The Brazilian appeals system is the subject of study for many legal scholars. This is because those who receive an unfavorable decision are not usually content, therefore desiring the review or annulment of said decision. It is important to mention that there are several types of appeals, such as the interlocutory appeal, the appeal on points of law, the special appeal, the motion for clarification, among others.

Here on the IDP Online blog, we've already studied the concept of appeals (and the types of decisions issued by a judge), and on another occasion, I've already told you how you can prepare an extraordinary appeal.

In this text, we will study the interlocutory appeal, expressly provided for in article 1.015 of the Code of Civil Procedure.

Appeals and interlocutory decisions

In accordance with article 1.015 of the CPC (Brazilian Code of Civil Procedure), it is possible to file an interlocutory appeal when faced with an interlocutory decision.

An interlocutory decision, in turn, is one issued during the course of the proceedings; that is to say, it is the judicial pronouncement that resolves the incidental issue, without bringing the proceedings to an end (Article 203, § 2 of the CPC).

This final part of the concept – “without bringing the process to an end” – is the main characteristic of an interlocutory decision. This is because, even if it decides on a matter of merit, if the decision does not bring an end to the cognitive phase of the common procedure or to the execution, we are dealing with an interlocutory decision.

In other words, the content of the decision is relevant, but not sufficient to qualify it, since: if it has the content of articles 485 or 487 and also terminates the proceedings, the decision is a judgment!

If the decision, in turn, contains material from articles 485 or 48, but does not terminate the enforcement proceedings or the cognitive phase of the ordinary procedure, it is an interlocutory decision.

The appealability of interlocutory decisions

As a rule, all interlocutory decisions are subject to appeal. However, not all interlocutory decisions are immediately appealable. 

This is because only the interlocutory decisions expressly listed in article 1.015 of the CPC are immediately appealable through an interlocutory appeal.

Interlocutory decisions not included in the list of Article 1.015 are subject to appeal in the grounds or counter-arguments of an appeal (Article 1009, § 1 of the CPC). That is to say, such issues are not subject to preclusion.

As a logical consequence, interlocutory decisions that are appealable by means of an interlocutory appeal, that is, those that fall under the hypotheses contained in the list of article 1.015 of the CPC, are subject to preclusion. 

This means that if these decisions are not challenged through an interlocutory appeal, the party or interested party loses the right to subsequently challenge that decision.

Interlocutory appeal and writ of mandamus.

It is important to mention the established understanding that an interlocutory appeal is admissible against a decision granting or denying a preliminary injunction in a writ of mandamus , since it is an interlocutory decision.

This possibility was provided for in Article 7, § 1 of Law 12.016 (Mandamus Law), which expressly provides for the possibility of filing an appeal.

In fact, this is an important premise. Although the list in article 1.015 of the CPC is considered to have mitigated taxativity, other laws may also provide for the possibility of filing this appeal.

The deadline for filing an interlocutory appeal.

Article 1003, § 5 of the CPC, in order to make life easier for those subject to the law, unified the appeal deadlines.

This means that if you wish to appeal a decision, you must observe the 15-day deadline, both for filing the appeal and for responding (counter-arguments).

It is important to remember that the deadline for filing and responding to an appeal is doubled, i.e., 30 days, when the appellant or the appellee is the Union, the State, the Federal District, or the Municipality, as well as their respective autonomous agencies and public foundations.

The only exception is the opposition to the motion for clarification, for which the deadline for filing and responding is 5 days.

Attention to requests for reconsideration

This is a very common mistake in legal practice. The request for reconsideration, frequently used by lawyers, is not an appeal, as it is not listed as such in article 994 of the CPC (Brazilian Code of Civil Procedure).

This type of petition is used in a technically flawed manner. This is because it does not have the power to interrupt or suspend the deadline for filing a regular appeal. Consequently, its misuse may result in the losing party losing the appeal deadline.

A request for reconsideration is only admissible when dealing with a decision on a matter of public order, because in these cases preclusion does not apply, and these are issues that the judge must consider ex officio.

The grounds for filing an interlocutory appeal.

The grounds for filing an interlocutory appeal are listed in Article 1.015 of the Code of Civil Procedure. I will not analyze them one by one because there are several.

However, to make your studies easier, I will give you some examples:

1) The plaintiff filed a lawsuit for alimony, requesting provisional relief (to anticipate the effects of the final judgment). The judge denied the request.

An interlocutory appeal is admissible, pursuant to Article 1.015, paragraph I of the CPC (in this case, the decision concerned provisional remedies).

2) The consumer, harmed by a failure in the provision of contracted services, files a lawsuit against the supplier; asks the Judge to reverse the burden of proof, and the Judge denies the request.

An interlocutory appeal is admissible, pursuant to article 1.015, item XI of the CPC (in this case, the decision ruled on the redistribution of the burden of proof).

3) The party files the lawsuit and is unable to pay the court costs, therefore requesting the benefit of free legal aid. The judge denied the request.

An interlocutory appeal is admissible, pursuant to article 1.015, item V of the CPC (in this case, the decision ruled on the denial of free legal assistance).

In article 1.015 and its subsections you will find other possibilities for filing an interlocutory appeal.

The mitigated tax rate 

It is worth noting that the list in article 1.015 of the CPC is not exhaustive, so other interlocutory decisions not included in that list may, exceptionally, be subject to appeal.

This is what the Superior Court of Justice decided , note:

"The list in CPC 1015 is of mitigated taxativity, therefore it allows the filing of an interlocutory appeal when urgency is verified due to the futility of judging the issue in the appeal" (STJ, Special Court, REsp 1704520-MT, rapporteur Min. Nancy Andrighi, judgment of 5.12.2018, unanimous, DJUe 19.12.2018). 

Finally, I would like to inform you that there are several articles here on the IDP Online blog about Civil Procedural Law , should you wish to delve deeper into other topics.

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Bibliographic references

Annotated Code of Civil Procedure, by professors Nelson Nery Junior and Rosa Maria de Andrade Nery, published by Revista dos Tribunais.