A Comprehensive Guide to Special and Extraordinary Appeals in Brazilian Law
Summary of Civil Procedure
Special and Extraordinary Appeal
The primary objective of special and extraordinary appeals is to uphold the federal system. These legal resources ensure the correct application and interpretation of the Federal Constitution and federal law by all courts and judges nationwide.
Bill of Review in RESP and REX
Following a decision to deny an appeal, a special or extraordinary instrument (Article 544 of the CPC) may be filed within 10 days. This instrument is known as a bill of review.
Note: Refer to Article 541, II and III of the CPC.
The purpose of this instrument is to unlock special and extraordinary resources for those who are eligible.
Authentication of the Bill of Review
The parts of the bill of review must be authenticated. The lawyer handling the case can authenticate them under their personal liability.
Decision on the Bill of Review
A decision not to admit the bill of review may be filed internally within five days (Article 545).
Effect of Special and Extraordinary Resources
Special and extraordinary resources are received only in their “devolution” effect. This means that the judge issues a sentence, and the involved party requests the effects of the sentence to be suspended. If the ruling is unfavorable and violates federal law or the Constitution, it will be subject to a special or extraordinary appeal.
Concept: The Extraordinary Appeal
The extraordinary appeal is a procedural mechanism that allows the Supreme Court to analyze the constitutional issues of a case.
Requirements for an Extraordinary Appeal
- The applicant must have exhausted all ordinary legal means or have gone through the other courts in the country.
- The applicant must meet specific statutory requirements for the extraordinary appeal to be received by the Supreme Court (STF).
Pre-questioning
A key feature of the extraordinary appeal is the need for pre-questioning. This means that the constitutional issue must have been assessed by the judgment under attack. If the issue was raised but not assessed, the applicant can request clarification and a proper examination for the extraordinary appeal.
Effects of an Extraordinary Appeal
According to Art. 542, § 2, the extraordinary appeal only has the effect of devolution. It does not halt the original proceedings and cannot be used for provisional execution. However, in urgent cases, the possibility of using an unnamed precautionary measure to obtain a suspensive effect has been put into practice.
Typically, a decision subject to an extraordinary appeal is a final ruling. However, it is understood that this feature also applies to interlocutory decisions if detention is upheld (Art. 542, § 3).
Procedure for an Extraordinary Appeal
- The appeal is filed with the court of origin and addressed to the Vice President.
- The deadline for filing the appeal is 15 days (Art. 508) for the main appeal and for an adhesive appeal (Art. 500, II).
- The Vice President or the court a quo determines the admissibility of the appeal.
- If the appeal is denied, a bill of review can be filed against the decision (Art. 544).
- The defendant has 10 days to respond, after which the case is sent to the Supreme Court for trial on admissibility and merit.
- The reporter may convert the aggravation into an appeal if they believe all necessary elements for the trial are present (Art. 544, § 3). This decision can be challenged.
General Effect of REX
The General Effect (CF, 102, para 3 and Art CPC 543 A, B) is designed to act as a filter for cases reaching the Supreme Court. It ensures that the court only considers cases with significant social, political, economic, or legal implications that go beyond the subjective question. This effect limits extraordinary appeals, as it requires the case to have general applicability and not just affect specific individuals.
Repercussions Gerais
For an extraordinary appeal to be successful, it must demonstrate “repercussions gerais” (general repercussions). This means that the case must have broader implications for society, such as in political, legal, or economic spheres. Eight out of the eleven ministers must agree that general repercussions exist for the appeal to be allowed.
Retention of RESP and REX
Interlocutory decisions can also be grounds for an extraordinary appeal (Art. 542, par 3). However, the process is put on hold until a final judgment or appeal is issued. This rule does not apply in urgent matters.
Repetitive Action
Repetitive actions are those with similar legal arguments, as defined in Article 543-C of the Code of Civil Procedure. These are resources that share the same application or theme.
Special Feature
The special feature aims to maintain the supremacy of laws under the Constitution.
Nature
This is an appeal in the truest sense of the word. Created by the Constitution of the Federative Republic of Brazil to alleviate the Supreme Court’s workload, it aims to protect the rule of law.
Legal Provision
The special feature is provided for in Art. 105, III of the Constitution of the Federative Republic of Brazil and Art. 541 of the Code of Civil Procedure.
Applicability
It is applicable to decisions made by the Courts of Justice of the States and Federal or Regional Courts.
Jurisdiction
The Superior Court of Justice has jurisdiction over special appeals, distributed among its divisions as per its Bylaws.
Deadline
The deadline for filing a special appeal is 15 days from the notification of the contested decision.
Specific Assumptions for Appeal
- Exhaustion of Prior Ordinary Means: This means that an appeal is only appropriate when all other ordinary appellate options have been exhausted.
- Imprest for Mere Revision of Proof: This exceptional appeal only deals with matters of law, not fact. The applicant cannot use it to simply request a review of the evidence. Exceptions include questions about the value of abstractly considered proof (burden of proof, value of confession, evidence of legal business, etc.).
- Prequestionamento: This refers to the discussion and raising of federal or constitutional issues in the local court that the applicant wishes to refer to higher courts.
