Roberta Cardoso dos Santos
Flávio Cheim Jorge defines an appeal as a “voluntary remedy capable of bringing about, within the same procedural legal relationship, the reversal, invalidation, clarification or supplementation of a court decision” (JORGE, 2015, p. 2216). According to the jurist, appeals have the primary function of correcting possible errors in court decisions, as well as satisfying the natural human tendency not to accept unfavorable judgments.
In practice, the double degree of jurisdiction depends on the existence of two decisions on the disputed matter, each issued by different authorities, one of which is hierarchically superior. In addition, both must be valid, complete and issued in the same proceeding.
Along the same lines, the Constitution, in its article 5, item LV, clearly states that “(…) litigants in judicial or administrative proceedings, and defendants in general, are guaranteed adversarial proceedings and a full defense, with the means and appeals inherent to it”.
It should also be noted that the Code of Civil Procedure, in its article 994 et seq., provides for the right to a “double degree of jurisdiction”. The law states that the following appeals are available: appeal, interlocutory appeal, internal appeal, motion for clarification, ordinary appeal, special appeal, extraordinary appeal, appeal against denial of special or extraordinary appeal, and motion for resolution of divergence.
Therefore, even though the Constitution does not expressly provide for this right, the CPC, in its article 496, establishes mandatory second-instance review of unfavorable judgments. It should therefore be stressed that this legal provision is fully applicable to the courts of auditors insofar as it guarantees the right to file appeals.
Review of appeals in the Courts of Auditors
First, it is worth discussing how appeals are reviewed in the courts of auditors. In this regard, Sandro Luiz Nunes, in his article “Os jurisdicionados e os recursos processuais no Tribunal de Contas catarinense”, makes important contributions to the subject under discussion.
The types of decisions issued by the Courts of Auditors are generally governed by the Organic Law and the Internal Rules of each entity, and the interpreter must observe the type of procedure in which they are issued, given the specific nature of each type of proceeding opened before each Court of Auditors. (NUNES, 2004, p. 163)
Similarly, the author also describes how judgments are issued in the courts of auditors:
A judgment (acórdão) is a decision issued by the Full Court or by the Chambers when making a final decision in accountability or audit proceedings, including special audits, which, examining the merits, rules that the accounts are regular, regular with reservations or irregular, or when the final deliberation results in the imposition of a fine in an oversight proceeding conducted by the Court. (NUNES, 2004, p. 164)
It is also necessary to understand how single-judge decisions are reviewed in the courts of auditors, also discussed by the same author:
A decision, on the other hand, is a deliberative act of the Full Court and of the Chambers, which may be preliminary or final in any proceeding, except in accountability proceedings and special audits, in which the final deliberation will be formalized by a judgment (NUNES, 2004, p. 164).
Thus, the courts of auditors divide their exclusive jurisdiction among the chambers and even among single judges, but appeals against their decisions are decided by the full court or by the judge themselves, as in the case of motions for clarification. It can therefore be seen that appeals are decided by the same body that issued the decision, which makes a double degree of jurisdiction impossible.
Effectiveness of the right to appeal
As explained, the double degree of jurisdiction requires a complete re-examination of cases decided at first instance by a body other than the one that first analyzed them. In this regard, it is worth citing the reasoning of Justice Cármen Lúcia in Writ of Mandamus No. 32,434:
It claims that there is no violation of the natural judge principle or the double degree of jurisdiction, arguing that “the decision issued by the TCU Plenary may be challenged by an appeal addressed to that same body, under the aforementioned Law [No. 8,112/1990] (articles 106 to 109 and 174) and the Internal Rules of the Court of Auditors (art. 15, II), which provides that the Plenary has jurisdiction to decide appeals filed against its own decisions” (p. 8 of event 38).
The constitutional procedural guarantee of the ‘double degree of jurisdiction’ is based on item LV of art. 5 of the Constitution of the Republic and guarantees litigants in judicial or administrative proceedings a full defense with the appeals inherent to it (e.g., Habeas Corpus No. 94,567/BA, Reporting Justice Ayres Britto, 1st Panel, DJe 4.23.2009). In the case at hand, item IV of art. 15 of the Internal Rules of the Federal Court of Auditors, omitted by the respondent authority in the information provided, establishes that “[t]he Plenary, chaired by the President of the Court, has exclusive jurisdiction to: (…) IV – deliberate on appeals against decisions adopted by the President on administrative matters”.
(…)
Thus, the challenged act fails to comply with due process of law, under which the State must obey the very rules it establishes [1].
