadequate standardization can be equally detrimental. This is because the rigidity of the procedural process in structural litigation, the incorporation of a procedural framework that binds the Court to establish overly rigid, rigorous, and unilateral structural remedies, and the lack of mechanisms that effectively monitor compliance with the decision, can jeopardize the effectiveness of structural litigation processes in Brazil.

Specifically regarding to procedural rigidity, it is emphasized that the procedure through which structural litigation unfolds needs to be imbued with flexibility. This is because, by strictly and beforehand delimiting procedural intricacies for handling this type of litigation, it would imply ignoring the fact that structural disputes have distinct objects, thus requiring varied procedures to address each case (Didier Jr, Zaneti Jr. & Oliveira, 2020, p. 53).

In contrast to criticisms directed towards regulation, minimal standardization specifically addressing structural demands could contribute to predictability and legal certainty in the application of structural judicial techniques (Bockenek, 2022, p. 32). It is worth noting the legislative progress in this regard with the enactment of the new provisions of Law n. 13.665/2018 introduction to Brazilian Law Statute (LINDB in Portuguese), which provides details on the precepts to be followed and applied by judges and administrators in their activities, especially in the context of disputes, conflicts, and structural processes. Among the aspects addressed in the LINDB, the consequentialism of judicial decisions and the establishment of public consultations as a tool for democratic participation in the judicial decision-making process stand out (Bockenek, 2022, p. 35).

It is evident that the theory of structural processes for the treatment of structural disputes still has a long way to go. Many aspects of the traditional model of civil procedural law still need to be reinterpreted (such as claims, parties, res judicata, standing, evidence, judgment, and enforcement) to accommodate the procedural requirements of structural litigation (Arenhart, 2013).

But not only that, beyond the reinterpretation of traditional legal institutes and legislation to accommodate this new procedure, there is a need for a shift in the mindset of those involved in structural litigation (with emphasis on the Judiciary, Public Prosecution Service, and Public Defender's Office). They must adopt new tools, techniques, and even a new way of thinking about structural litigation in their daily practices. As stated, the enactment of laws is useless in the absence of a genuine political determination to promote changes, accompanied by staff training, development of technical skills, and improvement of the appropriate infrastructure (Santos, 2021, p. 15).

After discussing some of the essential concepts and assumptions for understanding how the treatment of structural disputes should occur judicially, the next step is to analyze how the Brazilian Federal Supreme Court (STF) has dealt with this lack of minimal regulation on the subject and provided solutions to structural disputes within its jurisdiction.

III. THE ABSENCE OF LEGISLATIVE REGULATION OF STRUCTURAL LITIGATION AND THE NEED FOR INTERNAL RESTRUCTURING OF THE BRAZILIAN FEDERAL SUPREME COURT’S JUDICIAL PROCEDURES FOR HANDLING STRUCTURAL DISPUTES

With the increasing debates on structural disputes and litigation processes in Brazil since 2014, three bills⁴ have been accounted for with the intention of providing the groundwork for structural litigation in Brazil.

The pioneers in spearheading a proposal were the proceduralists Ada Pellegrini Grinover and Kazuo Watanabe, affiliated with the Brazilian Center for Judicial Studies and Research, who were the main responsible parties for drafting the text of Bill (PL) nº 8,058/2014, subsequently proposed to the Chamber of Deputies by Federal Deputy Paulo Teixeira.

The mentioned Bill aimed to implement a procedure for controlling judicial interventions in public policy matters by the Judiciary. However, despite not being its main focus⁵, it ended up touching on the topic of structural litigation, not only by foreseeing characteristic elements of structural disputes but also because structural litigation is an effective means of reviewing and correcting possible omissions and/or inadequacies in public policies. When public policies are provided inadequately, they restrict the enjoyment of fundamental rights, which can lead to a systemic violation of human rights.

However, in 2023, Bill nº 8,058/2014 was archived due to the end of the legislative term, failing to achieve significant success in the task of creating structural operational standards to guide judicial interventions in public policies.

In 2015, with the judgment of Pleading for Non-compliance with a Fundamental Precept (ADPF in Portuguese) nº 347 and the recognition of the «unconstitutional state of affairs» (ECI in Portuguese) in Brazilian prisons, concerns grew regarding the inappropriate use of the ECI by the Brazilian Federal Supreme Court. In 2015, with the judgment of ADPF 347 and the recognition of the «unconstitutional state of affairs» (ECI) in Brazilian prisons, concerns grew regarding the inappropriate use of the ECI by the Brazilian Federal Supreme Court. In view of this, Senator Antonio Carlos Valadares proposed Senate Bill nº 736/2015, aiming to establish requirements and limits on the judicial review of constitutionality (both concentrated and diffuse) of public policies by the Brazilian Federal Supreme Court, as well as to regulate the recognition of the «unconstitutional state of affairs» and the «meaningful engagement» of the Public Power towards the affected groups and those safeguarding rights through structural litigation (Senado Federal, 2015, p. 07).

Still, as emphasized by Casimiro, França, and Nóbrega (2023a, p. 442), the Senate Bill (PLS) has an evident flaw, which consists of attempting to combine distinct structural remedies, namely, the project seeks to blend the «unconstitutional state of affairs» (ECI) developed by the Constitutional Court of Colombia and the «meaningful engagement» originating from the South African Constitutional Court. There is no obstacle to the use of such structural remedies within the Brazilian jurisdiction, as previously observed, while the ECI recognizes systemic violations and pressures the State to issue solutions to structural problems, complementarily, the significant commitment emphasizes the need for the State to continuously fulfill rights through public policies and the dialogical integration of affected groups. However, the incorporation of these new institutions must occur critically and based on evidence, readapting foreign decision-making standards to the reality to which they will be transported, all based on an effective legal-cultural translation of the procedural model (Lima & Serafim, 2021, p. 209-210).

