Amendments brought by Constitutional Amendment No. 45 at the already distant year 2004, there was inclusion in the role of fundamental rights and guarantees enrolled in art. 5 of the Federal Constitution of the Right to the "reasonable duration of the process and the means to ensure the speed of their procedure", in accordance with the relevant LXXVIII, established by it.
thus recognizes a fundamental right to the provision of jurisdictional protection in adequate time and also the state duty to promote procedural means of safeguarding such a right.
The issue relates fundamentally with how time is regarded in procedural relations: if, before, constituted an element alien and irrelevant to the provision of tutelage by the State, today, recognizing that "late justice consists of nothing more than institutionalized injustice, "the time element is handle the case of procedural burden to be properly distributed between the parties, and no more sacrifice imposed on the author who, although it was right, should wait every long procedural progress to see tutelated The pursued legal property. It therefore abandons the idea that the process should serve only as a way of protecting fundamental guarantees of defense of the defendant, opening space for the harmonization of such an element with the provision of effective judicial guardianship, is also a fundamental right ( Art. 5º, XXXV, CF).
It is under such a perspective that, long before the constitutional forecast expressed from the fundamental right to the reasonable duration of the proceedings in 2004, have already established, with procedural reforms started ten years earlier, techniques to withdraw from the author's shoulders burden of supporting the time of the process, attributing it to the defendant, which once only benefited from it. We refer here for the anticipation of protection against defense abuse and the anticipation of incontroverted part of the demand in the course of the procedure, planned, respectively, in art. 273, item II and § 6, of the Code of Civil Procedure.
such procedural techniques, as Marinoni refers, "open the opportunity to crystallize procedural forms capable of allowing the meeting of justice within reasonable time, preventing that the lack of seriousness of seriousness and the defense that controverses only part of the demand can overlap Right evident and uncontroversy right "(Marinoni, 2007, p.12).
Under the perspective of the author, such changes represent much more than procedural formalism indifferent to reality and destined only to the theoretical formulations of the operators of law: they actually represent a significant and concrete change resulting from a new phase of procedural studies, in which the process, safeguarded their scientific autonomy, constitutes In this context, the procedural techniques sued, in cases where their application is admitted, that is, when the defendant abuses his right to defense or makes a part of the demand, anticipate the tutelage intended by the author and attribute to the The burden of supporting the delay of the process. Now, it is necessary to perceive, as Assevera Marinoni, "that the defendant may not have an interest in demonstrating that the author has no reason, but only wish to maintain good in his equity, although without reason, for the longest possible time "(2007, p. 26), and with this the civil proceedings, fulfilling the State, in the figure of the judge, harmonizing the fundamental rights, prominence - of defense of the defendant and the reasonable duration of the , without which remains undermined, also, the aforementioned right to the effective judicial protection. Bedaque, José Roberto dos Santos.
