The Special Appeal and the Extraordinary Appeal are two of the main instruments used in the Brazilian judicial system to submit decisions rendered in the first and second instances to the analysis of the higher courts, especially when they involve legal issues relevant to the national legal system. 

These resources are fundamental to ensuring the uniformity and correct interpretation of sub-constitutional and constitutional laws. However, despite being frequently confused by legal professionals and non-legal professionals alike, each of them has its own characteristics and distinct purposes, making it crucial to understand their differences, admissibility requirements, and when to use them.

This text details the main differences between the Special Appeal and the Extraordinary Appeal, as well as how lawyers act through these appeals in the Superior Court of Justice (STJ) and the Supreme Federal Court (STF).

1. Introduction

Appeals are procedural instruments that allow parties dissatisfied or "wronged" by a judicial decision to appeal to higher courts to review or modify the magistrates' understanding. The most common and well-known example of an appeal in civil law is the appeal process, through which it is possible to submit the decision rendered by the judge of first instance to the analysis of the Court of Justice. 

Within the higher courts, the Special Appeal and the Extraordinary Appeal play fundamental roles in protecting constitutional rights and in the correct interpretation of infra-constitutional norms, since it is through them that the parties can submit judicial decisions that theoretically have disregarded the norms of the Brazilian legal system for review by the Ministers of the STF and the STJ. 

Both appeals, while similar in some aspects, have crucial differences in terms of jurisdiction and purpose. While the Special Appeal is directed to the Superior Court of Justice (STJ) and deals with issues of interpretation of federal (sub-constitutional) legislation, the Extraordinary Appeal is judged by the Supreme Federal Court (STF) and aims to discuss constitutional matters.

2. Special Appeal

The Special Appeal is provided for in Article 105, item III, of the Federal Constitution, regulated by Article 1029 et seq. of the Code of Civil Procedure (CPC), and is directed to the Superior Court of Justice (STJ). Its purpose is to guarantee the correct interpretation of federal and infraconstitutional laws, ensuring that national norms are applied uniformly throughout the country.

In most cases, a Special Appeal may be filed when:

• The appealed decision contradicts a treaty or federal law or denies its validity.
• If there is a divergence in the interpretation of federal law between regional or state courts, or between these and the Superior Court of Justice (STJ).
• To uphold the validity of a local government act challenged in light of federal law.
• The appealed decision gave federal law an interpretation that differed from that given to it by another court.

Eligibility Requirements

For a Special Appeal to be admitted, it is necessary that:

• The issue under discussion pertains to federal infraconstitutional law, and therefore cannot be subject to review of facts or evidence, according to Precedent 7 of the Superior Court of Justice (STJ).
• The legal issue must have been raised in the lower court, meaning the matter must have been effectively discussed and decided (STJ Precedent 211).
• The federal issue is relevant, as per § 2 of article 105 of the Federal Constitution, included by Constitutional Amendment 125/2022.

3. Extraordinary Appeal

The Extraordinary Appeal is provided for in article 102, item III, of the Federal Constitution, also regulated by article 1.029 of the CPC, and is addressed to the Supreme Federal Court (STF). 

Unlike the Special Appeal, the Extraordinary Appeal deals with constitutional matters, being one of the main and most used instruments to ensure respect for the Constitution in the Brazilian legal system.

An Extraordinary Appeal may be filed when:

• The appealed decision contradicts a provision of the Constitution.
• The decision declares a treaty or federal law unconstitutional.
• The decision will uphold the validity of the challenged local law or government act in light of the Constitution.

Eligibility Requirements

Like the Special Appeal, the Extraordinary Appeal also has important admissibility criteria that must be observed:

• The matter must be strictly constitutional. Discussions regarding the interpretation of federal laws that are not subject to appeal in an Extraordinary Appeal (Supreme Court Precedent 636).
• The issue must have been raised in the lower courts, meaning the constitutional matter must have been brought up and decided.
• The issue must demonstrate general repercussion, meaning it must transcend the individual interests of the parties and possess social, economic, or political relevance for the legal system.

4. Special Appeal vs. Extraordinary Appeal

As you may have noticed, although both appeals aim to review decisions of lower courts, the differences between them are significant. These distinctions affect not only the courts that hear them, but also the type of subject matter that can be discussed and the requirements for its admissibility, as demonstrated below:

Main Differences Between Special Appeal and Extraordinary Appeal

	Special Appeal	Extraordinary Appeal
Competent Court	Superior Court of Justice (STJ)	Federal Supreme Court (STF)
Subject Matter for Appeal	Questions related to the interpretation of federal laws.	Questions related to constitutional interpretation
Legal Provision	Article 105, III, of the Federal Constitution	Article 102, III, of the Federal Constitution
Preliminary question	Required for federal subjects.	Required for constitutional matters.
General Repercussion	Applicable to relevant federal matters.	Necessary for relevant constitutional issues.
Fact Review	Forbidden (STJ Precedent 7)	Forbidden (Supreme Court Ruling 279)
Main Objective	To standardize the interpretation of federal laws.	To guarantee the supremacy of the Constitution.

