Over the past three decades, the constitutional landscape has undergone several changes, especially due to constitutional amendments that included or altered the original text of the Federal Constitution. Among these changes, Constitutional Amendment No. 45/2004 was crucial for the proper functioning of the Judiciary.

Before the constituent assembly, the Supreme Court functioned as a reviewing court, whose appeals concerned collegial decisions by State Courts and Federal Regional Courts. At that time, it was not only responsible for judging appeals on constitutional matters, but also appeals dealing with controversies regarding sub-constitutional norms.

From 1988 onwards, the Supreme Court became the guardian of the Constitution, and was entrusted with the function of establishing the most appropriate interpretation of the constitutional text applicable to specific cases, as well as exercising abstract constitutional review. 

Due to a series of factors discussed in legal doctrine, which will not be debated here, the caseload of both Courts has grown exponentially since the promulgation of the constitutional text, especially that of the Superior Court of Justice (STJ), which has suffered from excessive appeals, given that most of the cases that reached the court had, to some extent, grounds for appeal. 

Given this scenario, the Supreme Court, through the National Congress, enabled Constitutional Amendment No. 45, which included paragraph 3 in article 102, establishing that " (i)n the extraordinary appeal, the appellant must demonstrate the general repercussion of the constitutional issues discussed in the case ."

In short, the Supreme Federal Court (STF) was granted discretion to choose which appeals would be brought before the court, ensuring that only cases presenting relevant economic, political, social, or legal issues that transcend the subjective interests of the case would be judged. 

The new institute was regulated by articles 322 to 329 of the Internal Regulations of the Supreme Federal Court and by articles 1.035 to 1.041 of the Code of Civil Procedure (Law No. 13.105/2015).

This new institutional model led the Supreme Court to begin a process of identity change, moving away from an institution that merely reviews appeals, like state and regional courts, and becoming a Supreme Court.

When we speak of Supreme Courts, we are essentially referring to a collegial body whose essential function is to promote the unity of law through the fair interpretation of the legal order, using the judgment of a specific case only as a means to establish precedents. This practice allows a judge to base their decision on an interpretation given to a legal provision already analyzed previously, instead of following new and perhaps dangerous legal interpretations.

What is a Constitutional Complaint?

The Constitutional Claim is an essential procedural instrument within the Brazilian legal system, used to preserve the authority of decisions issued by the Supreme Federal Court (STF) and to guarantee compliance with its binding jurisprudence, as well as the effectiveness of its decisions. 

It is a fundamental tool for lawyers who work in the defense of fundamental rights and in the control of constitutionality, since it allows them to correct acts that disregard decisions of the Supreme Court. 

However, the applicability of this procedural tool is restricted and must adhere to well-defined criteria. In this practical guide, we will explore when a Claim before the Supreme Federal Court (STF) is appropriate, the legal foundations of this legal instrument, the procedures involved, and the best strategies for lawyers who wish to use it effectively.

The Constitutional Claim is a procedural mechanism provided for in article 102, item I, subparagraph “l”, of the 1988 Federal Constitution, and regulated by articles 988 to 993 of the Code of Civil Procedure (CPC). Its main function is to guarantee the authority of the decisions of the Supreme Federal Court (STF) and the uniform application of its jurisprudence. 

This is a special type of action that does not replace ordinary or extraordinary appeals, but acts as a remedy to protect the jurisdiction of the court, originally provided for by the Constitution as the guardian of the Magna Carta.

Legal Basis for Filing a Claim in the Supreme Federal Court

The admissibility of a Claim before the Supreme Federal Court (STF) is governed by the Code of Civil Procedure and the STF's Internal Regulations. Article 988 of the CPC establishes that a Claim may be used in the following cases:

I – to preserve the jurisdiction of the court;
II – to guarantee the authority of its decisions;
III – against administrative acts or judicial decisions that contradict binding precedents;
IV – to ensure compliance with decisions rendered in concentrated constitutional review.

These provisions demonstrate that the Complaint is not a means of appeal, but rather an exceptional mechanism to ensure uniformity in the interpretation of the Constitution and to prevent bodies of the Judiciary or Public Administration from disregarding precedents and decisions of the Supreme Federal Court.

Hypotheses for Filing a Claim with the Supreme Federal Court

Preservation of the Supreme Court's Jurisdiction

One of the main purposes of the Complaint is to prevent another body of the Judiciary or the Public Administration from usurping the jurisdiction of the Supreme Federal Court (STF). In other words, this occurs when judges of lower courts or state and federal tribunals decide on matters within the Supreme Court's jurisdiction.

