If you're a legal professional, you already know that understanding how extraordinary appeals work is essential. In this article, we'll cover the deadlines, the grounds for filing an extraordinary appeal, and how a lawyer can prepare to handle one. Ready?
First of all, this is our second text about the appeals system in the CPC (Brazilian Code of Civil Procedure). In the first one, we discussed the concept of an appeal and its five elements. If you wish to learn more about the concept, you can read the article here:
To facilitate our study of Extraordinary Appeals (RE), I thought of formulating short questions so that we could learn the important points about this type of appeal.
First of all, it is worth noting that both the extraordinary appeal and the special appeal have similar legal regimes, being addressed in the same article of the CPC (article 1.029). Therefore, many rules of the Extraordinary Appeal will be applicable to the Special Appeal (REsp).
What is an Extraordinary Appeal under the Brazilian Code of Civil Procedure (CPC/15)?
As mentioned, in the CPC, the Extraordinary Appeal and the Special Appeal are addressed in the same legal provision, namely, article 1.029 of the procedural legislation.
The article's wording does not immediately identify the grounds for appeal. This is because, if we observe how the article is written, we conclude that both appeals are constitutionally provided for, and consequently, it is the Constitution that should dictate the grounds for their application.
Note the wording of article 1.029: “The extraordinary appeal and the special appeal, in the cases provided for in the Federal Constitution , shall be filed (...)”.
Grounds for filing an Extraordinary Appeal
It is in Article 102 of the Constitution of the Republic that we find the grounds for filing an Extraordinary Appeal.
In the text, we can already see that the Supreme Federal Court has jurisdiction to hear the Extraordinary Appeal.
Regarding the grounds for admissibility, the Federal Constitution stipulates that an Extraordinary Appeal may be filed if the appealed decision:
to contravene any provision of this Constitution;
to declare a treaty or federal law unconstitutional;
to judge the validity of a law or act of local government challenged in light of this Constitution.
Filing of the Extraordinary Appeal
The extraordinary appeal shall be filed by means of a written petition, accompanied by proof of payment of the appeal fees (article 1.007).
The appeal must be filed with the President or Vice-President of the court of origin, within 15 days from the first business day following notification to the parties of the conclusions of the appealed judgment or sentence (articles 1.003, § 5 and 224, caput and § 3).
Facts and Law in Extraordinary Appeals
Many lawyers have doubts regarding the structure of the Extraordinary Appeal.
First of all, it must be said: this is not a "fancy appeal". For a lawyer to succeed in an Extraordinary Appeal, they must pay attention to the writing style of this appeal, which is very different from others.
The main difference is that the Extraordinary Appeal discusses the law, not the factual situation. Consider this simple example:
Titius and Mevius caused an accident.
Mevius was walking distractedly outside the crosswalk, and Titius crashed his car into him.
Mevius died.
Now, Mevius' wife, Athena, is seeking a lifetime pension from Titius for having "taken the life" of her husband.
Imagine that this request was denied at first instance (by a single judge) and at second instance (by a panel of judges), and the reason for the denial was the judges' disregard for a constitutional norm.
Now, Athena needs to file an Extraordinary Appeal with the Supreme Federal Court. What can she argue? Legal issues.
In an Extraordinary Appeal, it is not possible to discuss factual and evidentiary situations, such as: whether Mévio was in the pedestrian crossing or whether Tício intended to kill Mévio.
The facts are not subject to Extraordinary Appeal and, if questioned, may be deemed inadmissible.
Possibility of granting a stay of execution in an Extraordinary Appeal.
Another highly relevant topic for forensic practice is that, as a general rule, an Extraordinary Appeal does not have a suspensive effect (that is, there is no suspension of the effects of the second instance decision).
The practical consequence of the absence of a suspensive effect is precisely the possibility of provisional execution of the appealed judgment, via provisional enforcement of the sentence.
However, the appellant may, in a separate application, request the granting of suspensive effect to an extraordinary appeal, provided that the legal requirements are met (sole paragraph, article 995, CPC).
The structure of the Extraordinary Appeal
Regarding the drafting structure of the Extraordinary Appeal, the Code of Civil Procedure itself (in the subsections of article 1.029) indicates the logic that should be followed:
The presentation of the facts and the law;
Demonstrating the admissibility of the appeal filed;
The reasons for requesting the amendment or invalidation of the appealed decision.
Furthermore, in addition to the appeal document, the documents necessary for the judgment of the appeal must be attached to the case file.
Furthermore, the Supreme Federal Court may disregard any formal defect in the appeal, provided it does not consider it serious. However, for this to be the case, the appeal must be timely (that is, filed within the time limit established by law).
