Introduction
Within the framework of Brazilian Procedural Law, the strategy to be adopted during a legal process uniquely requires anticipating not only the eventual judgment, but also the potential path that will be followed throughout the entire process, including the possibility of that process reaching a higher court.
Within the constitutional text, several appeals were provided for, especially regarding those related to the delimitation of the powers of the higher courts. Among them, the following stand out: the special appeal, the ordinary appeal, and the extraordinary appeal.
In this article, we will delve into the study of the suitability and institutional design outlined by the Constitution, so that the reader can discern the best strategy to apply in each case.
Basic concepts
To better understand the existing appeal tools, it is important to establish basic concepts so that we can delve deeper into this material in the future.
Fredie Didier Jr. states that "the extraordinary appeal (or exceptional appeal, or appeal of superposition) is a genus of which the extraordinary appeal to the STF (art. 102, III, CF/1988) and the special appeal to the STJ (art. 105, III, CF/88) are species."
In short, we have one genre (extraordinary appeal) from which four main species are extracted: special appeal directed to the Superior Court of Justice (STJ), extraordinary appeal destined to the Supreme Federal Court (STF), appeal for review destined to the Superior Labor Court (TST), and special electoral appeal destined to the Superior Electoral Court (TSE).
The special appeal to the Superior Court of Justice (STJ) is, in fact, a result of the division of the grounds for extraordinary appeal to the Supreme Federal Court (STF) (before the 1988 Constitution), which served as a means of challenging a judicial decision for violation of the Constitution and federal legislation.
With the advent of the Superior Court of Justice (STJ) due to the promulgation of the 1988 Constitution, the grounds for the admissibility of the former extraordinary appeal were divided between the Supreme Federal Court (STF) and the STJ, so that the STF would be solely responsible for judging essentially constitutional matters , while the STJ was created with the purpose of settling controversies based on infra-constitutional law.
A special appeal is nothing more than an extraordinary appeal filed with the Superior Court of Justice (STJ), especially when considering the admissibility requirements of each one.
Although not the focus of this article, the appeal for review and the special electoral appeal have the same role in specialized courts, obligating the TST (Superior Labor Court) and the TSE (Superior Electoral Court) to settle controversies in labor and electoral matters, respectively.
The special appeal, as defined in article 105, item III, of the Federal Constitution, refers to the procedural tool necessary for controlling the legality of a decision. In other words, the Superior Court of Justice is responsible for analyzing whether the appealed decision complies with existing infra-constitutional provisions.
Regarding the extraordinary appeal, provided for in article 102, III, of the Constitution, the text establishes the competence of the Supreme Federal Court to analyze and judge whether the decision that is the subject of the appeal infringes the constitutional text in any way.
However, the Special Appeal (RESP) and the Extraordinary Appeal (RE) are not the only ways to obtain judicial relief from the Superior Court of Justice (STJ) or the Supreme Federal Court (STF) on appeal.
In the procedural arrangement, the constitutional text provided for a specific appeal in cases where a particular claim sought through constitutional remedies was denied: the ordinary appeal.
The choice between an ordinary appeal and an extraordinary appeal is a circumstantial decision in a judicial process. The choice is made based on each specific procedural scenario.
In simplified terms, an ordinary appeal is intended to challenge decisions of lower courts, being used in situations where the judgment is issued by a single judge or regional and second-instance courts. It is based on factual and legal issues, allowing for a broad review of the facts and evidence presented in the case.
Although they may seem similar, ordinary appeals and appeals on the merits are distinct procedural instruments, especially when it comes to admissibility requirements. Professor Araken de Assim lists this distinction in his work "Manual dos Recursos" (Manual of Appeals):
The rules governing ordinary appeals are entirely different. Appeals are generally admissible against judgments (art. 204). The content of this decision is identical to a sentence, fitting the hypotheses of arts. 485 and 487. However, the ruling originates from the courts, generally second-instance judicial bodies, perhaps from a superior court, as occurs in the case of art. 102, II, a, of the 1988 Constitution, a hypothesis reproduced (in terms, since the legislator dared to make an irrelevant terminological modification) in art. 1.027, I, and exhibits a collegial formation.
On the other hand, the extraordinary appeal has a more restricted and technical scope, being applicable only in specific cases provided for constitutionally , such as the violation of a constitutional norm. This appeal is directed to the Supreme Federal Court (STF) and aims to guarantee uniformity in the interpretation of the Federal Constitution, limiting itself to eminently legal issues.
The correct choice between ordinary and extraordinary appeals depends on understanding the grounds for admissibility of each.
An ordinary appeal is available against decisions of the regional federal courts and courts of justice in the cases provided for in article 102 of the Constitution.
The extraordinary appeal, provided for in article 102, applies when there is a decision that contradicts a constitutional provision or the jurisprudence of the Supreme Federal Court (STF), where the decision was made during the appeal phase by the Court of Justice (TJ) or Regional Federal Court (TRF) responsible for the case.
Furthermore, analyzing the viability of appeals requires a detailed assessment of formal and substantive requirements. Ordinary appeals offer a broader and more accessible approach, allowing for the re-examination of facts and evidence.