After numerous debates and years of research on the developments of structural litigation processes in Brazil, in 2021, the Ada Pellegrini Grinover Bill was proposed to the Chamber of Deputies (Bill n° 1.641/21, substitute for Bill´s 4.441/20 and 4.778/20)⁶, which deals with the new Law of Public Interest Litigation (Lei da Ação Civil Pública). The project is related to the theme, as the public interest litigation represents a valuable procedural instrument for seeking the resolution of structural disputes by the Judiciary⁷.

Although legislative proposals have not achieved effective progress in establishing minimum standards to be taken as guidelines for structural litigation, in practice, courts and judges in the country - especially within the scope of the Brazilian Federal Supreme Court (STF) - attentive to doctrinal developments and facing the emerging need for addressing structural disputes, have independently incorporated special parameters for the treatment of structural disputes through the avenue of structural litigation.

An example of this is Resolution 790/2022 of the Brazilian Federal Supreme Court (STF), dated December 22, 2022, through which the highest Brazilian court incorporated, for the first time, a differentiated procedure for the treatment of structural disputes within its jurisdiction. The Resolution establishes the «Center for Alternative Dispute Resolution of the Brazilian Federal Supreme Court» (Cesal/STF), which was integrated by the «Center for Coordination and Support for Structural Demands and Complex Litigation» (Cadec/STF in Portuguese) (Supremo Tribunal Federal, 2022, p. 02).

This center was responsible for assisting, when requested by the Rapporteur Minister of the case (article 4º), in resolving those structural demands and complex disputes within the jurisdiction of the Brazilian Federal Supreme Court. Therefore, actions referred to the care of Cadec/STF underwent a detailed analysis of the structural problem in order to define the necessary measures for the appropriate treatment of the issue, with goals and deadlines planned for the development of such measures (article 5º) (Supremo Tribunal Federal, 2022, p. 02-03)⁸

Furthermore, it is noticeable that Resolution 790/2022 has advanced in aspects that the previously analyzed Senate Bills do not thoroughly explore. This is the case, for example, with the provision of article 6º, which listed the possibility of periodic reassessment (within a maximum period of 6 months) of the Despite its significant contribution to the treatment of this type of litigation, the structure established by Resolution 790/2022 was abolished in 2023 during the presidency of Minister Luís Roberto Barroso, being replaced and enhanced by the creation of the Jurisdiction Support Advisory (AAJ in Portuguese), alongside which operates the Center for Complex Structural Litigation (Núcleo de Processos Estruturais e Complexos - Nupec in Portuguese)⁹. According to article 17º, unique paragraph, item I of the current Regulation of the Secretariat of the STF, Nupec is responsible for assisting in the identification and processing of structural and complex actions. Additionally, it is tasked with preparing opinions and technical notes on cases with economic and social impact, having the duty to integrate monitoring rooms for structural actions and, furthermore, assist in the development of indicators for monitoring, evaluation, and effectiveness of the measures adopted (Supremo Tribunal Federal, 2024a, p. 13).

The significant innovation brought about by the creation of Nupec is its role in developing indicators responsible for measuring the effectiveness of the measures established in the process, as well as its support in supervising and monitoring the implementation phase of the decisions, including the possibility of establishing monitoring rooms for the treatment of each structural process in a personalized manner (Supremo Tribunal Federal, 2023, p. 02-03).

The positive impacts of the renewed structure are already evident, particularly regarding transparency, an inherent characteristic of structural processes. This is demonstrated by the inclusion of a dedicated space on the Brazilian Federal Supreme Court's website for the Center for Complex Structural Litigation to record its ongoing and completed actions. Currently, with data from October 2023 to February 2024, the platform identifies Nupec's involvement in: 03 (three) processes in the monitoring phase (ADPF's 347, 635, and 709); 22 (twenty-two) technical hearings and meetings held; 16 (sixteen) technical notes issued, and 16 (sixteen) structural/complex decisions assisted by Nupec¹⁰ (Supremo Tribunal Federal, 2024b, <www.portal.stf.jus.br>).

However, it is important to highlight that even before Resolution 790/2022 addressed the issue within the scope of the Brazilian Federal Supreme Court, ordinary courts were already facing demands related to structural problems. This led them to seek, to the extent possible within the delimitation of their competencies, to create judicial treatment mechanisms that addressed the particularities of these actions in the absence of specific regulations and the inadequacy of the traditional model of bipolar litigation for addressing structural problems.

An example of this is the Regional Federal Court of the 6th Region, which, on October 6, 2022, even before the publication of Resolution 790/2022, incorporated into its Internal Regulations the creation of the Deputy Coordination of Structural Demands and Special Projects, to server as a support unit of the Court in structural demands (Tribunal Regional Federal da 6ª Região, 2022, p. 34).

Similarly aiming to provide a foundation for addressing structural demands within its jurisdiction - prior to the initiative of the 6th Regional Federal Court - the Conciliation System Coordination (Sistcon in Portuguese) of the 4th Regional Federal Court, through Ordinance 49/2022, dated January 31, 2022, created the Coordination of Support for Structural Demands, with the main objective assist jurisdictional units in addressing complex disputes, preferably through consensual means (Tribunal Regional Federal da 4ª Região, 2022, p. 01).

