Lifetime review can take years to be decided in the STF, say lawyers

The final decision of the STF (Supreme Federal Court) on the lifetime review of the INSS (National Social Security Institute) may take years to come out, after a prominent request made by Minister Nunes Marques, who will take the case to the physical plenary, according to social security lawyers heard by the sheet.

With that, the retirees who asked for correction in court, in an attempt to reverse the change applied in the 1999 reform, 22 years ago, still do not have a definitive answer on the case and may have to wait a few more decades. The 4,295 cases that are stalled in the Judiciary, awaiting a response from the STF, remain unsolved.

The whole-life review is a lawsuit in which policyholders 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 social security income.

At the time, the rule created by the new law harmed policyholders who were already contributing to Social Security, improving the situation of those who were going to start contributing and retiring after the publication of Law 9,876, in November 1999.

In the trial started in the virtual plenary of the STF on February 25, the score was favorable to retirees, with six ministers in favor of the review and five against. All 11 ministers had voted. However, as it is a virtual plenary, until 11:59 pm on March 8, there could be a request for prominence.

That’s what minister Nunes Marques did around 11:30 pm, with 30 minutes to go. This type of request at such a short notice before the decision was closed was considered a pro-government maneuver. According to the Supreme, now, “the process will be judged in the plenary session, as provided for in the STF’s internal regulations” and there is still no date set for this to occur.

Score may change and lawyers try to maintain advantage

With the start of a new trial, experts point out that there may be a change in the score. The reason is that one of the favorable votes was by the rapporteur of the case, Minister Marco Aurélio, who retired in 2021. fair (9).

“In our request for a point of order, we request that the highlight be not accepted. We understand that this request could have been made much earlier, that this is an improper procedural maneuver. And it is up to the president to determine whether he will accept the request for highlight and, therefore, determine the restart of the trial and then we don’t know the deadline, how long the trial will take place”, says Roberto de Carvalho Santos, president of Ieprev.

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, is one of the authors of the lawsuit that reached the Supreme Court and says that, even without knowing when there will be trial in the physical plenary, is already working to defend the thesis.

“Now, the trial starts again, all the ministers vote again. This allows people to really try, in the face-to-face debate with oral arguments, to talk to them so that they change their understanding and who knows, maybe convince one more of them to vote in favor of the thesis .”

Review began to be judged last year and is limited

The lifetime review trial began in June last year and was interrupted after a request 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 possible to know his decision.

Like Marco Aurélio, Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewandowski, the minister was also in favor of the review. “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, should it be more favorable”, he said in his vote.

The ministers Nunes Marques were against the thesis, judged by theme 1,102, who opened the divergence based on the government report saying that federal expenses with the correction would be R$ 46 billion in ten years. He was followed by Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.

The action, however, is limited. Insured persons who joined Social Security before November 1999, retired after that date and whose benefit is less than ten years old are entitled to a lifetime review. You must also have retired before the 2019 Social Security reform. The arrears paid are for the last five years at the time of application.