Lodging
The lodging of the special feature follows the same rules set for the appeal, with necessary adjustments.
Combining Special and Extraordinary Resources
When a decision is challenged using both special and extraordinary appeals, the party must do so while obtaining the last demurrage until the trial of the other.
Effect of Special Feature
The special feature only has a devolutionary effect. This means that the ruling can be temporarily implemented.
Admissibility
The president of the court of appeal admits the appeal and sends it to the Superior Court. If the appeal is not admitted, the party can file a bill of review (Article 544 of the CPC) with the president of the court of appeal.[1] This is because the desired effect of moving the special feature forward will not be achieved if it is retained.
Special Withheld
Refer to Art. 542, § 3 of the Code of Civil Procedure.
Ordinary Appeal
The ordinary appeal ensures two levels of jurisdiction in cases under the original jurisdiction of the courts. These are lawsuits filed directly with higher courts.
Cases Tried in an Ordinary Appeal
- Supreme Court: Writs of mandamus, habeas data, and injunctions decided in a single instance by higher courts, when the decision is a denial.
- Superior Court:
- Writs of mandamus decided in a single instance by the Federal Regional Courts or by the courts of the States and the Federal District and Territories, when the decision is a denial.
- Cases where the parties are a foreign state or international organization on one side and a municipality or a person residing or domiciled in Brazil on the other.
In cases mentioned in item II, b, interlocutory decisions may be filed.
Applicability of Appeal Discipline
The same disciplinary rules for appeals, concerning procedure and conditions for admissibility, apply to ordinary appeals. Therefore, the pertinence of using an adhesive appeal alongside an ordinary appeal cannot be denied, similar to the appeal procedure and assumptions.
Embargoes or Divergence RESP REX
Embargoes address differences in decisions made on special features or extraordinary appeals when they differ in content from another class or organ-section, as per Art. 546. This is particularly relevant when dealing with a fraction of the courts representing the full court. The purpose is to unify the jurisprudence of the courts, allowing the STF or STJ to resolve internal differences.
Uniform Court (476-479)
Purpose
The Uniform Court aims to harmonize the law and ensure legal certainty by minimizing discrepancies between decisions for similar requests. It establishes precedents by reiterating a specific legal thesis, standardizing the interpretation of a law within the domestic court.
Nature
It is an incident, not a feature.
Effects
The power to implement the Uniform Court lies with a major organ (as per the regulations of each court – for example, only the boards of civilian civil cases). This is a broad body, not a single class. When a process reaches the Uniform Court, it triggers the following:
- Suspension of Process: The process is put on hold, awaiting the decision on the issue under consideration.
- Division of Powers: The full section of the civilian court will judge the broader legal issue being standardized.
Applicability
It applies to any recourse or action under the original jurisdiction of the court.
Assumptions
- Pending Trial: If the trial has already been rejected, the process of impact cannot be initiated.
- Legal Question: The question must be legal, requiring an analysis independent of the facts. For example, “Is income tax levied on interest on arrears?” is a legal question.
Procedure
A magistrate initiates the request. If deemed incompetent, the magistrate makes a decision and sends it to the court. The uniform process follows the scoresheet, allowing the magistrate to dismiss the remaining points of the process and issue a sentence. Standardization can occur without the scoresheet.
Incidental Declaration of Unconstitutionality by the Courts (CF 1997, CPC arts 480-482)
Goal
Every judge can dismiss an unconstitutional system through diffuse control. However, a single judge loses this power when acting as part of a court. According to Art. 97 of the Constitution, a court can only declare a law unconstitutional if the majority of its members agree. A single judge cannot make this decision.
Nature
Incidental
Effects
- Suspends the process.
- Triggers the separation of powers – the unconstitutionality of the law can be raised at any point during the proceedings, as long as the trial has not concluded. If raised mid-trial, it must be addressed.
Any matter within a judge’s purview can be brought to their attention, and they are obligated to make a decision.
Standing to Argue Unconstitutionality
Only a majority of the court’s members can declare a law unconstitutional. While individual judges can raise concerns about a law’s constitutionality, the decision rests with the court as a whole. This declaration has a binding effect on other judges.
Non-Applicability
- When the Supreme Court has already declared the matter unconstitutional.
- When the Supreme Court has already issued a declaration, preventing the court from acting.
Summary (Docket)
In Brazilian law, a “summary” or “docket” is a record of the interpretation consistently adopted by the Court on a specific legal issue. Its purpose is to inform the public and promote uniformity in legal decisions. It serves as a menu of the court’s jurisprudence, simplifying legal proceedings for lawyers and courts in similar cases.
Stare Decisis
Stare decisis refers to a decision made by the Supreme Court that becomes a binding precedent. All other courts, judges, and public administration entities (direct and indirect) must adhere to this precedent. It effectively gains the force of law, creating a legal obligation with erga omnes effects (binding on everyone). Only the STF has the authority to issue binding precedents (Art. 103-A cf).
Pre-question
Pre-question is the requirement that the federal or constitutional issue has been raised in lower courts. It is a crucial step in utilizing these legal resources.