Like the Brazilian Federal Supreme Court, the 4th Regional Federal Court has maintained a website where it identifies structural processes submitted to Sistcon and that are assisted by the Coordination of Support for Structural Demands (currently with 9 ongoing demands). Additionally, the website highlights the pioneering nature of this initiative, its main objectives, and its prospects for the future of addressing structural demands¹¹ (Tribunal Regional Federal da 4ª Região, 2023).

A distinct approach between the procedures adopted by the 4th and 6th Regional Federal Courts is evident. While the normative of the 6th Regional Federal Court focuses on the creation of a coordination aimed at monitoring structural disputes within the judicial sphere, the ordinance issued by the 4th Regional Federal Court integrates a bias of primacy in addressing these demands preferably through consensual means, whenever possible to adopt this alternative. This dialogical dimension and the possibility of consensual resolution of disputes, both judicially and extrajudicially, are typical of structural processes and are closely aligned with the provision of article 2ª, III of Senate Bill nº 1.641/2021¹². In such a scenario, if the Senate Bill is approved, the 4th Regional Federal Court will already be practically familiar with consensual dispute resolution in structural litigation, as it already integrates a specialized center within the conciliation system dedicated to addressing structural demands. However, it will still require standards to guide its actions in the adversarial resolution of structural demands. Therefore, the replication of this experience by other courts is valid, to provide stakeholders with the option of consensual means for constructing solutions to structural conflicts.

In light of the aforementioned, it is evident that the absence of regulatory norms for structural processes in Brazil has not hindered their recognition by the Judiciary; on the contrary, it has led to intense developments for the protection of rights sought through structural litigation. It is undeniable that both the Brazilian Federal Supreme Court and lower courts have made efforts to develop internal regulations to assist court staff and judges in handling structural processes, recognizing that traditional judicial procedures established in civil procedural law are insufficient for this type of demand. Structural disputes require a complex reorganization of the functioning structures of the Judiciary. Moreover, such disputes demand the incorporation of new assumptions inherent in the theory of structural processes, which will be analyzed further below to identify whether they are incorporated into the practice of the Brazilian Federal Supreme Court.

IV. AN ANALYSIS OF THE INCORPORATION OF PREMISES INHERENT TO STRUCTURAL PROCESSES INTO THE BRAZILIAN FEDERAL SUPREME COURT’S ADJUDICATION OF STRUCTURAL DISPUTES

In the initial stage of this study, three elements were identified that, from the theoretical perspective adopted in this work, provide the foundations for the adequate development of structural processes: 1) Promotion of broad social participation in the structural process and primacy of judicial action based on democratic experimentalism and dialogue; 2) Critical importation of foreign structural experiences and remedies; and 3) Incorporation of mechanisms for monitoring and ensuring the effectiveness of compliance with the actions provided in the structural decision.¹³

Given these doctrinal elements and the restructuring carried out by the Brazilian Federal Supreme Court to accommodate structural disputes in the absence of minimum legislative standards on the subject in the Brazilian legal system, the aim of this topic is to explore whether the decisions of the Brazilian Federal Supreme Court that are under the monitoring of the Center for Complex Structural Litigation of the Brazilian Federal Supreme Court (ADPF 635, 709, and 347)¹⁴ have incorporated these assumptions.

IV.1. Claim of Non-compliance with a Fundamental Precept 347

ADPF 347 stands as one of the major milestones concerning the theme, as its decision has propelled academic legal production on structural disputes and the «unconstitutional state of affairs» (ECI) in the country. The case deals with the violation of human and fundamental rights resulting from the degrading situation of the Brazilian prison system, where overcrowding, homicides, torture, sexual violence, lack of minimum health and hygiene conditions, absence of water, lack of access to legal assistance, and control of criminal organizations over this environment make the execution of sentences and rehabilitation unattainable tasks (Supremo Tribunal Federal, 2015, p. 05).

The Brazilian Federal Supreme Court granted interim relief, acknowledging that the situation of the national prison system constitutes an «unconstitutional state of affairs» (ECI), resulting from the state's inaction in the face of the structural problem that causes widespread violations of fundamental rights. This situation requires the issuance of flexible, adaptable structural measures that undergo constant monitoring by the Brazilian Federal Supreme Court and other government agencies, as well as by affected groups of individuals (Supremo Tribunal Federal, 2015, p. 36).

In the decision, Rapporteur Minister Marco Aurélio further highlighted that the case constitutes a structural dispute, and in this context, there arises the need for the implementation of public policies or the adoption of additional corrective measures for existing public policies that fail to achieve their intended objectives. These actions include the allocation of budgetary resources, adjustments in institutional arrangements, and new interpretations and application of criminal laws. In summary, it is imperative to promote a comprehensive set of structural changes, which encompasses the broad participation of government authorities, due to their systemic responsibility in the face of the shortcomings of state actions (Supremo Tribunal Federal, 2015, p. 29).

Analyzing of the presence of the assumptions of structural processes in the decision, we begin with the examination of the importation of foreign structural experiences and remedies, more specifically, the importation of the experience of the Constitutional Court of Colombia (CCC) with the structural remedy of the «unconstitutional state of affairs» (Albuquerque & Serafim, 2020, p. 649).

Colombia confronted, and continues to confront, structural problems like those of the Brazilian prison system, prompting the CCC, through Judgment T-153 of 1998, to implement judicial measures aimed at reformulating prison policies in the country. However, the stance of that Court proved to be insufficient, resulting in a decision of a palliative nature,¹⁵ due to the excessive rigidity and unilateralism of the measures imposed, the failure to address the root cause of the problem, and the absence of mechanisms to monitor compliance with the judicial decision.