5. Lawyers' Role in the Supreme Federal Court (STF) and the Superior Court of Justice (STJ)

The work of lawyers in the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), within the scope of special and extraordinary appeals, requires technical knowledge, both of the admissibility requirements and of the prevailing jurisprudence in each court. Both courts have distinct jurisdictions, and adequate preparation by lawyers is essential for the success of these appeals and the best possible defense of their clients. 

Lawyers working before the Superior Court of Justice (STJ), when handling Special Appeals, must focus on the correct interpretation of federal laws, which requires an in-depth analysis of the court's jurisprudence, applicable precedents, and even doctrinal interpretations of the provisions. One of the main challenges is demonstrating that the issue discussed in the appeal meets the admissibility requirements, especially regarding pre-trial motions and the impossibility of reviewing facts.

In the Supreme Federal Court, the work of lawyers in Extraordinary Appeals requires special attention to constitutional issues and demonstrating general repercussion. The main mission of the lawyers is to persuade the court that the issue under discussion transcends the interests of the parties and has constitutional relevance for the country.

Furthermore, the Supreme Federal Court (STF) is highly selective regarding the appeals it admits. Therefore, lawyers need to be clear in their legal arguments and base their theses preferably on precedent decisions of the court, using advanced constitutional interpretation techniques.

The challenges in practicing before both courts are numerous, as they involve technical resources and require lawyers to have specialized knowledge in constitutional and sub-constitutional law, since the courts are becoming increasingly selective with the appeals they admit. However, it is worth noting that the opportunity to contribute to the standardization of the interpretation of norms and to the consolidation of Brazilian jurisprudence is extremely valued in the careers of lawyers who practice before these courts.

6. Conclusion

The Special Appeal and the Extraordinary Appeal are essential procedural instruments to guarantee the correct interpretation and application of laws in Brazil, each with its specific focus: the Special Appeal within the infraconstitutional sphere and the Extraordinary Appeal within the constitutional sphere. Understanding the main differences between these appeals, as well as the requirements for their admissibility and the objectives they pursue, is fundamental for the effective performance of lawyers who handle cases in the higher courts.

For lawyers, practicing before the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) requires not only technical knowledge, but also the ability to argue based on precedents and demonstrate the relevance of the issues discussed. In an increasingly complex legal landscape, mastering these legal resources can be crucial to ensuring the defense of rights and the correct application of the law.

Thus, the Special Appeal and the Extraordinary Appeal are indispensable tools in the pursuit of justice and uniformity in the Brazilian legal system, promoting legal certainty and consistency in the application of rules.

References

ACS. Appeal. Court of Justice of the Federal District and Territories – TJDFT , 2024. Available at: https://www.tjdft.jus.br/institucional/imprensa/campanhas-e-produtos/direito-facil/edicao-semanal/apelacao . Accessed on: October 16, 2024.

ACS. Special Appeal vs. Extraordinary Appeal. Court of Justice of the Federal District and Territories – TJDFT , 2023. Available at: https://www.tjdft.jus.br/institucional/imprensa/campanhas-e-produtos/direito-facil/edicao-semanal/recurso-especial-x-recurso-extraordinario . Accessed on: October 16, 2024.

BICALHO, Patrícia. What is a special appeal, when is it applicable, and what are the requirements? Aurum , July 12, 2023. Available at: https://www.aurum.com.br/blog/recurso-especial/ . Accessed on: October 16, 2024.

BRAZIL. [Constitution (1988)]. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: Presidency of the Republic, [2016]. Available at: http://www.planalto.gov.br/ccivil_03/Constituicao/Constituiçao.htm. Accessed on: October 16, 2024.

BRAZIL. Law No. 13.105/15, of March 16, 2015 , which established the Code of Civil Procedure. In: Palácio do Planalto.

BRAZIL. STJ News. Relevance criterion for special appeals will only be required after the future regulatory law comes into effect. STJ, October 19, 2022. Available at: https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/2022/19102022-Criterio-de-relevancia-do-recurso-especial-so-sera-exigido-apos-vigencia-da-futura-lei-regulamentadora.aspx . Accessed on: October 16, 2024.

FACHINI, Tiago. Special appeal in the New CPC: requirements, hypotheses and deadline. Projuris , July 19, 2022. Available at: https://www.projuris.com.br/blog/recurso-especial/#:~:text=O%20recurso%20especial%20%C3%A9%20cab%C3%ADvel,lhe%20haja%20atribu%C3%ADdo%20outro%20tribunal . Accessed on: October 16, 2024.

Extraordinary appeal in practice: from preparation to judgment of the Extraordinary Appeal. IDP Blog , November 11, 2022. Available at: https://direito.idp.edu.br/idp-learning/direito-processual-civil/recurso-extraordinario/ . Accessed on: October 16, 2024.