Faced with tens of thousands of cases pending in the Brazilian judiciary, of which 263.407 are under review by the Superior Court of Justice (STJ), in an attempt to transform it into a third instance, the court has been using defensive jurisprudence.
This translates into limiting the analysis of matters of public order, as well as preventing the re-examination of evidence, in order to maintain its status as a federal court of uniformity.
Currently, in addition to this, it is undeniable that the law is undergoing over-specialization, such that many lawyers, firms, and public bodies vertically concentrate their work in the higher courts and, in many cases, encounter processes riddled with procedural and substantive flaws.
Thus, the principles of procedural transferability and the re-evaluation of evidence have become essential for the effectiveness of judicial services.
This article will analyze the constitutional function of the Superior Court of Justice, as well as the material binding nature of the special appeal, and, in the course of its development, will address the devolutive effect of factual matters and the hypotheses of application of summary judgment 7.
Furthermore, the incidence of the devolutive and translative effect, doctrinal and jurisprudential positions and divergences, and finally, the current position of the STJ concerning matters of public order.
Therefore, given the enormous divergence on the subject, this article aims to demonstrate that the re-examination of evidence is not the same as revaluation, a situation in which the Superior Court of Justice (STJ) may give a new legal interpretation to the facts, as well as the possibility of the Court reviewing matters of public order ex officio.
Constitutional function of the Superior Court of Justice as a court of uniformity.
The unifying function is closely related to the right to and guarantee of the principle of equality and legality, given that the crucial element is the uniformity and application of rules and principles throughout the national legal system.
Thus, the special appeal is based on the hypotheses of article 105, III, "a" "b" "c" of the Federal Constitution, which make it very clear that the main value protected is the equality of the application of federal legislation, both by contrary interpretation and by jurisprudential dissent or local law in relation to federal legislation.
In other words, the subjective interests of the parties are relegated to a secondary position, so that any favorable decision will only be a collateral consequence of the objective violation of federal law according to the linked constitutional hypotheses.
Nevertheless, the new Code of Civil Procedure ratified and expanded the importance of the Superior Court of Justice (STJ) as a court of uniformity through the institutes of the Repetitive Special Appeal and the Incident of Assumption of Jurisdiction, with normative provision , respectively, in articles 947 and 1.036 of the CPC.
Thus, it is observed that the legislator increasingly seeks to reinforce that the function of the court should not serve as a reviewing body , but should only protect the law in an objective manner.
In other words, to avoid violating federal law in accordance with the interpretation made by the jurisprudence of the Superior Court of Justice (STJ) in conjunction with doctrinal understanding.
However, even if the assessment of the facts and evidence of the specific case is avoided, given the natural exercise of normative subsumption in conjunction with the application of the principle of devolutivity, albeit limited, there are cases in which the Court must give a new legal meaning to the uncontested fact under appeal and assess matters of public order ex officio, under penalty of indirectly violating precisely the federal legislation that it seeks to protect and standardize.
In-depth devolutive effect and possibility of re-evaluating the evidence regarding the uncontested facts contained in the appealed judgment.
There are two aspects to analyzing a matter of law: the ontological and the problematic focus . The first would be a purely legal question, in such a way that there would be no discussion whatsoever about the facts, with the judge's attention being focused on the rules of law.
The most illustrative example is the case of a decision establishing paternity, where the controversy lies in determining the time frame for alimony: whether it should be from the date of service of process or from the date of the judgment.
Furthermore, a very contemporary example that is currently the subject of controversy in the courts and in the Superior Court of Justice (STJ) itself is: the equitable reduction of success fees when the amount is not negligible or inestimable, such as when the enforcement proceedings are terminated due to the statute of limitations.
In other words, the example above does not even mention any factual context of evidence and parties, only a purely abstract analysis of the rule, so that such a scenario is equivalent to a purely legal matter.
Now, if there are doubts about how the facts occurred, requiring a thorough re-analysis of the process, evidence, and procedural documents, then there would be a question of fact and, consequently, the impossibility of assessment by the court, which is not intended to act as a court of cassation.
On the other hand, the jurisprudence is settled in the Superior Court of Justice (STJ) regarding the possibility of re-evaluating the body of evidence in the case file when there is no doubt about the events of the facts, so that the Court can confer a new legal interpretation.
It is important to mention that, in this aspect, there is a certain similarity with the purely ontological question of law, because in the revaluation there is no obedience to a norm that determines the value that the evidence may have in the specific case.