Seeking to apply the ECI for the restructuring of the Brazilian prison system, the Colombian case of Judgment T-153 is used by the petitioner of ADPF 347 as an argument to justify the application of this ECI to the case. However, it overlooks two issues: 1) the unsatisfactory results and failure of the decision model to provide solutions to the problem within the Colombian context; and 2) the attempt to uncritically transplant the theory, aiming at the principle of induction, without rigorously adapting the model of structural remedy to the national legal and factual reality. Additionally, the petitioner of ADPF 347 made identical requests to those requested in Judgment T-153 (Machado Segundo & Serafim, 2022, p. 102-103).

It is important to note that authors such as Machado Segundo and Serafim (2022, p. 103), Magalhães (2019, p. 31-32), and Vieira and Bezerra (2016, p. 221) have a highly critical view of how the ECI was recognized by the Brazilian constitutional jurisdiction. In the case of ADPF 347, «it becomes clear that the importation of the ECI can occur uncritically, based on inductive reasoning, without proper observation of the context in which it was produced and without the necessary accommodations to the Brazilian reality» (Machado Segundo & Serafim, 2022, p. 104, translation of the authors).

Focusing on the fact that the ECI was incorporated into the decision without developing an institutional redesign or assertive criteria for identifying an ECI, Magalhães (2019, p. 31, translation of the authors) argues that the content of ADPF 347 reveals

that the characterization of the assumptions justifying the declaration of an ECI (unconstitutional state of affairs) in Brazil is inconsistent; the precautionary measures granted are ineffective, there is an unjustified delay in the judgment of the merits, the authorities have provided narrow responses that follow the same nature as traditionally developed policies in Brazil, and the ability of a supreme court to change a factual state of affairs through law is questioned.

Despite this, there is no doubt about the adequacy and importance of recognizing and applying the ECI to solve the structural problem of prisons; however, according to Vieira and Bezerra (2016, p. 221, translation of the authors), the way this doctrinal grafting is done can jeopardize the effectiveness of the theory, since:

The acceptance of the "Unconstitutional State of Affairs" by Brazilian doctrine and jurisprudence, without considering the urgent need for a profound institutional redesign - not only of the STF's decision-making process but also of our prison policy, through the creation of new mechanisms for deliberative participation, monitoring, and social control - ultimately undermines it. Furthermore, it should not be overlooked that, regardless of the origin, the incorporation of new ideas and legal mechanisms requires substantial preliminary social and institutional support to ensure their operability and effectiveness.

On the other hand, the decision acknowledges the need for dialogue, not only institutional but also with civil society. However, despite catalyzing this dialogue and overseeing the effectiveness of the measures to be adopted to correct public policies, the Brazilian Federal Supreme Court does not assume the responsibility of delimiting the specific content of these policies or detailing the means necessary to achieve the intended result. Its role is limited to acting as an «institutional coordinator» of changes in public policy, incorporating an «unblocking effect»¹⁶ (Supremo Tribunal Federal, 2015, p. 37).

In his vote, Rapporteur Minister Marco Aurélio delimits the responsibilities of the Court¹⁷ in the face of the unconstitutional state of the prison system. The Minister argues that it is the Court's responsibility to awaken the other public authorities from a state of inertia, to encourage the implementation of public policies, to promote political and social dialogue about the situation, as well as to monitor the process of implementing the measures, in order to ensure their effectiveness in solving the problem. Additionally, in support of the experimentalist model, the Rapporteur Minister states that: «flexible orders under monitoring prevent judicial supremacy while promoting the institutional integration envisioned by Minister Gilmar Mendes, formulated within the framework of cooperative constitutionalism» (Supremo Tribunal Federal, 2015, p. 37, translation of the authors).

Considering this point, a strong alignment with the experimentalist approach to structural litigation is observable, as the Brazilian Federal Supreme Court encourages political deliberation among the parties and civil society about the problem, establishes flexible measures, and takes responsibility for monitoring and measuring the effectiveness of the solutions implemented.

Regarding democratic experimentalism and the incorporation of mechanisms to monitor and ensure the effectiveness of the actions prescribed in the structural decision, the decision mentions that it is the responsibility of the Brazilian Federal Supreme Court to coordinate the actions of government agencies in implementing the measures, as well as to evaluate the effectiveness of the solutions adopted (Supremo Tribunal Federal, 2015, p. 36). In a new decision issued on October 4, 2023, the Brazilian Federal Supreme Court recognizes that the structural litigation process will have a solution following the two-phase model - in line with the model proposed by Didier Jr., Zaneti Jr., and Oliveira (2020, p. 65) - endowed with flexibility and extensive institutional and social dialogue¹⁸ (Supremo Tribunal Federal, 2023, p. 05).

With the purpose of mitigating the situation, the Brazilian Federal Supreme Court established that the Union, the States, and the Federal District, together with the National Council of Justice (Conselho Nacional de Justiça - CNJ in Portuguese), should jointly develop (within six months) and execute (within 3 years) plans aimed at solving the structural problem. Such plans should be submitted to the approval of the Brazilian Federal Supreme Court, and their implementation would be monitored by the CNJ, with additional supervision by the organs of the Brazilian Federal Supreme Court (Supremo Tribunal Federal, 2023, p. 331-332).

