THE The limitation period applied for claims to redress damages to the Public Treasury: challenges and perspectives

Abstract

The extent and applicability of art. 37, paragraph 5, of the Constitution has always been subject of academic and court debates, considering that the wording of the constitutional rule does not allow to conclude, unequivocally, if the constituent objective was to establish the inapplicability of a limitation period for claims to redress damages to the public treasury or not. After decades of legal uncertainty, the Supreme Federal Court, in the past few years, started to judge binding cases on the various aspects of this public debate. Notwithstanding the three binding precedents that exist, the discussion is not yet finalized and there are still many challenges for the application of the precedents of the Supreme Court. In view of the current debate on the application (or not) of the limitation period for claims to redress damages to the public treasury, this article will (i) expose the main controversies about art. 37, paragraph 5, of the Constitution; (ii) analyze the evolution of the understanding of the Supreme Federal Court on the subject, as well as the binding decisions issued; and (iii) debate some of the existing challenges in the application of the binding decisions, in the light of the recent decision issued by the STJ that added complexity to the discussion.