Special and extraordinary appeals are present in everyday legal practice, so it is not uncommon for legal professionals to need to draft an appeal to the Supreme Courts of our country.

Here on the IDP blog, we've already discussed how you can prepare an Extraordinary Appeal , an appeal under the jurisdiction of the Supreme Federal Court.

At that time, we mentioned that the Extraordinary Appeal (RE) and the Special Appeal (REsp) are addressed in the same legal provision of the CPC, so that their legal rule can be found in article 1.029 of the procedural legislation.

However, when dealing with a special appeal, there are some particularities that we must address. This is because, in the case of a Special Appeal, it is judged by the Superior Court of Justice, in circumstances distinct from an Extraordinary Appeal.

The constitutional rules for the Special Appeal

To begin, it is important to mention that the Special Appeal is an exceptional form of appeal, not constituting a third or fourth level of jurisdiction, nor a procedural instrument for correcting injustice.

Like the Extraordinary Appeal (RE), the Special Appeal (Recurso Especial) is also constitutionally provided for. This is article 105 of the Constitution of the Federative Republic of Brazil , which deals with the powers of the Superior Court of Justice.

To facilitate your studies, I have developed a synoptic chart that will help you understand the Special Appeal. Please note:

Jurisdiction of the Superior Court of Justice (art. 105, III, CRFB/88)
What type of appeal is it?	Special Appeal
Who decided?	TRF (Regional Federal Courts) or TJ (State Court of Justice)
What is the flaw in the decision that will be appealed?	To violate a treaty or federal law, or to deny its validity;
	To uphold the validity of a local government act challenged in light of federal law;
	To give federal law an interpretation that differs from the one given to it by another court.

Thus, of the three scenarios outlined in the table above, if the case is decided, in a single or final instance, by the Federal Regional Courts or by the courts of the States, the Federal District and Territories, a Special Appeal to the Superior Court of Justice will be admissible.

When is it not possible to file a Special Appeal?

In general terms, it is worth saying that this type of appeal is not intended for the review of matters of fact or evidence, so its purpose is to protect and control the correct application of the law. 

Therefore, when you file a Special Appeal, you should remember that only matters of law can be analyzed or reviewed. 

This logic behind the Special Appeal (REsp) stems from its primary purpose: to control the legality of court decisions, as well as to promote the uniform interpretation of federal laws.

Need to exhaust all possibilities. 

Another important characteristic is that both the Special Appeal and the Extraordinary Appeal require the exhaustion of ordinary appeals. 

This means that Extraordinary Appeals (RE) and Special Appeals (REsp) will not be admitted directly , that is, while there is still a possibility of appeal in the court of origin.

Does a Special Appeal have a suspensive effect?

No! That's another common characteristic of both the Extraordinary Appeal (RE) and the Special Appeal (REsp). In other words, both appeals lack automatic suspensive effect. 

Consequently, the decision rendered by the lower courts becomes effective immediately, allowing for the provisional enforcement of the judgment, pursuant to Article 520 of the Code of Civil Procedure. 

Although lacking suspensive effect, it is possible to request such effect from the rapporteur, as per article 1.029, § 5 of the CPC.

Is it possible to file a Special Appeal against a decision of a Small Claims Court?

This was a much-debated issue in the Superior Court of Justice.

This is because, according to the Constitutional Charter, a decision from the Court (TRF or TJ) is required in order to file a special appeal.

The ruling of the Special Civil Court , in turn, does not come from a court, but rather from an appeals panel, which is composed of judges who make up the first instance court.

Therefore, no special appeal is admissible against a decision rendered by a second-instance body of the Special Courts. This is the content of Precedent 203 of the Superior Court of Justice (STJ ).

Therefore, for an appeal to be admissible, a final decision from the full court is required. Thus, a single-judge decision by the rapporteur is insufficient; a judgment is necessary for the appeal to be filed.

The petition for filing a Special Appeal

The appellant must file the Special Appeal (REsp) complying with the requirements mentioned in the Federal Constitution, as well as the rules set forth in the Code of Civil Procedure (CPC). If any of the requirements are missing, the appeal cannot be considered.

When drafting the initial petition, the appellant must pay attention to article 1.029 of the CPC (Code of Civil Procedure), presenting the following order in their appeal:

(i) the statement of facts and law; 

(ii) proof of the admissibility of the appeal filed; and 

(iii) the reasons for the request for amendment or invalidation of the appealed decision.

The relevance of the federal question

Furthermore, when drafting the appeal, the lawyer must demonstrate the relevance of the federal issue being discussed. This is a rule established by Constitutional Amendment 125/2022.

This new development was explained on "Entender Direito," a television program of the Superior Court of Justice, which featured two professors from IDP Online, Luiz Rodrigues Wambier and Paulo Mendes.

Professor Paulo Mendes mentioned that "if we look at article 105 of the Constitution, it becomes very clear to legal professionals that the Superior Court of Justice was created with the primary function of standardizing the understanding of infra-constitutional legislation."

It's worth checking out the full interview!

Discussion of the Appeals System at IDP

It's worth remembering that the Brazilian appeals system has already been studied here in the IDP Online mini-courses.

Furthermore, it's worth mentioning that there are several articles here on the IDP Online blog about Civil Procedural Law , should you wish to delve deeper into other topics.

Specialize in Civil Procedure here at IDP!

With IDP Online's postgraduate program, you can study from anywhere in Brazil, including exchanging ideas live with the country's most renowned professors. This will greatly facilitate your learning journey, as you will have the support of the leading professionals in the field. 

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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.