The Superior Court of Justice (STJ) concluded the judgment of special appeal 2.109.209/CE, under the rapporteurship of Minister Nancy Andrighi, and defined that the requirement of prior deposit of the fine provided for in article 1.021, paragraph 5,[1] of the Civil Procedure Code (CPC), cannot preclude the processing of appeals that aim to reverse a different original decision, issued at another procedural moment.
In this case, the Court of Appeals of the State of Ceará did not hear the appeal, because the deposit of the fine imposed in the judgment of an appeal resulting from a preliminary injunction would preclude the processing of any other appeal handled by the penalized party, even if it was filed against the judgment.
By adapting the interpretation of paragraph 5 of article 1,021 of the CPC, the Third Panel of the STJ changed the understanding of the original Court of Ceará. In doing so, it reaffirmed that the prior deposit of the fine does not prevent the knowledge of supervisory appeals that do not intend to rediscuss the matter already examined, in relation to which the abuse of the right to appeal was recognized.
Following the position of the Federal Supreme Court (STF),[2] the STJ recognized that the fine provided for in paragraph 4[3] of article 1,021 of the CPC is aimed at preventing "abuses and deviations of an ethical-legal nature". However, this cannot violate the right of access to justice.
The sanction is not automatic and is applied only in cases of manifest inadmissibility or manifest inadmissibility of the appeal. It is a measure aimed at preventing abusive procedural conduct that improperly uses procedural instruments without a valid legal basis.
However, the payment of the amount of the fine imposed for abuse of the right to appeal on a particular matter does not preclude any and all appeals filed on the record, particularly those directed at other matters and/or decisions.
This is a logic that follows naturally from the Brazilian principles of access to justice, full defense, and dual jurisdiction. Thus the decision of the STJ was correct in not allowing the imposition of the original court to hear an appeal filed at a different procedural moment.
The requirement of prior deposit of the amount of the fine is also not allowed in the case of an appeal that is limited to the challenge of the fine imposed on the basis of article 1,021, paragraph 4, of the CPC.
The same Panel of the STJ, headed by Minister Moura Ribeiro,[4] emphasized that "the fine imposed as a condition for the admissibility of new appeals only prevents the knowledge of supervisory resignations aimed at discussing a matter that has already been considered and in relation to which the existence of an abuse of the right to appeal has been recognized".
The STJ concluded that the challenge to the fine itself is an entirely new matter. Accordingly, the pendency of the payment of the fine does not preclude the processing and adjudication of an appeal seeking to set aside the fine itself.
The STJ's position, therefore, reinforces the Brazilian constitutional postulates of access to justice, full defense and dual jurisdiction, by rejecting the requirement of prior payment of the fine as a condition for the admissibility of appeals that are dissociated from the decision of the penalty and/or limited to annulment of its own imposition.
[1] "Paragraph 5 - The filing of any other appeal is subject to the prior deposit of the amount of the fine provided for in paragraph 4, with the exception of the Public Treasury and the beneficiary of the gratuity of justice, who will make the payment at the end."
[2] Special appeal according to specific court regulations 951.191-AgR, Rapporteur Minister Marco Aurélio, 1st Panel, judgment published on June 23, 2016; and 955.842-AgR, Rapporteur Minister Dias Toffoli, 2nd Panel, judgment published on June 28, 2016.
[3] "Paragraph 4 - If the interlocutory appeal is declared manifestly inadmissible or unfounded in a unanimous vote, the Collegial Body shall, in a reasoned decision, condemn the offending party to pay a fine of between one and five percent of the current value of the case."
[4] Motion for clarification in the Special appeal according to specific court regulations 966430/SP, 3rd Panel STJ, Rapporteur Minister Moura Ribeiro, judged on September 21, 2020.