In turn, the extraordinary appeal requires the demonstration of general repercussion and the presence of a relevant constitutional issue, without the court needing to delve into the factual discussion of the controversy presented.
Improper handling of legal resources can result in the inadmissibility of the request, causing harm to the appealing party. Therefore, the procedural strategy must be carefully planned, considering the subject of the appeal, the type of rule violated, and the competent body for judgment.
The importance of choosing the appropriate appeal stems from the lack of application of the fungibility principle by both Superior Courts. Let's examine the established understanding in the Superior Court of Justice (STJ) and the Supreme Federal Court (STF):
Superior Court of Justice:
CRIMINAL AND CRIMINAL PROCEDURE LAW. DRUG TRAFFICKING. ORDINARY APPEAL. INTERPOSITION AGAINST A DECISION THAT DENIED THE APPEAL. INADMISSIBILITY. INAPPLICABILITY OF THE PRINCIPLE OF FUNGIBILITY OF APPEALS. APPEAL NOT ADMITTED.
I. CASE UNDER EXAMINATION 1. Ordinary appeal filed by JMA against a judgment of the Court of Justice of the State of Mato Grosso do Sul, which denied the appeal. The appellant was sentenced to 5 years and 10 months of imprisonment, in a closed regime, and 583 days-fine, for the crime of drug trafficking, as provided for in art. 33 of Law No. 11.343/06. The defense alleges a lack of valid grounds for increasing the base sentence and requests the establishment of a semi-open initial regime.
II. QUESTION UNDER DISCUSSION 2. The question under discussion is whether an ordinary appeal in habeas corpus is admissible against a judgment denying a criminal appeal, in light of the constitutional grounds for its admissibility and the possibility of applying the principle of fungibility of appeals.
III. REASONS FOR DECISION 3. In the case at hand, the ordinary appeal was filed against a judgment that denied the appeal, which does not fall under any of the constitutionally foreseen hypotheses for the judgment of the ordinary appeal by the Superior Court of Justice (art. 105, II, of the Federal Constitution).
4. This Court has established a precedent that the principle of fungibility of appeals does not apply when an ordinary appeal is filed instead of a special appeal, as in the present case.
IV. ORDINARY APPEAL NOT ADMITTED.
(RHC No. 193.473/MS, rapporteur Justice Daniela Teixeira, Fifth Panel, decided on 10/22/2024, published in the Official Gazette on 10/28/2024.)
Supreme Federal Court:
INTERNAL APPEAL IN ORDINARY APPEAL IN WRIT OF MANDAMUS. EXHAUSTIVE LIST CONTAINED IN ARTICLE 102, II, OF THE CONSTITUTION OF THE REPUBLIC. APPLICATION OF THE PRINCIPLE OF FUNGIBILITY. INAPPLICABILITY. ABSENCE OF WELL-FOUNDED AND OBJECTIVE DOUBT. 1. Absent a situation of well-founded and objective doubt regarding the applicable appeal, it is inapplicable, in light of the principle of fungibility, to accept the ordinary appeal filed by the appellant as an extraordinary appeal. Precedents. 2. Furthermore, the appeal whose processing was denied by the single-judge decision under appeal did not develop arguments aimed at demonstrating the existence of general repercussion of the constitutional matter under debate. This scenario, in itself, would give rise to the failure of the appeal, should it be accepted as an extraordinary appeal. Precedents. 3. Article 85, § 1, of the CPC/2015 is inapplicable, as this is an appeal filed in a writ of mandamus (Article 25 of Law No. 12.016/2009 and Precedent 512/STF). 4. Internal appeal acknowledged and denied, with the application, in the case of a unanimous vote, of the penalty provided for in Article 1.021, § 4, of the Code of Civil Procedure, calculated at a rate of 1% (one percent) on the updated value of the case.
(STF – Appeal in the Motion for Clarification – 37822, Rapporteur: MIN. ROSA WEBER, Judgment Date: 05/24/2021, Publication Date: 05/28/2021)
The mistaken filing of an appeal other than the one that is actually applicable jeopardizes the appeal claim, since if the wrong appeal is filed and is not subsequently considered by the court, no new deadline will be granted for filing the correct appeal.
Conclusion
Among lawyers, there's a saying that "no good lawyer costs as much as a bad lawyer." In short, this popular saying points to a reality that clients cannot ignore: a bad lawyer who charges a cheap fee has a much greater destructive potential than a good lawyer with a higher cost.
For the purposes of this text, a good lawyer is defined as one who pays attention to the specific details of the case they are handling, enabling them to anticipate potential future scenarios to some extent, and who knows how to properly utilize the procedural tools at their disposal.
In conclusion, the choice between an ordinary appeal and an extraordinary appeal requires a careful analysis of the specific circumstances of the case. Knowledge of the grounds for appeal, admissibility requirements, formal and substantive requirements, and the distinction between the different levels of appeal are fundamental to ensuring the proper conduct of the proceedings and the full exercise of the right to appeal.
References
ASSIS, Araken de. Resource Manual [e-book]. São Paulo: Thomson Reuters, 2016.
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.
