Justiciabilidade e não decisão: Quando o Poder Judiciário não deve decidir

Abstract

The purpose of this dissertation is to review the traditional concept that judges can and should decide all lawsuits and controversies presented to them. The idea that the absence of a decision represents a denial of jurisdiction should be reviewed. Based on the premise that there are situations in which the judicial branch cannot substitute the other branches of government or other public institutions, as well as on the assumption that there are situations in which judges do not have enough knowledge to decide a matter, this dissertation will show that a judge's declaration to not to decide a case does not represent a violation of the principles of the non-obviation of judiciary jurisdiction and indeclinability of jurisdiction, both dear to the access of justice. Indeed, the proclamation of a decision should not be the expected answer to all controversies submitted to judges. A non-decision can also be an adequate response for a case, which must not be mistaken for the prohibition of non liquet. Suppose the litigated issue is not considered justiciable. In that case, the judge should be able to declare that, out of respect not only for the separation of powers but also for the jurisdictional citizens, he will not decide and will allow the resolution to be provided by the constitutionally competent bodies instead.