That is, there is no re-examination of the facts, for example: how, who, when and where did they occur? But only of the normative subsumption to which the judgment was based. On the other hand, it should be emphasized that the re-examination of the evidence occurs through a meticulous, detailed examination and individual reassessment of the evidence contained in the records.
Thus, another element extracted from the most recent rulings of the Superior Court of Justice (STJ) is that a given factual situation must be well delineated in the challenged judgment and, as mentioned above, be an uncontested fact. For this to occur, it is essential that the facts and evidence have been previously raised and, consequently, in light of the principle of devolutivity, be assessed by the court.
Regarding the pre-trial questioning, it can be said that it concerns the effective assessment by the local court of the federal issue that is intended to be discussed in the special appeal.
Professor Teresa Arruda Alvim argues that the principle of devolutivity – applicable to all appeals – means that with the filing of an appeal, the responsible body is given partial or complete knowledge of the matter, thus there are two forms of scope: breadth and depth.
The extensive effect relates to what the losing party delimits in the subject matter of their appeal, which may be total or partial, while the depth effect relates narrowly to the possibility of considering matters that are connected to the grounds of the claim or the defense, or matters that can be considered ex officio.
In this respect, it is observed that the revaluation of evidence is intrinsically linked to the extensive effect of what is stated in the judgment, and the evidentiary revaluation cannot exceed the limits of the delimited factual matter, under penalty of application of Precedent 7.
With these points clarified, we will now examine excerpts from case law decisions where the application of the aforementioned legal principles can be observed.
Therefore, it is possible to conclude that the crucial point for re-evaluating evidence and setting aside Precedent 7 occurs when the matter is duly raised in the judgment and the factual and evidentiary elements are uncontroversial and properly outlined in the decision.
In this way, the Court does not need to reassess whether the facts occurred in this or that manner, but only analyzes whether the legal framework given to the specific case is consistent with the legislation and jurisprudential understanding of the Court itself, thus maintaining its function in preserving federal legislation and the principles of equality and equal treatment.
Translative effect in special appeals and the ex officio cognizability of matters of public order.
The principle of procedural translativity can be defined as the effect underlying the inquisitorial principle, consisting of the possibility for the appellate court to issue a ruling on matters of public order independently of the parties' request.
The issue of whether matters of public order can be considered ex officio gives rise to doctrinal and jurisprudential divergences within the Superior Court of Justice (STJ) itself, such that there are currently two positions concerning the possibility of assessing matters of public order.
The first point is that there needs to be an express prior questioning of the subject matter of the judgment and of matters of public order in order for it to be possible to assess them, otherwise there would be a kind of procedural lottery in which the appellant could intentionally raise matters of public order at the end in order to benefit themselves.
Along these lines, Ruy Rosado de Aguiar, former Minister of the Superior Court of Justice (STJ), defends this position by stating that:
“(...) the issue of public order, by itself, does not dispense with the requirement of prior questioning. This would mean substantially altering the appeals system designed by the constitution, transforming the STJ into an ordinary review court.”
Ruy Rosado de Aguiar, former Minister of the Superior Court of Justice (STJ).
A considerable portion of the STJ's jurisprudence seems to be following this same line of reasoning, since in several recent judgments the court has been applying Summary 211/STJ to the case, meaning that the requirement of prior questioning is demanded even in relation to matters of public order.
The second position, defended by some legal scholars, such as Teresa Arruda Alvim, Bruno Dantas, and Nelson Nery Junior, and also by this article, is that matters of public order may be considered even if not previously raised, provided that the appeal is admitted based on one of the binding matters , because matters of public order, by their very nature, would already be considered previously raised.
In the same vein, Teresa Arruda Alvim states that after the appeal is admitted, a matter of public order, even if not previously raised, could be assessed through a devolutive effect in the vertical dimension, not necessarily through a translative effect.
Furthermore, the legislation itself, through article 1.034 of the Code of Civil Procedure , in accordance with summary 456 of the STF (Supreme Federal Court), provides that, once the extraordinary appeal is admitted, the Superior Court may consider any issues involving the challenged chapter, reinforcing, in this aspect, the devolutive effect in the vertical dimension mentioned by Professor Teresa Arruda Alvim.
Thus, this understanding is still part of the court's jurisprudential position (now a minority view, given the prevalence of the former) which argues that it is possible to analyze a matter of public order regardless of prior questioning and even if not alleged by the parties, as long as the special instance has been opened by the acceptance of the appeal.
