Appeals to Superior Courts

Appeals to Superior Courts

The Judge, in exercising his role of enforcer of the law, in a certain way, creates the right, and not only reproduces it (as was the earliest and retrograde view of his role). The function of the Judge goes beyond, “inventing” the right, within pre-defined parameters, obviously, and not at his pleasure.

The Judge, when fulfilling this function of creator of the right, makes it based on the interpretation of the law, application of principles, verification of the jurisprudence and doctrine. In this way, it transforms the text of the law (or normative statement) into a norm, which is the primary concept of legal interpretation.

Because of the supposed flexibility of the judges, the function of the High Courts would be to unify and stabilize the jurisprudence in order to guide the entire judiciary about what would be the most correct form of application of the normative statement. It occurs that, for various reasons, among them the main one that is the excess of work, the Ministers of the Superior Courts has not been able to reach its greater objective, that is to unify the jurisprudence.

Often, due to vanity, disorganization and workload, there is, especially in the STJ, divergence of understandings within the Courts, Chambers and even offices. In order to reduce the workload, the admissibility examination of the Extraordinary Appeal included the need for a general repercussion of the matter, which meant that there were 64% fewer cases that came to the Supreme Court. Again, because of defensive jurisprudence, the application of this device has not been correctly used by Ministers, who understand the general repercussion not as being relevant to the case, but rather towards their numerical scope (which was not the intention of the legislator).

In order to try to stop this defensive jurisprudence, the new CPC (although already a constitutional principle), made it a matter of determining in its wording that it is the function of the High Courts to guide and create uniform and stable jurisprudence, respecting legal certainty. This would not prevent a change in the understanding of a particular matter, but only that it be done only when necessary, and citing the previous one, with the explanation of why the Court’s change of understanding.

As for the other requirement for admissibility of appeals to the High Courts, it is important to emphasize the need to appeal exclusively to matters of law (and not in fact). That is, that the object is the application of the NORMA. There are cases that are clear divisions of matters of law and fact, but in others, the materials can be confused, or be very close to each other.

To assist in this verification, it is suggested to ask a question: where is the problem (or, what is the discussion)? If the answer is “such or such thing happened,” it would be a matter of fact, if the answer is “which law / article should be applied in such a case”, it would be a matter of law. Moreover, when it is necessary for the correct application of the norm in a concrete situation, the examination of certain facts, and the judgment to be appealed does not specifically address this situation, pre-questioning liens can serve as a tool to remedy this problem. In these cases, the High Courts may apply the law under the correct perspective, even if it is a matter of fact.

That is, this type of embargo does not only serve to cite or mention the articles of law allegedly infringed and not dealt with in the judgment. In the present case, if the appeal is known, the matters alleged in the embargoes will form an integral part of the judgment under appeal, and the High Courts may use them to render their decision. In the new CPC it is anticipated that the courts will have to decide in a dense and well-founded manner, presenting EVERY motive that led them to decide in such a way, and include the reasons that did not lead them to decide otherwise. With the application of this device, certainly the quality of resources (and their consequent decisions) will be greater and more just.

Lawyer Paula Feliz Thoms

Master of Laws