See the next steps of the INSS lifetime review

Courts across the country will only have to re-examine the processes on life review after the STF (Federal Supreme Court) judgment in favor of retirees is completely concluded and the final decision is published, according to experts.

This Friday (25), by 6 votes to 5, the ministers of the Supreme Court approved the right of the INSS (National Social Security Institute) retiree to include old salaries in the retirement calculation, prior to July 1994, when the Real went into effect in the country.

This Friday, Minister Alexandre de Moraes presented his favorable vote, which broke the tie and set a score with a majority of votes for retirees. Ministers Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewandowski had already voted in favor, who followed the vote of the rapporteur, Minister Marco Aurélio.

The divergence occurred with the vote of Minister Nunes Marques, who, at the time, was followed by Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.

Because it is in the virtual plenary, the trial has a deadline until March 8. From the 9th, publication of the minutes with the final thesis may occur at any time. Until March 8, ministers can change their vote. There is also the possibility for any minister to ask for a face-to-face judgment on the subject. But no highlight has been made so far and the trial continues in the virtual plenary.

In this case, the discussion would start again and a new thesis would be needed, this time without the presence of Marco Aurélio, who retired. André Mendonça, appointed by President Jair Bolsonaro (PL), took his place. A new trial would be a possibility for the government to try to block the decision.

Embargoes may be presented

The STF’s internal regulations provide for the publication of judgments 60 days after the trial. After this period, either party can file a motion for clarification, which is when there is a request for clarification on the thesis signed.

“The motion for clarification occurs if there was an omission, some point that was asked to analyze and was not analyzed, contradiction or an obscurity, something that was implied, but does not change the final result”, says Renata Severo, from Vilhena Silva Advogados.

In this case, the ministers take even longer to define and arrive at a new final thesis. Lawyer Roberto de Carvalho Santos, from Ieprev (Institute of Social Security Studies), says that, although the review received six favorable votes, the votes of the rapporteur minister and Alexandre de Moraes are different and this may be a point in which clarification through embargoes.

“This is a point that is creating a difficulty, the thesis of Minister Marco Aurélio, who is the rapporteur, has a certain divergence from the thesis of Minister Alexandre de Moraes, although they want to say the same thing. in this case”, says Santos.

For Gisele Kravchychyn, director of judicial action at the IBDP (Brazilian Institute of Social Security Law) and advisor to the OAB (Brazilian Bar Association) in Santa Catarina, the thesis accepted will be that of the rapporteur, followed by four other ministers.

Processes will resume

According to Gisele, after the final decision, which is when the case will come to a complete end, with no possibility of any type of appeal, the actions currently stopped in court will resume walking. Data from the CNJ (National Council of Justice) show that there are 4,295 suspended cases on the subject.

However, those who believe they are entitled to review and have not yet filed a lawsuit can look for a lawyer to see if the request is worth it and make the request, especially if retirement is close to completing ten years.

“Anyone who is close to the deadline should enter as soon as possible”, says Tonia Galleti, coordinator of the legal department of Sindnapi (National Union of Retirees, Pensioners and Elderly).

She says the union will scan its members to find out who is entitled and guide them so they don’t fall for any scam.

Government says spending will be R$ 46 billion

In its arguments against the correction, the AGU (Advocacy-General of the Union) claimed that, if approved, it would bring expenses of R$ 46 billion to the public coffers in ten years. Experts object. They asked for details of the values, since, for them, the review is limited and does not reach many retirees. THE sheet also asked for details of the values, but got no response.

The insured person who retired in the last ten years is entitled to review, provided it is before the pension reform, instituted by amendment 103, on November 13, 2019. It is also necessary that the benefit has been granted based on the rules of Law 9,876, of 1999. However, the correction only pays for those who had higher salaries before 1994.

Who is entitled to a lifetime review

The whole-life review is a lawsuit in which retirees request a recalculation of their retirement to include contributions made to the INSS during their working life, even those made before July 1994. It is possible to receive amounts over R$100,000 in arrears .

Those who retired after the pension change and had salaries before 1994 were harmed. In court, the request is for the best benefit to be granted. This was the thesis approved by most of the STF ministers in the trial that began in June last year, but was interrupted after a request from Minister Alexandre de Moraes to see it.

The case, judged under topic 1102, is one of the main social security issues in recent years for retirees across the country and has general repercussions.

According to the rules defined in Law 9,876, of 1999, those who were already insured with the INSS until November 26 of that year would have their average salary calculated on the 80% greater contributions made from July 1994. As of November 27, 1999, the permanent rule established that the average salary would be calculated with the highest salaries of the entire period with contributions to Social Security.

Lawyers discovered thesis while doing calculations

The mistake in pensions that gave rise to the lifetime review was discovered by lawyers when making calculations. At the same time, Tonia, who works in the state of São Paulo, when preparing a class, realized the mistake, and Gisele, from the south of the country, realized the mistake when doing math with colleague Ana Carolina Zanata and lawyer Noa Piatã.

“I was preparing a class and I found the hole where the problem was. I saw that I had a similar thesis on the issue of public servants, not on the general issue, then we started to ask in court, as well as other lawyers in the country”, says Tonia.

Gisele says that, in her case, the thesis came about in a joint work with Ana Carolina and Piatã. “It started with the mathematical calculation of an insured person’s entire contributory life. We began to see that the result was very positive and, in some cases, it was the opposite.”

On behalf of clients, they went to court in favor of the review. The case res judicata in the Supreme Court, which in 2019 had a favorable decision in the STJ (Superior Court of Justice), belongs to the three lawyers. “This was not the first case on the subject, but it was the case that was affected there. [no Supremo]”, says Gisele.