Based on the central axes defined by the Brazilian Federal Supreme Court decision for the elaboration of the National Plan to Address the «unconstitutional state of affairs» in Brazilian prisons¹⁹, On April 29th and 30th, 2024, the National Council of Justice (CNJ), through the Department of Monitoring and Oversight of the Penitentiary System and the System of Execution of Socioeducational Measures of the National Council of Justice (DMF in Portuguese), and the Ministry of Justice and Public Security, through the National Secretariat of Penitentiary Policies (SENAPPEN in Portuguese), held a public hearing to gather proposals to support the elaboration, implementation, monitoring, and evaluation of the National Plan required by ADPF 347.

The hearing took place in both physical and virtual environments, allowing interested parties to participate through prior registration. The target audience included institutes, research groups, and laboratories linked to higher education institutions, civil society organizations, social movements, associations of family members, professional associations, entities representing the Judiciary and the justice system, the Executive Power, and the Legislative Power, as well as any interested individuals. The next step is the elaboration of the plan, its approval by the Brazilian Federal Supreme Court, and, if approved, it will undergo a monitoring phase of its implementation, which remains under the responsibility of the CNJ and the STF (Conselho Nacional de Justiça, 2024, <www.cnj.jus.br>).

Despite the criticisms, it is possible to perceive articulations within the Brazilian Federal Supreme Court aimed at learning from and reusing foreign experiences (although often not in the most appropriate manner, through an uncritical transplant of structural remedies instead of conducting a cultural legal translation of these models), seeking to incorporate new models of judicial protection in order to adapt judicial procedures to provide better responses to structural demands. Similarly, there is a primacy for institutional and social dialogue in the process of building adequate and effective judicial solutions, as well as a latent concern with the implementation phase of the decision, one of the crucial points of experimentalist theory.

IV.2. Claim of Non-compliance with a Fundamental Precept 635

The Pleading for Non-compliance with a Fundamental Precept 635 arises from the situation of violation of human and fundamental rights due to violent police raids and high lethality in the favelas of Rio de Janeiro. It is important to highlight that this situation has already been previously addressed by the Inter-American Court of Human Rights (IACHR) in the judgment of the Nova Brasília Favela vs. Brazil Case (2017)²⁰. On that occasion, the IACHR ordered the Brazilian State to develop a plan to reduce police lethality, a measure that was not carried out. Daniel Sarmento and João Gabriel Madeira Pontes, lawyers for the PSB, which is a party to the «ADPF das Fevelas» (as it became popularly known), point out that in the face of this recalcitrant stance in complying with the IACHR's decision, concrete action by the Brazilian Federal Supreme Court is necessary, as it has greater proximity and capacity to demand action from the State, «especially when considering the weakness of mechanisms for enforcing international decisions. Moreover, in human rights matters, the relationship between international and domestic jurisdiction should be one of complementarity and synergy, rather than reciprocal exclusion» (Sarmento & Pontes, 2023, p. 192, translation of the authors).

In the ruling of ADPF 635, the mentioned plan is referenced and demanded by the Brazilian Federal Supreme Court, engaging in a genuine dialogue and control of conventionality concerning the inter-American judicial precedent. The decision's summary of ADPF 635 states that:

2. Although there was already an order from the Inter-American Court to adopt a plan for reducing police lethality, the delay in complying with the decision was exacerbated by the restriction of police operations, as the State did not have a standardized proportionality framework for defining cases of absolute necessity. This justifies the reassessment of the precautionary measure to require the development, with the essential participation of civil society, of a plan that includes objective measures, specific timelines, and the allocation of the necessary resources for its implementation (Supremo Tribunal Federal, 2022, p. 03, translation of the authors).

ADPF 635, addressing the situation of structural violence in the favelas of Rio de Janeiro²¹ is a clear example of a decision by the Brazilian Federal Supreme Court that encompasses the inherent assumptions of structural litigation, pointing towards a trend of using the method of democratic experimentalism by the highest Brazilian court for the resolution of structural disputes. It adopts a judicial approach that recognizes the complexity of structural processes and does not remain restricted to rigid and predefined jurisdictional approaches, incorporating experimental decision-making techniques adapted to the needs of the factual situation. In fact, in the decision under consideration, the structural nature of the demand was expressly recognized, as stated in a passage from Justice Gilmar Mendes' opinion, when he asserts that the action «It presents all the characteristics of a structural action. Indeed, in constitutional doctrine, structural actions are understood as those aimed at correcting structural failures in public policies that violate the fundamental rights and guarantees of a significant number of people» (Supremo Tribunal Federal, 2022, p. 494-495, translation of the authors).

The Ministro Luiz Fux, attentive to the specificities of judicial treatment of structural litigation, highlights the inherent particularities in handling this type of demand, stating that:

The case under review qualifies as structural litigation, which requires: (1) a more flexible decision-making technique based on dialogue and cooperation; (2) assigning the responsibility for formulating the plan to the government, with a set deadline and allocation of resources, combined with the Court's retention of jurisdiction to dynamically monitor the progress of aligning the public security policy of Rio de Janeiro with the Constitution and the laws of the country. Finally, the Court's monitoring of adherence to the guidelines set forth involves: (1) periodic submission of information by the involved authorities; (2) public hearings (Supremo Tribunal Federal, 2022, p. 520, translation of the authors).

From the passage, one can extract the experimentalist tendency of the Brazilian Federal Supreme Court's decision, as it embraces central ideas of the theory, such as the issuance of flexible and provisional judicial measures (subject to supplementation or modification according to the factual situation), the participation and constant dialogue of interested parties, and the continuous review and monitoring of the effectiveness of the established judicial measures, all underpinned by transparency towards the general society, through the holding of periodic public hearings and the primacy of ensuring effective public participation in all phases of the structural process.

