What is the special feature??

Constitutional Amendment No. 125 of 2022 added paragraphs 2 and 3 to Article 105 of the Federal Constitution, which introduced a new requirement for the admissibility of Special Appeals: relevance.

However, before delving specifically into the new development, we need to clarify, or recall, what a Special Appeal is, its function, its applicability, and its admissibility requirements.

The name itself reveals the legal nature of the Special Appeal: it is an appeal, however, it is not an ordinary appeal, but rather an extraordinary appeal.

This implies that, through the Special Appeal, there will be no re-analysis of facts and evidence, but only a focus on the standardization and correct application of infra-constitutional law in the interest of legal certainty. This is also reflected in Precedent 7 of the STJ (Superior Court of Justice).

Due to the legal nature of the special appeal, its function is to maintain the uniform application of infra-constitutional law, as well as, from the perspective of the precedent system, to preserve the application of infra-constitutional law in accordance with the understandings of the Superior Court of Justice (STJ).

Similarly, the grounds for filing a Special Appeal are set forth in Article 105, III of the Federal Constitution . According to this provision, a Special Appeal is admissible against a court decision, whether sole or final, that violates a treaty or federal law, or that interprets federal law differently from another court.

Finally, regarding the admissibility requirements , these are scattered throughout the law and in the case law consolidated by the Superior Court of Justice (STJ). They are: exhaustion of all appeal avenues (article 105, III of the Code of Civil Procedure), pre-questioning of the matters (interpretation of article 105, III of the Code of Civil Procedure), debate limited to legal issues (statements 5 and 7 of the STJ's Summary) and now, with Constitutional Amendment No. 125 of 2022, relevance.

The origin of the question of the relevance of Constitutional Amendment Proposal 209/2012

Relevance is not something new in the system of extraordinary appeals; the Extraordinary Appeal itself already required the demonstration of general repercussion, according to article 102, §2 of the Federal Constitution , which is similar to the issue of relevance in article 105, §2 of the Federal Constitution.

Furthermore, such devices are in line with the defensive jurisprudence of both the Superior Court of Justice and the Supreme Federal Court, which aims to relieve the burden on these Courts through a more rigorous filtering of the referral of new appeals for analysis by the Superior Courts.

In fact, it is within this context of filtering processes that Constitutional Amendment 125 of 2022 was born, initially as a Proposed Amendment to the Constitution (PEC) 209/2012. In her justification for the PEC, then-Deputy Rose de Freitas makes direct mention of the overburdening of the Judiciary, in her words:

However, the exercise of this power gives rise to congestion problems similar to those that led to the introduction of the requirement of general repercussion for admissibility in the context of extraordinary appeals (jurisdiction of the Supreme Federal Court).

Furthermore, this passage is interesting because it reveals the similarity between the general repercussion of the Extraordinary Appeal and the relevance added by Constitutional Amendment 125/2022, which has already been mentioned above.

Thus, the purpose of relevance is to filter Special Appeals and, consequently, reduce the volume of appeals sent to the Superior Court of Justice (STJ), which will naturally improve the provision of justice by the Superior Courts.

Beyond defensive jurisprudence and easing the burden on the Superior Court of Justice (STJ), it is important to highlight the consequent improvement in the delivery of justice with the filtering applied by the relevance criterion, as this is in line with the system of precedents.

If the precedent system relies on case law, then the production of better individual decisions by the Superior Court of Justice (STJ) will naturally create more refined paradigms and, naturally, contribute to legal certainty.

How is relevance analyzed in Special Appeals?

By adding the relevance requirement, Constitutional Amendment 125/2022 also determined how this requirement would be analyzed, and described the circumstances under which relevance is presumed to exist, without the need for prior analysis.

Regarding the method of analyzing the existence of relevance, Article 105, §2 of the Federal Constitution is similar to what is already established for the issue of general repercussion in the Extraordinary Appeal. This will be evaluated by the judging panel, which may only reject the appeal for lack of relevance if 2/3 of the Ministers so decide.

Just as with general repercussion, relevance can be demonstrated in various ways, whether through the pioneering nature of the issue, the scope of the matter and, consequently, the impact on numerous future and ongoing cases, the social relevance of the matter, or its legal importance.

Paragraph 3 of Article 105 sets out the circumstances in which relevance is presumed to exist independently of analysis by the judging panel. These cases are listed in the provision: criminal actions, administrative misconduct cases, actions whose value exceeds 500 minimum wages, actions that may generate ineligibility, and actions in which the decision is contrary to the prevailing understanding of the Superior Court of Justice (STJ).

Of these hypotheses, it is important to highlight both the last one and the first two. By recognizing the relevance of the matter when the decision directly offends the prevailing understanding of the Superior Court of Justice (STJ), there is a clear emphasis on precedents. This increasingly points the way towards creating more solid paradigms that prioritize legal certainty.

The issue of considering the existence of relevance of actions with a criminal nature as presupposed follows the constitutionalization of civil procedure , a trend that has already been discussed here on the blog, and I recommend reading the article " Brazilian Civil Procedure in the Context of the 1988 Constitution " written by Daniel Albuquerque de Abreu.

How is the relevance criterion being applied? 

With the publication of Constitutional Amendment 125/2022, there have naturally been several debates regarding the effectiveness of the aforementioned constitutional amendment. These debates are of paramount importance, as they determine how and when the relevance criterion will be applied.

Some understood it to be a fully effective norm and, therefore, could be applied immediately. Others argued that it was a norm of contained effectiveness , meaning the norm is already applicable, but the scope of its application could be limited by future regulations. Finally, there were those who argued that it was a norm of limited effectiveness and, thus, would not be applicable immediately until future regulation.

In light of these discussions, the Superior Court of Justice (STJ) felt it necessary to issue a statement regarding this debate. Thus, through Administrative Ruling No. 8 , the STJ determined that Constitutional Amendment 125/2022 is, in its view, a norm of limited effectiveness and, therefore, is not applicable until it is regulated by future legislation.

In practice, this means that, currently, while there is no regulation, it is not necessary to demonstrate relevance for the special appeal to be heard, but it should be noted that the Superior Court of Justice (STJ) has already forwarded a suggestion to the Senate for the regulation of Constitutional Amendment 125/2022. Therefore, such regulation is closer than expected.

With such regulation imminent, we must pay close attention to legislative changes. And the simplest and easiest way to stay informed is to enroll in IDP's postgraduate programs, where you will have access to numerous outstanding professionals who provide up-to-date information on the subject. One example is the postgraduate program in Civil Procedural Law . Take a look!

Therefore, in addition to paying attention to the regulations regarding the relevance requirement for Special Appeals, study with the best and don't be caught off guard when preparing your future appeal.

References

Manual of Civil Procedural Law – Single Volume , NEVES, Daniel, – 15th Edition – São Paulo: Juspodvm 2020.

Course on Constitutional Law , MENDES, Gilmar – 15th ed. – São Paulo: Saraiva Educação 2020.