A classic example is when a state court attempts to judge the constitutionality of a federal law, a matter that falls under the exclusive jurisdiction of the Supreme Federal Court (STF), according to Article 102, item I, of the Constitution.

Guarantee of the Authority of Supreme Court Decisions

A complaint can be filed when a judicial or administrative decision fails to comply with a decision with erga omnes effects issued by the Supreme Federal Court (STF). This scenario is quite relevant for lawyers seeking to ensure compliance with a favorable decision obtained from the Supreme Court.

For example, if a Court of Justice or Federal Regional Court chooses to ignore the content of a Supreme Federal Court (STF) decision in an Extraordinary Appeal with general repercussion, a Claim may be filed to ensure the effectiveness of the established understanding.

Failure to comply with binding precedents.

Binding precedents were established by Constitutional Amendment No. 45/2004 and have mandatory force for all bodies of the Judiciary and the direct and indirect Public Administration. When a judicial decision or administrative act contradicts a binding precedent, the aggrieved party may file a complaint directly with the Supreme Federal Court (STF).

An example would be a court decision that disregards Binding Precedent No. 13, which prohibits nepotism in public administration. If an authority appoints a relative to a public position in violation of this precedent, a complaint can be filed to annul the act.

It is important to highlight that, although this third hypothesis is better known, the scope of admissibility of a claim against judicial or administrative decisions that do not even correlate with Binding Precedents is broad.

Guarantee of Compliance with Decisions in Concentrated Constitutional Review

The Brazilian Supreme Court (STF) exercises abstract control of constitutionality through actions such as the Direct Action of Unconstitutionality (ADI), the Declaratory Action of Constitutionality (ADC), the Direct Action of Unconstitutionality by Omission (ADO), and the Argument of Non-Compliance with a Fundamental Precept (ADPF). When a jurisdictional or administrative body fails to comply with a decision rendered in these actions, a Claim is admissible.

For example, if the Supreme Federal Court (STF) declares a law unconstitutional in a Direct Action of Unconstitutionality (ADI), and the panel of judges at the Court of Justice continues to apply that law, the interested party may file a Claim to ensure compliance with the Supreme Court's decision.

Strategies for Lawyers When Using a Claim

For a complaint to be admitted and successful, lawyers must observe some practical guidelines:

• To clearly demonstrate the appropriateness The petition must objectively indicate which provision of Article 988 of the Code of Civil Procedure is being violated, as well as comply with all requirements of the Internal Regulations of the Supreme Federal Court.
• Present the exhaustion of appeals. – For a complaint to be admissible, it is necessary to exhaust all ordinary appeal procedures;
• Justify any potential preliminary injunction request. – The danger of delay and the plausibility of the right must be demonstrated in order to obtain an urgent measure.
• Avoid misuse of the Complaint The Supreme Federal Court (STF) has been rigorous in rejecting claims that attempt to replace available appeals.

Conclusion

A complaint filed with the Supreme Federal Court (STF) is a valuable tool for defending the authority of the Supreme Court and standardizing the interpretation of the Constitution in Brazil. Its use must be judicious, respecting legal requirements and court precedents. 

For lawyers, mastering this procedural tool is essential to ensure compliance with Supreme Court decisions and increase the chances of success in the case under discussion. Thus, by understanding when a Claim is appropriate and how to handle it correctly, it is possible to maximize the chances of success and strengthen the Democratic Rule of Law.

REFERENCES

ASSIS, Araken de. Resource Manual [e-book]. São Paulo: Thomson Reuters, 2016.

BAUM, Lawrence. The American Supreme Court. Translated by Francisco Rezek. Rio de Janeiro, Forense Universitária, 1987.

DIDIER JR., Fredie. Course on civil procedural law: civil procedure in the courts, appeals, actions of original jurisdiction of the court and querela nullitatis, incidents of original jurisdiction of the court. 13th ed., Salvador: Ed. JusPodivm, 2016.

JUNIOR, Nelson Nery; NERY, Rosa Maria Andrade. Annotated Code of Civil Procedure. Thomson Reuters, Revista dos Tribunais, 2016. MITIDIERO, Daniel Francisco. Superior Courts and Supreme Courts : From Control to Interpretation, from Jurisprudence to Precedent. São Paulo: Thomson Reuters Revista dos Tribunais, 2017.