Access to justice, special curator and cost of proceedings seen from the peculiar case of the (non) granting legal aid to the defaulting defendant

Abstract

This work is part of the court costs debate, a delicate issues, especially concerning the Brazilian Public Defender's Office. It aims to analyze the position of Brazilian Superior Court of Justice regarding the granting of suing in forma pauperis, provided by the Code of Civil Procedure, to the defendant, party served through constructive service of process, and thus represented on judicial process by what is called special curatorship, usually carried out by the Public Defender's Office. One of the hypotheses for not granting the benefit, in principle, would be the lack of legitimacy of the Office of the Defensoria to request it and judgment, which is soon dismissed. As a result of the search for judgments in the Court's database, it is clear that the current understanding is that the benefit of the absentee defendant is not presumed, since the Public Defender would not, obviously, have any personal contact with him, whose economic conditions could not be verified. This is the majority position of the  Brazilian Superior Court of Justice, although there are precedents that do not require recursal preparation, recognizing the need to protect the right to due process and adversary system.