Therefore, it is noted that the judicial management of this structural dispute has been carried out through a process characterized by broad participation and social oversight of the parties involved and interested in the cause, especially through public hearings (held on 04/16/2021 and 04/19/2021) designated with the aim of discussing the plan to reduce police lethality and gather suggestions from the affected civil society (Supremo Tribunal Federal, 2022, p. 24-25).

Although the intervention of amici curiae and the contributions of civil society in these public hearings²² are often not strongly considered as arguments supporting the decision, this is not the case in ADPF 635. In it, it is possible to observe that the arguments collected during the public hearing are reflected in the votes and decisions, highlighting the protagonism of the affected population in the constitutional action of the ADPF das Favelas, as well as the active participation of the amici curiae in the process, contributing, including the formulation of requests (Sarmento & Pontes, 2023, p. 193).

It is observed that, beyond the protagonism and empowerment of the population, this process entails a level of approach and dialogue between society, groups of affected individuals, and public/police institutions, as the decision requires the government to provide the elaboration of a plan aimed at reducing police lethality, which will subsequently be reviewed by the committe of the Judicial Observatory on Citizen Police, whose creation was proposed by the Brazilian Federal Supreme Court (STF) - linked to the National Council of Justice (CNJ) - and which should include representatives from the STF, the police force, civil society, as well as researchers, who will be responsible for «to assist the Court in evaluating the plan to be presented by the State of Rio de Janeiro and, as such, to propose solutions and adjustments that may be necessary» (Supremo Tribunal Federal, 2022, p. 68-528, translation of the authors).

In addition to dialogue, the judgment also highlights the necessity for the Brazilian Federal Supreme Court (STF) not only to issue flexible judicial measures aimed at remedying the situation but also to supervise the compliance with the decision and the effectiveness of the measures throughout their implementation (Supremo Tribunal Federal, 2022, p. 126).

Seeking to carry out this monitoring and continuous reassessment, another noteworthy aspect is the referral of the case, in November 2023, for its ongoing monitoring by the Center for Complex Structural Litigation (Núcleo de Processos Estruturais e Complexos - Nupec) of the Brazilian Federal Supreme Court (STF), tasked with preparing opinions and technical notes (indeed, it already did so in 2023, by appending technical note 05/2023/NUPEC/SG/STF)²³, compose any monitoring panels and assist in monitoring, evaluating, and ensuring the effectiveness of the judicial measures mandated.

In a passage from Justice Gilmar Mendes' vote, it is also possible to observe the concern of the Brazilian Federal Supreme Court in recognizing as an elemental characteristic of this type of demand the issuance of flexible, adaptable judicial decisions - further granting of measures initially denied points to this flexibility of the decision²⁴ - and subject to constant monitoring and reassessment of their possible impacts (desired or undesired):

It is worth noting that, in structural actions, the Supreme Federal Court has adopted a cautious stance, allowing for the eventual revision of decisions. Initially, the judgment occurs in the context of a precautionary measure, with the merits remaining open, including the possibility of public hearings and debates. In this specific case, the Plenary endorsed the precautionary measure and is now considering its expansion in declaratory motions (which also highlights a reconfiguration of declaratory motions in structural actions). Therefore, the case will remain open for ongoing review of its consequences. (Supremo Tribunal Federal, 2022, p. 496, translation of the authors).

In a critical analysis of the Brazilian Federal Supreme Court's (STF) positions in the Pleading for Non-compliance with a Fundamental Precept (ADPF), and aiming to identify the essential points for the successful transformation of the unconstitutional reality, Lopes highlights that:

The ADPF of the Favelas, as a strategic litigation aimed at social transformation through a structural process, can be a suitable and valid means (legally and democratically) and effective (socially) for overcoming the unconstitutional state of affairs related to institutional violence in Rio de Janeiro. The essential conditions for this are the retention of jurisdiction over the execution of the plan and the creation of monitoring mechanisms for the implementation of precautionary measures and indicators to assess the progress of the plan in overcoming the ECI. The Court should also seriously consider adopting incentives to encourage cooperation and sanctions to overcome potential resistance (Lopes, 2023, p. 266-267, translation of the authors).

At this point, regarding the mechanisms for monitoring the progress of the implementation of established measures, it is noted that not only the creation of the Judicial Observatory for Citizen Police, but also the internal restructuring of the Brazilian Federal Supreme Court (STF) and the establishment of the Nupec, serve this supervisory purpose, both contributing to a greater likelihood of effectiveness in the compliance phase of decisions issued within the scope of structural litigation processes. In light of the above, one can perceive the situation as a «state of unconstitutional affairs» a recognition evidenced in the vote of the Reporting Justice Luiz Edson Fachin (Supremo Tribunal Federal, 2022, p. 124-126).

Despite such recognition being based on ADPF 347, it is evident that the handling of the structural remedy in ADPF 635 occurred differently. As previously argued on other occasions, and reaffirmed in this analysis, in ADPF 635, the Brazilian Federal Supreme Court (STF) did not perform an uncritical transplant of the ECI model from the CCC but rather a legal-cultural translation of that procedural model. This involved using foreign standards, adapting them, and incorporating other treatment strategies necessary given the specific case and the Brazilian reality. These included the creation of the Judicial Observatory on Citizen Police, the holding of public hearings, the request for the development of a plan to reduce police lethality by the State, and the referral of the case for constant monitoring by the Center for Complex Structural Litigation (Nupec) of the Brazilian Federal Supreme Court (STF).

