Unlocking Judicial Efficiency: The Case for Reforming Brazil’s Repetitive Special Appeals

Brazil’s “qualified precedents” system was formalised with the introduction of the 2015 Code of Civil Procedure. This development traces its roots back to Law 11,418/2006, which added Article 543-B to the 1973 Code of Civil Procedure. Further specificity regarding special appeals was introduced by Law 11,672/2008, which incorporated Article 543-C into the 1973 Code. This latter article permits the stay of special appeals that are “based on an identical question of law”.

According to Article 121-A of the Superior Court of Justice’s Internal Rules, decisions made in a repetitive special appeal serve as “qualified precedents”, as outlined in Article 927 of the Code of Civil Procedure. One of the primary objectives of such a decision is to foster unity within the judiciary, a key feature of Norberto Bobbio’s classical teachings on legal systems. This unity ensures a fair process, preventing disparate rulings on similar cases.

Another aim of the qualified precedents system is to uphold the principle of effective judicial provision, thereby enabling the court to conduct proceedings both swiftly and fairly. Proper application of the repetitive special appeal mechanism contributes to the reasonable duration of legal proceedings, a cornerstone of effective judicial provision. It is worth noting that incorrect application can lead to delays in decision-making.

When the Superior Court of Justice identifies multiple special appeals based on identical questions of law, it designates the issue for a repetitive appeal trial. As per Article 1,037, Item II, of the Code of Civil Procedure, the Rapporteur for a repetitive special appeal can order a nationwide halt to all cases with the same subject matter.

Article 256-L of the Superior Court of Justice’s Internal Rules governs the procedures for repetitive special appeals, mandating that all such cases be returned to their court of origin to await the outcome of the repetitive special appeal. This procedural rule aims to standardise the application of the law and allows the court of origin to resolve the legal question definitively, eliminating the need for further review by the Superior Court.

However, complications arise when a special appeal involves issues not covered by the repetitive special appeal. In such instances, sending the case back to the court of origin can disadvantage the parties involved. To mitigate the risk of protracted legal proceedings, the Superior Court of Justice should take a proactive approach in addressing issues that are not preliminary questions within the scope of the repetitive special appeal. When a special appeal contains matters that, even if indirectly related to the main subject, are not preliminary questions, it becomes imperative for the Superior Court of Justice to resolve these before sending the case back to its court of origin. By doing so, the court can prevent the unnecessary prolongation of the case timeline. If these ancillary issues are not dealt with in advance, the case will inevitably have to be returned to the Superior Court of Justice for further adjudication once the stay on the repetitive special appeal is lifted.

To illustrate the hypothetical scenario described above, consider a 2018 case where the Superior Court of Justice sent back to the courts of origin a repetitive appeal dealing with compensatory interest in a land reform expropriation case. In such cases, parties often have additional concerns, such as the timeliness of the expert report or the amount of compensation. These issues, while important, are not directly related to the main question of compensatory interest. In light of this, the Superior Court of Justice should, guided by the principle of reasonable duration of proceedings, first rule on the matters that are not preliminary questions before sending the case back to its court of origin. By doing so, the case would remain on hold at the court of origin pending only the conclusion of the trial on the repetitive special appeal. This would eliminate the need for a subsequent referral back to the Superior Court of Justice to address any remaining issues, thereby streamlining the judicial process.

Given the practical significance of this approach, it may warrant an amendment to the Internal Rules of the Superior Court of Justice. Such an amendment could formalise the practice of adjudicating issues that are not directly related to the subject matter of a repetitive special appeal, thereby avoiding unnecessary judicial delays.