THE CONFLICT BETWEEN THE PRINCIPLES OF AND THE REASONABLE DURATION OF THE PROCESS: PROHIBITION OF THE PROLATION OF A SURPRISE DECISION SURPRISE AND THE NEED FOR CONSTITUTIONAL HERMENEUTICS AS A METHOD INTERPRETATIVE METHOD

Abstract

The adversarial process is one of the basic constitutional principles for the realisation of democracy and the effective participation of the parties in judicial or administrative proceedings. However, if it is protected and privileged in an unrestricted way, it can lead to the violation of other principles of the same order. The question arises: Does the issuing of decisions without allowing the adversarial process to be exercised give rise to a violation of due process of law and Article 10 of the CPC, or does it guarantee compliance with the reasonable duration of the process? The aim of this study is to demonstrate the conflict between constitutional principles, in the light of the Federal Constitution, Brazilian and Lusitanian legislation and case law, and the need to adopt constitutional hermeneutics to resolve the antagonistic situation. The methodology used was bibliographical research into doctrine, constitutional and infra-constitutional legislation, as well as related case law in the qualitative modality. The result of the analysis was that, although there is a clear conflict between the constitutional principles of adversarial proceedings and the reasonable duration of proceedings, in relation to Article 10 of the CPC, by using constitutional hermeneutics in the specific case, it is possible to relativise the prohibition on issuing surprise decisions, without this affecting legal certainty and due process of law.