Therefore, it can be observed that, in addition to encompassing the basic assumptions of structural litigation, such as deliberation among the parties, the expansion of institutional dialogue with civil society, the experimentalist approach, and mechanisms for monitoring the decision, the decision also adequately incorporates a reinterpretation of the ECI. It learns from the model developed by the CCC but readapts it to the local reality according to the specific needs, which was not observed previously in the decision of ADPF 347.

IV.3. Claim of Non-compliance with a Fundamental Precept 709

The Covid-19 pandemic has posed significant challenges regarding the protection of the right to health of minorities and groups in vulnerable situations, especially indigenous peoples, who remained exposed to a higher risk of contagion due to their forced contact with invaders of indigenous territories and their low immune resistance. This situation was addressed in ADPF 709, which recognized that the violation of the right to health of the indigenous population stemmed from the lack of territorial protection of those peoples, seeking to repel it by imposing the duty to create a plan that imposed sanitary barriers, enabling the containment of illegal invasions of territory and, consequently, reducing the exposure of indigenous peoples to the Covid-19 virus (Supremo Tribunal Federal, 2020, p. 06).

In the context of precautionary measures, the Brazilian Federal Supreme Court (STF) granted structuring measures aimed at isolated or recently contacted indigenous peoples, determining the elaboration of a plan to establish sanitary barriers preventing the entry of third parties into these inhabited territories. Additionally, the installation of the Situation Room was ordered, which will monitor the planning of sanitary barriers and assist in managing pandemic response actions in indigenous territories. This Room will be composed of representatives from indigenous communities, the Federal Public Defender's Office, and the Office of the Attorney General. For indigenous peoples in general, the Court required the development of a Covid-19 Response and Monitoring Plan for Indigenous Peoples to prevent and reduce virus transmission (Supremo Tribunal Federal, 2020, p. 06).

The Brazilian Federal Supreme Court (STF) further emphasized that the elaboration of the Covid-19 Response and Monitoring Plan, which would subsequently be subject to the Court's approval, should involve intense participation and dialogic cooperation between competent public authorities and representatives of indigenous peoples. Additionally, this process should include the participation and contribution of the Public Prosecutor's Office, the Public Defender's Office, the National Council of Justice, the National Human Rights Council, and other institutions capable of offering different perspectives for the improved development of the plan (Supremo Tribunal Federal, 2020, p. 50).

It is notable that, in the judgment, there is a clear influence of the experimentalist bias, as well as the incorporation of a dialogical logic that guides the structural process, through a high concern to expand the dialogue between the public authorities, the affected group, and other actors with technical knowledge on the subject. In this regard, Mello (2024, p. 371, translation of the authors) states that the decision promoted «the creation of a microinstitutionality aimed at fostering dialogue among such actors and the development of structural measures that would inevitably be endowed with experimentalism».

On the other hand, Leal and Alves (2023, p. 72-73-74), despite identifying the presence of characteristic features of structural judgments (broad dialogue, participation of indigenous peoples, public hearings, and integration of amici curiae), disagree with the structural nature of the measures established in the STF decision, arguing that the provision for the installation of health barriers «it lacks the power to address the structural causes that lead Indigenous peoples to structural discrimination. This is a temporary measure due to the pandemic, which is why the granted protection should not necessarily be seen as a structural measure» (Leal & Alves, 2023, p. 66, translation of the authors).

However, this does not compromise the experimentalist nature of the decision, which is evidenced by factors such as the novelty of the measures adopted, the intense debates that were part of the phases of elaboration of the plans to address the situation, and the adaptations that occurred in them, even after they had been approved by the Brazilian Federal Supreme Court, because:

Several versions of the plans were presented until they achieved partial approval by the Court. Subsequently, the Court also ordered the development of a monitoring plan, including the creation of indicators to measure the execution of the original plans. Later on, new precautionary decisions were issued in specific situations where it became necessary to reinforce the Court's decisions (Mello, 2024, p. 371, translation of the authors).

Therefore, in ADPF 709, traces indicating the influence of the American experimentalist approach of Sabel and Simon can be observed, such as the concern for engaging in dialogue with the parties involved - exemplified by the creation of a Situation Room, indicating the Brazilian Federal Supreme Court's care in integrating the affected group in the process of devising solutions to the problem -, the establishment of emergency measures to protect the vulnerable group, and the promotion of transparency in the actions of the Public Administration (Casimiro, França & Nóbrega, 2023b, p. 286).

It is noticeable that the Brazilian Federal Supreme Court (STF), mindful of the recommended approach for conducting structural litigation, did not assume the responsibility of elaborating plans and establishing strategies for reformulating indigenous health public policies. Instead, it merely stipulated that the stakeholders engage in discussions and propose these changes, subsequently homologating them. In this manner, the STF did not take on roles outside its expertise, acting solely as a facilitator of dialogue and an unblocker, while remaining responsible for monitoring the implementation of the plans set forth by the parties, ensuring their effectiveness (Mello, 2024, p. 370).

Regarding the monitoring mechanisms for the implementation phase of the decision, the Plan for Confrontation and Monitoring of Covid-19 for Brazilian Indigenous Peoples, and oversight of actions related to the eviction of indigenous lands, it is noteworthy that this task has been periodically carried out by the Ministry of Indigenous Peoples. The ministry issues quarterly monitoring reports for ADPF 709, and as of October 14, 2023, 10 reports had already been issue (Ministério dos Povos Indígenas, 2023). This oversight also falls within the purview of the Brazilian Federal Supreme Court, which, by forwarding the action to the Center for Complex Structural Litigation (Nupec) of the STF, has been monitoring the development of the strategies established in the plan to combat the structural problem²⁵, overseeing its effectiveness (Supremo Tribunal Federal, 2024b).

