An unfavorable decision at the appellate level often raises the question: is there still something that can be done? In many cases, yes — through the appeals directed to Brazil's superior courts. This guide explains, in accessible language, what the extraordinary appeal (recurso extraordinário) and the special appeal (recurso especial) are, their requirements, and how this stage of the case usually works.
The role of Brazil's superior courts
The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) have the constitutional role of unifying the interpretation of the law throughout the country — the former, on constitutional questions; the latter, on the interpretation of infra-constitutional federal law. This means that, as a rule, these courts do not re-examine facts and evidence already discussed in the earlier instances: they analyze legal theories.
Extraordinary appeal: when it applies
The extraordinary appeal is directed to the STF and is available when the decision under appeal contravenes a provision of the Federal Constitution, declares a treaty or federal law unconstitutional, upholds the validity of a local law or government act challenged against the Constitution, or upholds the validity of a local law challenged against a federal law.
Beyond the specific requirements, it is necessary to demonstrate the general repercussion of the constitutional question discussed — that is, that it goes beyond the subjective interest of the parties, carrying economic, political, social or legal relevance to the case.
Special appeal: when it applies
The special appeal is directed to the STJ and is available, among other grounds, when the decision under appeal contravenes a treaty or federal law, upholds the validity of a local government act challenged against a federal law, or interprets federal law in a manner that diverges from the interpretation given to it by another court.
Unlike the extraordinary appeal, the special appeal does not require a showing of general repercussion, but it does typically require what is known as prequestionamento — that is, that the federal question discussed must have already been actually debated and decided in the earlier instances.
Difference between the two appeals
- Extraordinary appeal (STF): discusses constitutional questions, requires a showing of general repercussion;
- Special appeal (STJ): discusses the interpretation of infra-constitutional federal law, requires prequestionamento of the matter;
- In certain cases, it is possible to file both appeals simultaneously, when the case involves both constitutional and infra-constitutional questions.
The specific procedural requirements may vary according to legislative changes and each court's case law. [CASE LAW TO BE CONFIRMED]
Deadlines and procedure
As a rule, the deadline to file these appeals is 15 business days, counted from publication of the decision under appeal. The appeal is initially presented to the court of origin (a State Court of Appeals or a Federal Regional Court, for example), which conducts a preliminary admissibility review before forwarding the case to the competent superior court.
What to do if the appeal is not admitted at the court of origin
When the court of origin denies the extraordinary or special appeal, it is possible to file an interlocutory appeal (agravo) so that admissibility is reconsidered directly by the competent superior court. This is an important technical step, requiring close attention to the specific grounds for the denial.
The importance of appellate strategy
Building an appeal to Brazil's superior courts requires planning from the earlier instances onward — often, prequestionamento of the matter needs to be secured back in the original case, for example through a motion for clarification (embargos de declaração). That is why an early strategic assessment, whenever possible, increases the chances of a successful appeal.
If your case was decided at the appellate level and you want to understand your options for appeal, contact our team for a technical assessment.