The Superior Court of Justice (STJ), in its recent ruling on Theme 1.178, reaffirmed the constitutional principle of access to justice by deciding that objective criteria such as income or assets cannot serve as the sole basis for denying judicial fee waivers. The decision upholds the logic that a declaration of financial hardship carries a relative presumption of truth, meaning that only consistent evidence can justify the requirement for additional proof. At first glance, this understanding strengthens protection for the most vulnerable and prevents rigid formulas from creating artificial barriers for those who depend on the justice system.
However, there is another side to this debate that must not be overlooked. An economic reading of litigation reveals that, if misapplied, unrestricted fee waivers can have a perverse side effect: encouraging excessive litigation and contributing to the already well-known overload of the judiciary. By shielding requests for fee waivers from even a minimally objective filter, there is a risk of turning an inclusion mechanism into a driver of inefficiency. Universalized access, when not properly calibrated, leads to a rush to the courts that fails to distinguish between the needy and the opportunistic, weakening the Judiciary’s role as a space for qualified conflict resolution.
Recent data from the CNJ’s Justice in Numbers report provides empirical context for this concern: it is estimated that 34% of cases definitively closed in State Courts involve requests for judicial fee waivers. This percentage—which, according to the report, may be even higher due to underreporting or courts that do not properly record decisions on fee waivers—shows that these are neither isolated nor marginal cases. The data suggests that fee waivers have become a significant portion of the procedural volume, intensifying the risk of congestion, delays, or disproportionate allocation of resources to claims that could potentially be subject to some moderation criteria.
The challenge, therefore, lies in finding balance. The STJ’s decision rightly rejects mathematical formulas that, on their own, fail to capture the complexity of a citizen’s economic reality. However, it is also important to recognize that the justice system operates with finite resources and that mass litigation, encouraged by the absence of costs, contributes to clogged dockets and delays in delivering decisions. An uncritical application of fee waivers, even in the name of a noble constitutional guarantee, may result in the paradox of hindering access to justice by compromising its effectiveness.
Ultimately, what is at stake is the need to preserve the right of access without turning it into a blank check. An economic perspective shows that efficiency and social justice are not opposing values, but complementary facets of the same goal: ensuring that the doors of the Judiciary remain open to those who truly need them, without becoming a congested hallway that hinders everyone. The STJ has taken an important step by reaffirming the principle of individualization, but it will be up to judges, in practice, to carry out the difficult task of applying this understanding without losing sight of the fact that judicial fee waivers are a tool for inclusion—not for trivializing the legal process.
Available in: https://www.migalhas.com.br/depeso/442431/entre-acesso-e-abuso-os-desafios-da-gratuidade-judicial-no-brasil
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