Having knowledge of the Brazilian appeals system is essential for all legal professionals. Whether in private or public practice, even in the Public Prosecutor's Office, and especially in the Judiciary, knowing how to appeal, by what means, and when is crucial to legal practice.

We have already discussed the concept of appeals in the legal system and their purpose here on the IDP Blog in the article " Appeals: learn the concept and types of appeals in the CPC/15 " by Professor Manassés Lopes.

We discussed:

• Five fundamental principles that comprise any and all resources;
• The types of appeals within the exhaustive list of current federal legislation; and 
• The content of first and second instance decisions.

In this text, we intend to delve a little deeper into four types of appeals as means of challenging judicial decisions in the ordinary courts. We will also seek to point out some concrete solutions that may be useful for your legal practice.

You can check out other articles here on the Blog about specific aspects of appeals filed with Higher Courts, such as the Special Appeal and the Extraordinary Appeal.

Come on!

Recursive species: what are their main characteristics?

1. Appeal

Appeals are one of the best-known legal remedies available to legal professionals. Didier even states that it is the quintessential remedy. It is covered in articles 1.009 to 1.014 of the Brazilian Code of Civil Procedure (CPC/15) – it's worth checking out.

It is used when a party challenges a final and definitive judgment, whether or not it addressed the merits of the case. An appeal is also appropriate when the decision involves issues resolved during the discovery phase that are not subject to an interlocutory appeal.

Another important characteristic of appeals is that, in general, they have two effects: devolutive and suspensive. This means that the party returns to the Judiciary all the matters that are part of the appeal for further consideration. It also implies that the effects of the appealed decision are suspended, without producing any legal effect.

So, let's suppose you are litigating a case where the request is for the termination of contractual clauses, and the court has ordered your client to pay a contractual penalty.

Since this matter falls under Civil Law, your case most likely proceeded in one of the Civil Courts of the jurisdiction chosen in the contract. The appeal must be filed with that same court, addressed to the judge of first instance, and not directly to the second instance.

After the appeal is received and reviewed, the case will be sent to the State Court of Justice (or the Court of Justice of the Federal District and Territories , if applicable), where it will proceed from then on. There it will be judged by appellate judges, a term used for judges of the second instance.

The deadline for filing an appeal is 15 business days, starting from the date the decision is served.

2. Interlocutory Appeal

This type of appeal is provided for in articles 1.015 to 1.020 of the CPC/15 . There was a recent discussion as to whether the list in article 1.015 of the Code is exhaustive. In other words, there was doubt as to whether an interlocutory appeal would be admissible in relation to another type of decision not found on that list.

In 2018, however, the Superior Court of Justice decided that the list presented there is of mitigated taxativity. For this reason, the filing of an interlocutory appeal is permitted when urgency is verified due to the futility of judging the issue in the appeal (Topic 988/STJ).

If you represent, for example, a client requesting the provision of medication against the Federal Government, the case must be processed in one of the Federal Courts of the Judicial Section of your State.

Since this concerns medication, a likely request in the initial filing will be for urgent relief (articles 300 to 302 of the CPC/15 ) due to the risk of harm to the party if immediate access to treatment is not granted.

The interlocutory appeal must be filed directly with the second instance court, the Regional Federal Court to which the originating section is linked. In Brazil, there are a total of 6 Regional Federal Courts, each of which may cover more than one state.

It generally has only a devolutive effect. For it to have a suspensive effect, you must request it based on articles 995 and 1.019, I, both of the CPC/15.

The deadline for filing an interlocutory appeal is 15 business days, starting from the date the decision is notified.

3. Internal Appeal

The Internal Appeal is provided for in Article 1.021 of the Brazilian Code of Civil Procedure (CPC/15) . In short, it must be filed against a decision issued by a rapporteur for the respective collegiate body of the Court to which they belong.

In other words, it is a specific appeal process for second-level jurisdiction, where the appealed decision is made by a single judge and will be reviewed by a panel of judges.

It was long known as a Regimental Appeal, because it was provided for in the Internal Regulations of the Courts, but it ended up being incorporated into the legal system with the advancement of procedural legislation.

An important detail to note: unlike other appeals, in an interlocutory appeal petition, all the grounds of the appealed decision must be specifically challenged, as provided for in article 1.021, § 1, of the CPC/15.

The Internal Appeal also only has a devolutive effect. However, just like the Interlocutory Appeal, a stay of execution can be requested.

Let's return to the example of the request for medication against the Federal Government in Federal Court. Upon filing the interlocutory appeal, the federal judge immediately denied the requested urgent relief.

If this is the case, you can file an internal appeal and request that the single-judge decision of the rapporteur be reviewed by the full panel and, ultimately, that the urgent relief be granted.

The deadline for filing an internal appeal is 15 business days, starting from the date the decision is notified.

4. Motion for Clarification

Declaratory appeals are provided for in the CPC/15 ( Brazilian Code of Civil Procedure of 2015) between articles 1022 and 1.026. Regardless of their nature, all judicial decisions are subject to appeal, provided that the specific requirements for this type of appeal are met.

The Code establishes the grounds for filing a Motion for Clarification:

• Clarification of obscurity or elimination of contradiction;
• Suppression of an omission regarding a point or issue on which the judge should have ruled, either on their own initiative or at the request of a party; and
• Correction of a material error.

An interesting effect that can be applied to Declaratory Appeals is the modifying, or infringing, effect. Exceptionally, the judge may modify the decision when ruling on the appeal, to remedy an omission, contradiction, or obscurity.

Another interesting point is the general absence of counter-arguments from the opposing party. In other words, the opposing party will not be heard, unless the court believes that the principles of due process and the right to a full defense are at risk.

One important feature: Declaratory Judgments have the power to interrupt (but not suspend) the counting of the time limit for filing the next applicable appeal.

Let's return to the example of the termination of contractual clauses, when the civil court ordered the party to pay a contractual penalty.

If you identify any of the grounds for filing a Motion for Clarification, you may file it within 5 business days, starting from the date you are notified of the decision. 

Let's assume you filed the Motion for Clarification on the 5th business day and a decision is issued. If you intend to appeal the decision on the Motion for Clarification, you will again have 15 business days to do so, even though you have already used 5 to file the Motion. In other words: your deadline starts counting from zero.

Conclusion

When we litigate before the Judiciary, we make requests and are subject to them being denied for a variety of reasons. It is essential that you have a good grasp of the appeal tools available to you to challenge judicial decisions, should you deem it necessary.

It is also important to note that the types of appeals discussed here are specific to the Common Courts. If you work in the specialized Labor, Electoral, or Military Courts, pay attention to specific deadlines and the distinct characteristics that each appeal may have in those areas of practice.

Want to deepen your understanding of Appeals? Discover the Postgraduate Programs in Civil Procedural Law and LLM in Court Proceedings and Appeals at IDP, and boost your career.

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References:

BRAZIL. Code of Civil Procedure . 2015. Accessed December 12, 2022.

COLOMBO, Juliano; SILVA, Jaqueline Mielke. Manual of Civil Practice : theory and practice. 7th ed. Porto Alegre: Verbo Jurídico, 2016.

DIDIER JR., Fredie; CUNHA, Leonardo Carneiro da. Course on Civil Procedural Law : Means of challenging judicial decisions and proceedings in the courts. v. 3. Salvador: JusPodivm, 2022.

MARINONI, Luiz Guilherme; ARENHART, Sérgio Cruz; MITIDIERO, Daniel. Course on Civil Procedure : Protection of Rights through Common Procedure. v. 2. São Paulo: RT, 2016.