Furthermore, it seems that the current prevailing understanding of the Superior Court of Justice (STJ) is a defensive jurisprudence aimed at limiting the tens of thousands of cases that reach it , although this position, with all due respect, in my view, goes against the very constitutional function of the Court to standardize and apply the law equally.
That is to say, by refusing to consider a matter of public order that was not previously raised, despite the appeal being accepted for various reasons, the federal law is indirectly not applied, resulting in legal uncertainty, since it will force the litigant to file a rescissory action and bear new procedural costs that are even more onerous in the rescinding court.
Nevertheless, it is possible to observe a violation of the principle of procedural economy, access to justice, and an effective decision on the merits, since there can be no talk of jurisdictional effectiveness regarding a decision that denies consideration of the merits of a matter of public order under the pretext that the translative effect is not applicable to extraordinary appeals.
This raises an interesting question: could evidence obtained through irresistible physical coercion, resulting in a confession of debt – proven in the case file – and alleged only in the appeal, be disregarded on the grounds of lack of prior questioning?
Or even a debt stemming from a contract that expired more than 20 years ago – which, due to a possible failure in the defense, was not alleged – being disregarded by the Superior Court of Justice (STJ), even if the appeal was accepted for other reasons?
Could one assert that in such hypothetical cases the Court fulfilled its constitutional role in applying federal law? The answers, as explained above, are far from reaching a consensus. However, the conclusion of this article aligns with that of some specialized legal scholars.
In other words, once the special appeal has been admitted, it is possible to analyze matters of public order even if they have not been previously raised, given the in-depth translative and devolutive effect, in accordance with Article 1.034 of the Code of Civil Procedure, which is consistent with Supreme Court Precedent 456.
Conclusion
Despite the tens of thousands of appeals pending before the Superior Court of Justice (STJ), which struggles to cope with the excessive number of cases, it is agreed that its constitutional function cannot be distorted, and the court should only limit itself to analyzing objective violations of federal law.
Thus, as a side effect of excessive litigation, in many cases those subject to the law become victims of these vicissitudes, whether related to the poor quality of judicial decisions in lower courts or to defects on the part of the defense, so that the revaluation of evidence and the effect of the translativity of appeals have become essential institutions for the effectiveness of the provision of justice.
Therefore, it can be concluded that both in the re-evaluation of uncontested facts and evidence present in the judgment, and in the consideration of matters of public order without prior questioning in the special appeal, there is no question of distorting the constitutional function of the Court, but rather the opposite: the objective application of federal law and the uniformity of the application of the law, and, consequently, the institutional strengthening of the judiciary and greater legal certainty.
References
ALVIM, Angélica Arruda. Constitutional Principles of the Process. São Paulo Journal of Procedure No. 74. April/June/1994.
ALVIM, Eduardo Arruda. General Theory of Procedure, Revista dos Tribunais, 2010.
ALVIM, Teresa Arruda and Dan Bruno – Special Appeals and Extraordinary Appeals and the New Role of Superior Courts in Brazilian Law , 6th edition, Revista dos Tribunais, 2020.
AGUIAR JÚNIO, Ruy Rosado. Special appeal: A matter of public order. Pre-trial questioning . Revista de Processo, no. 132. São Paulo: RT, Feb 2006.
CARVALHO, Patrícia Torres Barreto Costa. Translative effect in extraordinary appeals . Revista de processo, n.171, São Paulo, RT, May 2009.
CANOTILHO, José Joaquim Gomes. Constitutional Law and Theory of the Constitution . 4th ed. 2003. Coimbra
GUIMARÃES, Rafael. Special and Extraordinary Appeal: Drafting and Judging Techniques. Ed. RT. 2020.
MOREIRA, Barbosa, Comments on the Code of Civil Procedure, 2013 edition, v.5.
NERY JUNIOR, Nelson. General Theory of Appeals. 7th ed. São Paulo: RT, 2014.
PAIXAO, Manuel Júnior. General Theory of Procedure . Ed. Del Rey: 2002
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Author: Rafael Nogueira Fernandes
Lawyer registered with the OAB/MS (Brazilian Bar Association of Mato Grosso do Sul) under number 21.503, graduated from the University for the Development of the State and Region of Pantanal (UNIDERP) in 2016, Postgraduate in Agribusiness Law and currently pursuing a Postgraduate degree in Civil Procedural Law from IDP Online , class of 2020/2021. Practicing in civil and business litigation.
This article was published through the IDP Student Editorial Project.