In terms of importing foreign theories or structural remedies, it is noted that despite the mention of jurisprudential experience from Colombia²⁶ and the similarity with structural measures of U.S. origin, there was no explicit incorporation of these models of foreign structural remedies in the case of ADPF 709.

Therefore, from the analysis of the decision, it is inferred that the judgment observed the prerequisites of promoting broad social participation, prioritizing collaborative dialogue among parties and stakeholders in the construction of plans to address the issue. Notwithstanding the absence of clear indications of a distinct incorporation of foreign structural experiences/remedies, the decision has an experimentalist bias, as it not only gives primacy to more flexible measures, subject to reevaluation and reformulation, but also lists atypical strategies for resolving the problem, always based on debate and active listening to the affected group. It should also be noted that the structure of the Brazilian Federal Supreme Court (Nupec) and the efforts of the Ministry of Indigenous Peoples have met the need for monitoring and overseeing the implementation of the Covid-19 Response and Monitoring Plan, ensuring the effectiveness of the decision.

V. CONCLUSION

The structural disputes arise from the attempt to address structural and complex problems resulting from the inadequate operationalization of a bureaucratic structure that, through action or omission, violates human rights on a collective scale. When judicialized, such disputes are welcomed and treated through a structural procedure (collective/prospective/corrective), distinct from the traditional model of conflict resolution (individual/compensatory). From this structural procedure emerge decisions that, through the issuance of structural measures, aim to correct the root cause of the problem, resulting in the process not concluding with the issuance of the sentence; on the contrary, an important part of the decision-making process extends into the «after».

Although the topic has not seen significant advancements in terms of legislation by the Legislative Power, the Brazilian Federal Supreme Court has not shied away from its duty to provide responses and protect constitutionally guaranteed rights in the face of situations of structural violation brought to its attention through structural litigation. Therefore, the highest Brazilian court, like other ordinary courts, has redesigned its internal structures with the aim of properly receiving and dealing with these highly complex litigations. Currently, the Brazilian Federal Supreme Court has a specific committee dedicated to this function, the Center for Complex Structural Litigation (Nupec), which plays a fundamental role in identifying and monitoring structural demands, overseeing the case even after the decision has been issued.

In the initial stage of the study, it was identified that there are certain essential procedural elements and conditions for the adequate processing of structural disputes. Structural processes require prerequisites such as dialogue, both institutional and between public institutions and the affected collective and civil society, to create a dialogically democratic environment, which is the hallmark of this type of judicial procedure. To conduct these processes, the Court demands an innovative and transformative stance, incorporated into jurisprudence through an experimentalist vision that enables the construction of structural decisions with a high level of participation from affected groups, experts in the field, and other stakeholders who can contribute to the development of effective judicial measures to solve the structural problem.

As seen, in the development of structural processes in regions of the globe that still have little contact with the subject, it is possible for courts with little experience in handling structural disputes to learn from and incorporate experiences, remedies, and protection standards already developed by foreign courts, as long as this occurs through a legal-cultural translation of the procedural models to be imported, adapting them to the reality of the receiving country. Finally, considering that the structural decision does not conclude the case but rather inaugurates a new phase within the process, it is evident that the incorporation of monitoring mechanisms and the effectiveness of compliance with the actions provided for in the decision are also key elements for the proper conduct of structural processes.

Answering the proposed research problem, it can be stated that most of the measures established by the Brazilian Federal Supreme Court, in the judgment of the structural disputes that remain under the oversight of Nupec, meet the basic assumptions of the theory of structural processes. In the three cases analyzed, all had a high level of dialogue, where the affected group was given the opportunity to be effectively heard within the process and have their views on the problem considered in the construction of the judicial decision. It is evident that the Brazilian Federal Supreme Court has adopted a stance inclined towards democratic experimentalism, expanding dialogue and social participation in the conduct of this type of process, as well as recognizing the need for constant reassessment of the effectiveness of the judicial measures issued, not considering the case finished after the sentence is issued. Moreover, the influence of foreign experiences in structural processes is noted, with successful imports of these models - as in ADPF 635 - in other cases not so much - as in ADPF 347 - sometimes foreign experience is not incorporated into the Brazilian case, but serves as argumentative reinforcement for the treatment model of the structural demand developed by the Brazilian Federal Supreme Court itself. Finally, regarding the incorporation of mechanisms to monitor the effectiveness of the decisions issued by the Brazilian Federal Supreme Court, all structural actions analyzed are under the care of Nupec, making this working group a valuable contribution to the monitoring phase of the development and effectiveness of the structural measures established in the decision, thus contributing to the consolidation of this model in the country.

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Jurisprudence, regulations and other legal documents

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Projeto de Lei n° 8.058 (Câmara dos Deputados , 2014). https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=687758

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Projeto de Lei n° 1.641 (Câmara dos Deputados , 2021). https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2279806

Regimento interno do Tribunal Regional Federal da 6a Região (Tribunal Regional Federal da 6a Região , 6 de octubre de 2022). https://portal.trf6.jus.br/wp-content/uploads/2022/10/REGIMENTO_INTERNO_TRF6.pdf

Regulamento da Secretaria do Supremo Tribunal Federal (Supremo Tribunal Federal , 6 de febrero de 2024). https://www.stf.jus.br/arquivo/cms/ legislacaoAtasSessoesAdministrativas/anexo/RegulamentodaSecretaria2024.pdf

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Notes

Notes

Author notes