Here at the IDP Blog, we dedicate ourselves to various branches of Law in an integrated way. 

From the perspective of Civil Procedural Law, Professor Manassés Lopes has already discussed, for example, the concept and types of appeals provided for in the 2015 Code of Civil Procedure.

He has already presented the Embargos de Divergência (Appeals for Divergence) as part of the daily forensic work of lawyers practicing before the Superior Courts. He has also contributed practical aspects regarding the Special Appeal and the Extraordinary Appeal.

On another occasion, we discussed some types of civil appeals and practical solutions.

Now, combining knowledge of Constitutional Law and Civil Procedure, we will discuss the Claim in the Supreme Federal Court.

So, what exactly is this type of judicial measure? What are the grounds for its application? Is there also a provision for a complaint before the Superior Court of Justice? Are the grounds the same?

Let's move on!

Constitutional complaint: combining the Federal Constitution, the Code of Civil Procedure, the Internal Regulations of the Supreme Federal Court, and Ordinary Law.

The 2015 Code of Civil Procedure , in its article 988, outlines the circumstances under which a legal mechanism known as a Claim/Complaint is applicable.

It is important to note that the article is within Book III , concerning court proceedings and means of challenging judicial decisions; and Title I , which governs...

The order of proceedings and proceedings within the original jurisdiction of the Courts.

Therefore, it is not part of Title II , so it is not an appeal. According to Minister Gilmar Mendes, a professor at IDP, and in accordance with the majority opinion in specialized literature, the legal nature of a claim is that of an action properly speaking.

According to the CPC/15 , a complaint may be filed by the interested party or the Public Prosecutor's Office in the following cases:

• to preserve the jurisdiction of the Court;
• to guarantee the authority of the Court's decisions;
• to ensure compliance with binding precedents and decisions of the Supreme Federal Court in concentrated constitutional review; and
• to ensure compliance with a ruling issued in a case concerning the resolution of repetitive claims or an incident concerning the assumption of jurisdiction.

There are also two grounds for inadmissibility:

• if proposed after the final judgment of the contested decision; and
• This proposal aims to ensure compliance with a ruling in an Extraordinary Appeal with recognized general repercussion or a ruling issued in the judgment of repetitive Extraordinary or Special Appeals, when ordinary instances have not been exhausted.

The context of a complaint before the Supreme Federal Court (STF) is more precisely regulated in the 1988 Federal Constitution.

Article 102, I, l , provides that it is the responsibility of the Supreme Court to process and judge, in the first instance, claims for the preservation of its jurisdiction and the guarantee of the authority of its decisions.

Further on, Article 103-A, § 3, provides that a Claim may be filed with the Supreme Federal Court to challenge an administrative act or judicial decision that contradicts an applicable binding precedent or that is applied improperly.

In this case, if the complaint is deemed admissible, the Supreme Federal Court (STF) must annul the administrative act or overturn the challenged judicial decision, and order that another decision be issued with or without the application of the binding precedent, depending on the specific case.

The specific procedures for a constitutional complaint are set out in the Internal Regulations of the Supreme Federal Court , articles 156 to 162, and in Law No. 8.038/90 , which establishes procedural rules for proceedings before the Superior Court of Justice and the Supreme Federal Court, in articles 13 to 18.

We therefore understand that the ultimate purpose of a constitutional complaint is to preserve the institutional position of the Supreme Court, strengthen the hierarchical structure of the Judiciary, standardize jurisprudence, and guarantee legal certainty.

Claims, repetitive appeals, and general repercussion: is reconciliation possible?

One question that always arises is: is a Claim admissible to preserve a precedent established by the Superior Court? Would it be possible to use a Claim to ensure compliance with a ruling on an Extraordinary Appeal with general repercussion or a repetitive Special Appeal?

We need to reflect.

The Superior Court of Justice understands that a Claim is not admissible to preserve a precedent established in a repetitive Special Appeal. It cannot be understood as a kind of substitute for an appeal, which returns to the Court the debate regarding the concrete application of the thesis (STJ, AgInt in Rcl 39.760/SP, Rapporteur Minister Marco Aurélio Bellizze, Second Section, DJe of 04/06/2020).

According to a recent ruling:

“Such action is intended to preserve the jurisdiction of the STJ or to guarantee the authority of its decisions, and is not suitable for preserving its jurisprudence, but rather the authority of a decision taken in a specific case and involving the parties involved in the litigation from which it originates” (AgInt in Rcl No. 41.776/RO, rapporteur Minister Francisco Falcão, First Section, decided on 11/9/2021, DJe of 11/11/2021).

The Supreme Federal Court, however, maintains a different stance.

Although it has already been stated that Complaints are not intended to be simple substitutes for ordinary or extraordinary appeals, they are accepted in order to preserve the authority of judgments made with general repercussions.

Thus, the Supreme Court established the demonstration of the teratological nature of the challenged decision as one of the prerequisites for the admissibility of the Claim, in cases where the understanding established through general repercussion applies (Rcl 33709 AgR, Rel. Rosa Weber, First Panel, decided on 09/20/2019).

According to Minister Gilmar Mendes (Rcl 26.093/PI, DJe of 6/2/2017), other cumulative requirements are:

• the exhaustion of ordinary remedies;
• the filing of an internal appeal against a single-judge decision that stays the proceedings, summarily dismisses an appeal within the jurisdiction of the Supreme Federal Court, or deems it moot; and
• the plausibility of the argument that the Supreme Court's understanding, as established in the general repercussion ruling, was erroneous. a quo.

To illustrate, a recent ruling by the Brazilian Supreme Court established that:

1. Notwithstanding the exhaustion of jurisdiction in the instance a quoThe challenged ruling decided the substantive case taking into account the aforementioned precedents. 2. Thus, comparing the challenged decision with the cited precedents, and respecting the cognitive scope of this instrument, no teratology is found in the judicial act that is alleged to violate the precedents of this COURT” (Rcl 56927 AgR, Rel. Alexandre de Moraes, First Panel, decided on 02/13/2023).

How can IDP help me?

We have noticed that the two Superior Courts hold different positions regarding the admissibility of the Claim in similar situations.

It is essential that you, as a legal professional, have specific and in-depth knowledge when handling appeals and actions in the Superior Court of Justice and the Supreme Federal Court, in order to achieve the success you deserve.

IDP offers a Master's Degree in Law , which has several research areas, and you're sure to find one that suits you.

Among the planned research areas, you will have the opportunity to delve into: Jurisdiction and Civil Procedural Law in the Constitutional Order. At IDP, you have access to one of the best faculty bodies in Brazil. These are professors of the highest academic and professional caliber, leading figures in the field.

You also have access to a superb infrastructure, including a virtual library with over 25 titles in the fields of Administration, Architecture and Urban Planning, Computer Science, Communication, Law, Economics, Engineering, Journalism, Advertising, Psychology, and International Relations.

And that's without even mentioning access to digital platforms like RTOnline and HeinOnline, and exchange opportunities at more than 10 universities around the world!

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References

DIMOULIS, Dimitri. Course on constitutional procedure: Constitutional review and constitutional remedies. São Paulo: Atlas, 2016.
MENDES, Gilmar Ferreira. Constitutional law course. Sao Paulo: Saraiva, 2017.