Background
The court of origin denied further processing of a special appeal because the challenged judgment conformed to the Superior Court of Justice’s position under the repetitive-appeal procedure. The appellant sought review by filing an appeal under Article 1,042 of Brazil’s 2015 Code of Civil Procedure. The presidency of the Superior Court of Justice declined to hear that appeal because it was not the proper remedy against a refusal based on repetitive precedent.
In an internal appeal from that ruling, the appellant argued that refusing review imposed excessive formalism at the expense of access to justice and the principle that procedural acts should be judged by their function. It maintained that the filing was timely, correctly addressed, and fully explained why STJ Theme 975 allegedly did not govern the case, so the mistake was merely formal and caused no prejudice. No response to the internal appeal was filed.
The Court’s Holding
The First Panel unanimously denied the internal appeal. It held that Article 1,030, § 2, of the 2015 Code expressly makes an internal appeal the proper remedy when the president or vice president of the originating court refuses to process a special appeal because the underlying judgment accords with precedent established through the repetitive-appeal procedure.
Because the statute expressly identifies the proper remedy, the court found no objective uncertainty that could justify treating the Article 1,042 appeal as an internal appeal. Filing the wrong appeal therefore constituted a gross error, making both appellate fungibility and the principle of procedural instrumentality unavailable. The panel accordingly left intact the decision declining to hear the appeal in the special appeal.
Key Takeaways
- An internal appeal is the required remedy under Article 1,030, § 2, when a special appeal is denied processing on the ground that the judgment follows binding repetitive precedent.
- An Article 1,042 appeal cannot substitute for that internal appeal because the Code leaves no objective doubt about the correct procedural route.
- Timeliness, correct addressing, complete argument, and lack of prejudice do not cure this category of gross procedural error through fungibility or procedural instrumentality.
Why It Matters
The decision underscores that Brazilian appellate counsel must match the chosen remedy to the specific statutory basis for the lower court’s admissibility ruling. When processing is denied because the judgment conforms to repetitive precedent, an incorrectly labeled or procedurally distinct appeal may be rejected without consideration of the underlying challenge.
The ruling also confirms the Superior Court of Justice’s strict approach to appellate fungibility: functional similarity and absence of prejudice cannot overcome an express statutory designation of the proper appeal.