Review of the entire life of the INSS may have a new twist in the STF

Decision taken by the ministers of the STF (Federal Supreme Court) this Thursday (9) brings a new twist to the judgment of the review of life. By eight to one, the magistrates defined that votes of retired ministers in processes in the virtual plenary must be kept in case of a prominent request, when the case will be taken to the physical plenary and will start over from scratch. Two ministers did not vote because they were not present

The lifetime review is one of the most important social security actions in the STF today. In it, INSS (National Social Security Institute) retirees ask that all their contributions to the INSS, including those made before the creation of the real, in 1994, be considered in the calculation of the average salary to increase the social security income.

The case was practically closed in the virtual plenary, in March, when, a few minutes from the end of the decision, minister Kassio Nunes Marques asked for prominence, taking the process to a new trial in the physical plenary, with no date to be set.

In the virtual plenary, the result was favorable to retirees by one vote. Six of the 11 ministers were in favor of the review, indicating the constitutionality of the thesis. Five of them were against the correction, after a government report indicating expenditures of R$ 46 billion in ten years if the measure were approved.

With the request of Nunes Marques, the vote of Justice Marco Aurélio, rapporteur of the case, which was favorable to the review of the whole life, would no longer be valid. Because he was retired, Marco Aurélio would no longer vote. In his place, André Mendonça, nominated by Jair Bolsonaro (PL), would vote, and, in the opinion of experts, could be against the review.

At least 21 actions should be affected by the measure, as quoted by Minister Nunes Marques when dealing with the subject. The decision was taken as a matter of order presented by Minister Alexandre de Moraes in the analysis of ADI (Direct Actions of Unconstitutionality) 5399, 6191 and 6333. For Moraes, as he was retired, the minister could no longer defend his thesis.​

His vote was followed by all the colleagues present, with the exception of André Mendonça. Even Kassio Nunes Marques voted in favor and the president of the court, Luiz Fux, who, when consulted by Marco Aurélio last year, had said that the votes of those retiring would be discarded in new trials.

In the debate, it was decided that justices who are still in the STF on the date of the trial will be able to vote again and change their position on the subject. For social security lawyers, although the decision taken this Thursday is in favor of a lifetime review, there is no guarantee of victory, as there may be changes both in favor and against the correction.

According to lawyer Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), the decision taken will be applied immediately, as it is a change in procedural rule.

See how the ministers voted

Insured can still ask for review

Priscila Arraes Centeno, from the office Arraes & Centeno, assesses that there was savings in the treasury, since the vote of the retired minister will not be “thrown away”. “It’s a form of respect, including the public purse, since the retired minister was working, analyzed the process and was getting paid for it.”

Lawyer Carolina Centeno, from the same office, advises policyholders who still do not know whether they are entitled to a lifetime review to seek a specialist and make calculations to understand whether or not to file a lawsuit.

Trial started in 2021

The trial of the case had begun in June of last year and was interrupted after a request for a view from Minister Alexandre de Moraes. At the time, the score was tied at 5 to 5. On February 25th of this year, voting resumed. In the first few hours, Moraes published his vote and it was already possible to know his decision.

Like Marco Aurélio, rapporteur of the case, Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewndowski, the minister was also in favor of the review. In his vote, in addition to guaranteeing the right to the best benefit, he defined who could make the request.

“The insured who implemented the conditions for the social security benefit after the enactment of Law 9,876, of 11/26/1999, and before the new constitutional rules, introduced by the EC in 103/2019, which made the transitory rule definitive, have the right to opt for the definitive rule, if it is more favorable”, he said.

In June 2021, ministers Nunes Marques were against the decision, who opened the divergence based on the government report, followed by Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.