The Second Panel of the Superior Court of Justice (STJ), unanimously, recognized the nullity of a judgment rendered by the Federal Court of the 5th Region (TRF 5). The panel of federal appellate judges of the TRF 5 had held a new trial of the appeal in the same session in which it considered and accepted a motion for clarification to invalidate the previous judgment of the appeal.
According to the STJ justices, this situation violates the right to be heard and the principle of full defense of the parties, since the lawyers were not notified in advance of the new trial nor did they have the opportunity to make oral arguments.
For STJ’s Second Panel, once the first judgment of the appeal was dismissed, after the motion for clarification was granted, TRF5 should have included the appeal again on the agenda for a new trial.
STJ reinforced the need to follow the established legal procedure, which requires the inclusion of the appeal on the agenda at least five business days in advance (articles 934 and 935 of the Brazilian Civil Procedure Code – CPC) and guarantees the right to oral arguments of the parties (article 937, I, of the CPC). The failure to comply with these requirements may result in nullity due to violation of the constitutional right to due process of law (article 5, LV of the Federal Constitution).
The Superior Court also stressed that the principles of procedural agility, procedural economy and primacy of the merits’ judgment cannot be applied without proper consideration. Those principles should not prevail over other constitutional principles of the civil procedure – especially those that aim to ensure the right to be heard and full defense of the parties.
It is also important to mention that the current CPC incorporated the so-called "principle of prohibition of surprise decision" (article 10). This principle prohibits the judge from deciding on any issue without giving the parties the right to express themselves in advance, even if it involves, i.e., a matter of public order.
The decision of the STJ’s Second Panel, rendered in the records of REsp 2.140.962/SE, reiterates the recent understanding of the Court’s First Panel, which also recognized, in the records of AREsp 2.381.097/DF, the impossibility of holding a new appeal trial at the same time as the motion for clarification.
The decisions mentioned do not have binding effect, but they indicate an important trend of precedent consolidation on this matter in the STJ.
The guidance established by the Superior Court is very important for litigation performance, as it ensures the principle of full defense and the right to be heard in the second instance, which guarantees the performance of oral arguments. As a private act of lawyers, oral arguments are essential for the parties’ defense at this stage of the process – which is the last opportunity to discuss the facts and relevant evidence to the dispute resolution.
