Constitutional Amendment 125, promulgated on July 14, 2022 (EC 125/22), introduced a new requirement for admiting the special appeal by the Superior Court of JUstice: demonstration of the relevance of the issues of federal law infraconstitutional discussed in the case.
The institute is similar to the general repercussion, but differs in terms of the demonstration and subjective transcendence of the matter to be assessed: in the Supreme Court, constitutional; in the Superior Court of Justice, federal infraconstitutional law.[1]
In the explanamation of the proposal that resulted in the approval of EC 125/22, its authors affirm that the requirement to demonstrate the general repercussion in the extraordinary appeal allowed a large reduction in the number of appeal that arrived in the Superior Court of Justice, which is why it would be worthy to adopt the same instrument also for the Superior Court of Justice.
Except in cases where relevance is presumed, listed in Paragraph 3 of the Article 105 of the Federal Constitution of 1988, in the event that a matter can be assessed by the Superior Court of Justice, it will have to be of great national interest and transcend the interest of the parties involved in the special appeal. With this, the Court will be able to focus its attention and effort to face issues of great relevance.
The Superior Court of Justice is the court competent to establish the interpretation of federal infraconstitutional legislation and resolve existing case law divergence between courts. Contrary to what happens in a constitutional court, whose action should be on the basis of conflicts involving constitutional issues depending on the order and whose interpretive north serves as a horizon for the construction of norms based on statements introduced by ordinary or complementary legislation, the STJ has the function of interpreting federal infraconstitutional legislation as a whole, regardless of whether this is in the interests of small or large numbers of individuals.
Moreover, in relation to the divergence of case law, the fact that there are distinct positions between two courts justifies the action of the Superior Court of Justice to solve the issue, even if the matter has few interested parties.
In the Superior Court of Justice, there is also a mechanism that allows the trial of topics with a certain detachment from the discussion held by the two parties in the process: the special repetitive appeal. In this type of appeal, when the matter is considered repetitive, the competent chamber will assess the subject in its broadest scope and, at the second moment, the solution will be applied to solve the case that brought the matter to court. That is, it is a real instrument that allows the trial of theses by the Superior Court of Justice.
The procedure for affecting the subject for consideration by the section has the participation of all members of that fractional body, which is inferable that it is not all matters that can be decided according to that system. Only when it is found – from the manifestation of all the ministers who make up the fractional body – that the subject is discussed in many appeals, it will be subject to a broad assessment by the chamber and the decision will have a degree of binding to the classes of the court itself and the lower court bodies.
Therefore, the introduction of a requirement such as the determination of relevance of the matter under discussion in the special appeal as a condition to its knowledge would have the power to modify the essential characteristics of the Superior Court of Justice as a court that primarily interprets federal legislation infraconstitutional and resolves case law divergence between second-degree courts.
Although I believe that the requirement to demonstrate the relevance of the matter alters important characteristics of the Superior Court, since EC 125/22 was promulgated and the filter should be observed for the knowledge of the special appeal, we envision a possibility of overcoming the so-called "defensive case law" in relation to the knowledge of appeals brought on the basis of case law conflict, so that the role of the STJ is again more important.
Among the autonomous hypotheses of special appeal of Article 105, III of the Federal Constitution, point 'c' authorizes its filling when the decision "gives federal law a divergent interpretation of that which has given it another court" (divergence of case law). In that circumstance, the demonstration that the appealed decision interpreted a legal provision in a sense different from that given by another court already authorises the knowledge of the special appeal, and it is for the Superior Court of Justice to decide which interpretation is appropriate – and which should prevail.
However, over the years, a doutrine was formed in the Superior Court of Justice that the knowledge of the special appeal brought based on the existence of case law conflict would be conditional on the evidence of the violation or negative validity of the federal infraconstitutional legislation for the case. In other words, greater importance was given to one of the hypotheses of the special appeal and a requirement for the knowledge of the appeal based on case law divergence was added.
EC 125/22, in this particular, may contribute to the STJ overcoming this misguided interpretative line and resume its role as a court competent to standardize the interpretation of federal legislation infringing, even if it is not facing violation or negative validity.
It is not hard to remember that legal provisions can be interpreted in various ways, provided that there is consistency and respect for the legal system. Moreover, until there is a binding demonstration from a higher court, the authorities may not be able to perform their function in waiting for a position with that characteristic. This leads to decisions in different senses, without violation of the law.
In Paragraph 3 introduced to Article 105 of the Constitution by EC 125/22, its paragraph V states that there will be relevance in the "cases in which the trial under appeal contradicts the dominant case-law of the Superior Court of Justice". It should be noted that this is one of the hypotheses expressed in which there is relevance of the issue dealt with in the special appeal.
Although the precept indicates that the relevance will occur contrary to the case-law of the Superior Court of Justice itself, a systematic interpretation of the hypothesis must be given and the standardfunction of the court, which has been so unprestigious in recent years, should be given a systematic interpretation.
Given the introduction of a new requirement for the knowledge of the special appeal and established some hypotheses in which there is relevance of the issue dealt with, an opportunity arises to overcome the interpretative line mistakenly constructed with the sole purpose of preventing the processing of special resources. There is also the chance to reinforce one of the powers of the Superior Court of Justice, which is to standardize the case law and solve the divergence of interpretation of federal infraconstitutional legislation between courts.
[1] ALVIM, Teresa Arruda; DANTAS, Bruno. Special appeal, extraordinary appeal and the new function of the higher courts. 5th ed. São Paulo: Thomson Reuters Brazil, 2018. p. 320.
