Brazilian Legal Appeals: Process and Requirements

Posted on Nov 28, 2024 in Law & Jurisprudence

Taking the Case to the Secretary

The day of the trial is marked. There are generally three judges.

  • Any judge may examine records if unqualified to vote.
  • If no request is made, the trial continues, decided by majority vote.
  • A written record (Lavratura) contains the preliminary questions.

Preliminary Questions

Court admissibility, decay, and prescription should be submitted to the judges before the vote. The reporter may reject the appeal upon receipt if it is inadmissible, rejected, harmful, or clashes with legal precedent or court rulings (Superior Court, Supreme Court, or STJ).

  • The appeal may be allowed if the contested decision strongly contrasts with precedent or case law.
  • Against individual (monocratic) decisions, a grievance can be filed within five days to the competent body.
  • This is called Nameless Aggravation or Agravinho.

1. Appeal Concepts

  • Appeals challenge interlocutory decisions (those with decision-making content not covered by CPC arts. 267 and 269 – extinction of the process with or without merit resolution).
  • Appeals are against judgments of first instance or higher.
  • Example: Rapporteur’s decision to deny action as inadmissible.
  • Appeals are also against denial of processing RESP RE.
  • Besides CPC, a bill of review is appropriate in exceptional circumstances (e.g., against bankruptcy declarations or criminal enforcement judgments).

2. Appeal Methods

  • a) Retention
  • b) Instrument
  • c) Regimental (no specific denomination; set by court regiments)
  • Agravinho: challenges individual rapporteur decisions.

3. Cabimento (Admissibility)

CPC, art. 522: against interlocutory decisions wrongly retained (in general). Interlocutory decisions fit grievance within ten (10) days in the hold, except if a decision is likely to cause serious harm or is difficult to repair, in cases of appeal declared inadmissible, and on the effects which the appeal is received, when it will leave to appeal by instrument.

  • AI (Instrument Appeal) is exceptional: when the decision can cause serious injury, in cases of inadmissible appeals, or when the retained injury is impossible to review later.
  • AI is appropriate for urgent solutions or when the decision affects appeal purposes (suspension, etc.).
  • If an AI is filed incorrectly, the rapporteur converts it to retained and transmits it to the judge (CPC, art. 527, II).
  • The rapporteur’s conversion decision can be appealed but is usually reformed only during the offense trial, unless the rapporteur reconsiders.

4. Requirements

Generic admissibility: appellate chance (CPC, art. 522). The offense is held independent of preparation. Preparo (preparation) is only for the Bill of Review. Retention doesn’t require it. The deadline is ten days for retention and instrument, unless the decision is in open court (then it’s immediate and oral; see art. 523 § 3). For retained aggravation, the court must be informed at the appeal trial. The court won’t consider the offense if not explicitly requested. If the injury is brought and the victim heard within 10 days, the court may reform its decision. For interlocutory judgments rendered in the hearing and trial incorrectly, it will be retained, brought immediately, orally, and in its term (Article 457), briefly stating the reasons for the regimental agravante. The deadline is five days.

5. Further Held

5.1 Definition

  • Interlocutory appeal against first instance decision, assessed during the action trial.
  • Brought in its own file, entrenched and processing.
  • Waits for case referral to a higher court during the appeal trial.

During proceedings, judges make many interlocutory decisions. If not appealed, they become mandatory, preventing re-discussion except for public policy matters. Parties must bring injury to avoid this. Except for CPC, art. 522 exceptions, the offense is retained and examined only during an appeal trial. The concerned party must repeat the request with reasons or counter-arguments.

5.2 Processing

  • Takes place in the same case; no transfer or instrument formation.
  • Submission deadline: ten days from summons.
  • Written request with reasons (except at hearings).
  • No preparation recollection.
  • Quote from worse: ten days for counter-draft.
  • The judge may withdraw their decision. If so, the aggrieved party can bring new injury (withheld or instrument). The judge may dismiss the resource processing. Rejection of grievance is open to appeal or bill of review.
  • Retained injury is assessed only if explicitly requested (523, § 1).
  • Repeating the application is deemed tacit abandonment of the appeal.
  • The wrongly retained will be considered before the appeal.

6. Bill of Review

6.1 Definition

  • Directed to a body other than the one that made the decision.
  • Instrument formation: contains necessary parts for higher court review.
  • Brought directly to the competent authority (requires preparation).
  • Alternatives: Review in the Post Office with Notice of Receipt (AR) – art. 525, § 2; Intervention by fax (original in 5 days – Law 9800/99); Electronic transmission (Law 11.419/06 – art. 10).
  • Instrument without compulsory pieces: resource not known.
  • Compulsory pieces (art. 525, I): Copy of the aggravated decision; Photocopy of summons certificate; Photocopy of attorney granted to aggravating and aggravated parties.
  • Optional parts (art. 525, II): Photocopies to understand the aggravating (e.g., application copies).

Copies need not be authenticated if already in the original file. The party must verify authenticity. The aggravating party must present proof of payment and return size, if any. Court Case: the appeal (in one of the provided forms). After the action: the aggravating factor in three days will require joining the AI application copy and proof of remedies (list of documents accompanying the appeal – art. 526). Finalidade: allows the court of origin to exercise its withdrawal right. This is indispensable for Complaint knowledge. Ignorance is conditional on the omission of aggravating being tried and proven by the other party. The Court cannot do it in office. Resource distribution to the Rapporteur, who may: a) deny the Bill (follow art. 557 cases) – Unnamed Aggravation (Regimental) against this decision, sent to trial for the Class. The court may withdraw or Federal judges may assess.

http://www.planalto.gov.br/ccivil_03/leis/L5869.htm