Demonstrating General Repercussion in the Supreme Federal Court
The general repercussion of the constitutional issue submitted to the Supreme Federal Court for review by means of an Extraordinary Appeal is a prerequisite for the admissibility of this appeal (CF 102 § 3).
For procedural law experts, general repercussion is an indeterminate concept.
There are doctrinal currents that argue, for example, that the general repercussion can be legal, economic, social, or political, as long as it transcends the subjective interests of the case (that is, the effects of the decision must go beyond the plaintiff and defendant in the process).
We can consider issues with general repercussions to be those related to human rights; the dignity of the human person; citizenship, nationality, political rights; national sovereignty; economic issues, among others.
How can a lawyer prepare to file an extraordinary appeal?
Because it is an exceptional remedy and is directed to the Supreme Federal Court, the process of preparing an extraordinary appeal is meticulous.
To help you with your studies, I spoke with IDP professor Guilherme Pupe. He holds a doctorate and a master's degree in Law, is a lawyer, and the author of the book "The Law in its Guts – Judicial Discretion in Brazil, Between Strategy and Arbitrariness".
According to Professor Guilherme Pupe, the Extraordinary Appeal should be conceived and constructed "from the back to the front."
1. Importance of pre-questioning
Therefore, the lawyer should consider constitutional grounds for any potential appeal from the initial filing or response, in order to raise these constitutional issues at the first opportunity to speak in the proceedings.
This prior questioning of constitutional provisions avoids a possible inadmissibility of appeals due to "lack of prior questioning," a very common error in legal practice.
2 Direct offenses
Another important tip from Professor Guilherme Pupe: a lawyer can only challenge a court decision through an Extraordinary Appeal (RE) if it contains a direct violation of a constitutional provision.
This is because the Supreme Federal Court does not allow the filing of an Extraordinary Appeal (RE) to challenge indirect violations of the Federal Constitution.
Therefore, before filing an Extraordinary Appeal, the lawyer must conduct extensive case law research to analyze whether the violated constitutional provision is considered a direct or indirect offense to the Constitution.
3. Research on General Repercussion
Another important piece of research that the lawyer should conduct, according to Professor Guilherme Pupe, is precisely whether the topic to be discussed in the Extraordinary Appeal has been the subject of a thesis in General Repercussion.
If the thesis has general repercussions, two hypotheses must be analyzed:
If the ruling has already been made, and it is not favorable to your case, an appeal is not admissible.
If the legal argument is pending judgment, you can file an Extraordinary Appeal (RE) and await the Supreme Federal Court's ruling. In this way, even if the Extraordinary Appeal is stayed until the legal argument is judged, when the Supreme Federal Court decides, that decision could impact your case.
4 Abstract structure
As we mentioned earlier, the Extraordinary Appeal does not analyze facts or evidentiary issues; it is an exceptional appeal whose purpose is to judge questions of law.
In this way, Professor Guilherme Pupe points out that the structuring of the appeal by the lawyer should be as abstract as possible, in order to avoid inadmissibility due to factual/evidentiary issues.
The discussion surrounding the constitutional issue should be abstract, so that the Supreme Federal Court can identify only the appealed judgment and its appeal, avoiding the examination of facts and evidence.
5. Demonstrate the existence of General Repercussion.
Finally, the lawyer must demonstrate in their Extraordinary Appeal the existence of general repercussion, showing the Supreme Federal Court that their case transcends mere individual interest.
By putting these valuable tips into practice, you as a lawyer can achieve excellent results with your Extraordinary Appeal.
Furthermore, I would like to inform you that there are several articles on Civil Procedural Law here on the IDP Online blog , should you wish to delve deeper into other topics.
It's also worth mentioning that to delve deeper into Civil Procedural Law, you can pursue a specific specialization with leading professionals in the field, thus gaining a better understanding of the appeals system, procedural rules, and strategies used to effectively carry out the process.
That's all for today, see you in the next article!
References
ALVIM, Arruda. Civil Litigation in the CPC/2015. Arruda Alvim. 2nd ed. rev., updated and expanded. São Paulo. Thomson Reuters Brasil, 2022.
BRAZIL. Law No. 13.105/15, of March 16, 2015, which established the Code of Civil Procedure. In: Palácio do Planalto.
NERY JÚNIOR, Nelson. Annotated Code of Civil Procedure. Nelson Nery Junior, Rosa Maria de Andrade Nery. 6th ed. São Paulo: Thomson Reuters Brasil, 2021.
MEDINA, José Miguel Garcia. Annotated Code of Civil Procedure. José Miguel Garcia Medina. 6th ed. São Paulo: Thomson Reuters Brasil, 2022.
