STF Themes 500 and 1,161 from the perspective of precedent theory case of distinguish

Abstract

Background: The Brazilian precedent system requires that judges use follow-up or non-follow-up techniques to apply or disapply a previous court decision on mandatory compliance. Problem: In complex cases, in which a court changes its understanding, it is not always clear and transparent which technique supported the new position. And this lack of clarity can make it difficult to understand even the new thesis. Objectives: To identify which technique was used by the Supreme Federal Court to decide Theme 1,161, in order to understand, with greater accuracy, what is the State's duty to provide medicines. Methods: Narrative review analysis was applied to the documentary and bibliographic collection. Results: In the decision on Theme 500, the STF established two theses, one main one that the State is not obliged to provide unregistered medicines, another subsidiary one that the State is obliged if there is delay by the agency and other requirements. In the decision on Topic 1,161, the STF upheld the thesis that the State is required to supply a medicine that the agency has authorized to be imported. The justices, in a divided manner, linked the second decision to the distinguish hypothesis and the ampliative distinguish hypothesis. Conclusions: The STF's decision on Topic 1,161 is a distinguish from the decision on Topic 500, while it does not formulate an ampliative precedent for the subsidiary thesis, but rather a distinction from the main thesis of Topic 500. The fact that it is a distinction from the main thesis makes the new thesis unrelated to the requirements of the subsidiary thesis.