In recent years, intense debates surrounding abusive litigation have spread across virtually all levels of the Brazilian judiciary. Despite efforts by the Judicial Branch to consolidate legal standards in light of the abstract nature of the legal framework—particularly through the judgment of Theme No. 1,198 by the Superior Court of Justice (STJ) and Recommendation No. 159/2024 issued by the National Council of Justice (CNJ)—discussions on the subject remain highly contentious.
Part of the legal community and society argues that imposing controls on claims exhibiting characteristics of potential abuse would constitute a violation of the constitutional principle of access to justice. Conversely, others maintain that preserving the status quo would itself undermine not only access to justice but also several other constitutional principles.
It is important to clarify that access to justice is not limited to access to the Judiciary. The Brazilian legal system allows for the use of alternative dispute resolution mechanisms outside judicial proceedings, including conciliation, mediation, and arbitration. Therefore, viewing judicial litigation as the sole means of achieving social pacification is akin to settling for the shadows in Plato’s Allegory of the Cave, thereby reducing the broader system of dispute resolution available under the law.
Moreover, the principle of access to justice coexists with other constitutional values, such as the reasonable duration of proceedings and procedural efficiency (Article 5, LXXVIII, of the Federal Constitution). Data from the National Council of Justice’s “Justice in Numbers 2025” report indicate that the average duration of proceedings in State Courts remains substantial, highlighting the collective impact of prolix or manifestly unfounded claims. Likewise, the estimated systemic costs associated with litigation raise legitimate concerns regarding the sustainability of the current procedural model.
Furthermore, the proliferation of digital consulting services and marketing campaigns encouraging the mass filing of lawsuits against large corporations, often coupled with promises of substantial financial gains, creates incentives that may artificially inflate litigation levels. This phenomenon requires regulatory and educational responses, not merely punitive measures, in order to preserve both the legal profession’s role in safeguarding the democratic rule of law and the effectiveness of dispute-resolution mechanisms.
Ultimately, any response to this issue must balance the protection of broad access to justice with safeguards designed to preserve the efficiency, integrity, and fairness of the judicial system, ensuring that the peaceful resolution of disputes prevails over the emergence of a potentially harmful market for abusive litigation.
Available at: https://www.congressoemfoco.com.br/artigo/121242/a-litigancia-abusiva-como-uma-violacao-sistemica-de-direitos-humanos
Autor: Yuri Arraes Fonseca de Sá • email: yuri.sa@ernestoborges.com.br