From the case examined, it can be seen that the Justice considered the guarantee of the double degree of jurisdiction to be ineffective, since the Plenary of the Federal Court of Auditors lacks jurisdiction to act as the first instance in judging a public servant’s conduct; the authority competent to judge and impose the penalty of dismissal would be the President of the Federal Court of Auditors, with the Plenary having appellate jurisdiction, on pain of violating the principles of the natural judge, adversarial proceedings, full defense and double degree of jurisdiction (articles 28, item XXXVIII, and 30, sole paragraph, of the Internal Rules of the Federal Court of Auditors).
It is therefore understood that the right to appeal is mitigated but not eliminated, since the TCU, for example, does not allow the same justice to report both the initial and the final (appellate) decision; that is, when an appeal is filed, the case is redistributed to a new reporting justice, as provided for in article 147 of the Internal Rules of the Federal Court of Auditors:
Art. 147. The distribution of cases to justices and substitute justices shall follow the principles of publicity, alternation and random assignment, and shall be governed by a normative act.
In short, it is clear that the right to appeal in the courts of auditors, although reduced, is guaranteed, since all courts of auditors provide for appeals against their decisions, as well as the review and redistribution of justices to analyze the cases.
Main types of appeal
It is essential to describe, in general terms, the main types of appeal in the courts of auditors.
The appeal (apelação) is suitable for reviewing judgments issued by any of the chambers and decisions of single judges. Under articles 232 et seq. of the Internal Rules of the TCE-PB, once the appeal is filed, the reporting judge will order the necessary steps to prepare the case and hear the Public Prosecutor’s Office attached to the court. Furthermore, whoever reported the case may not report the appeal.
Under article 222 et seq. of the Internal Rules of the TCE-BA, an appeal to reverse a decision of the Full Court or the chambers will be filed with the president and will have suspensive effect. The appeal will be distributed by lot to the reporting panel, composed of a reporting judge and a reviewer.
Requests for reconsideration are available against final decisions in accountability or audit proceedings and work as a review of the judgment. Under article 285 of the TCU Internal Rules, the appeal will have suspensive effect and will be decided by the panel that issued the decision under appeal; it may be filed only once and in writing, by the party or by the Public Prosecutor’s Office attached to the court. In addition, a request for reconsideration will not be heard if untimely, except in the event of new facts.
Accordingly, under article 136 of the Internal Rules of the TCE-SC, a request for reconsideration with suspensive effect will be filed only once, in writing, by the responsible party or by the attorney general of the Public Prosecutor’s Office attached to the court.
Ordinary appeals have the same purpose, but are suitable for decisions issued by the Full Court and the Special Chamber. Under articles 143 et seq. of the Internal Rules of the TCE-SP, an ordinary appeal may be filed only once and will have suspensive effect on final decisions of the auditor, single judge and chambers. The ordinary appeal must be filed by a petition addressed to the president. Then, the president, if not rejecting it outright, will appoint a reporting judge other than the one who issued the decision under appeal.
It should also be noted that the interlocutory appeal (agravo) is valid for single decisions of the president or reporting judge, serving to take the matter to the panel. Under article 289 of the TCU Internal Rules, once the interlocutory appeal is filed, the president of the court, the president of the chamber or the reporting judge may reverse the order or submit the case to the panel competent to judge the merits. If the decision under appeal is the court’s, the reporting judge of the interlocutory appeal will be the same judge who was already handling the case or the drafter of the judgment under appeal, if the latter proposed the precautionary measure.
In addition, motions for clarification are available against any decision and serve to clarify judgments. They are available when the decision is obscure, doubtful or contradictory or fails to address a point on which the court should have ruled. Motions for clarification suspend the deadlines for complying with the decision and for filing appeals.
The rescission appeal is available against a final, unappealable decision of the court and is intended to rescind the judgment. Rescission will therefore be considered an autonomous request and may be filed only once, up to two years after the decision becomes final (article 248 et seq. of the Internal Rules, TCE-AL).
Finally, the revision appeal is essential for final, unappealable decisions in order to rescind judgments. There is also the request for re-examination, which reviews decisions on the merits issued in proceedings concerning acts subject to registration and oversight. Under article 123 of the TCE-GO, the revision appeal will not have suspensive effect and will be filed in writing, only once, by those responsible, their successors or the Public Prosecutor’s Office attached to the court. The revision appeal will be based on a calculation error in the accounts, on falsity or insufficiency of the documents on which the decision under appeal was based, or on new documents that affect the evidence produced. Accordingly, a decision granting the revision appeal will lead to the correction of any and all errors or mistakes found.
Along the same lines, it is worth noting that some courts provide for appeals that are not currently set out in the current Code of Civil Procedure.
Under article 496 of the 1973 Code of Civil Procedure, the appeals available to the parties were: appeal, interlocutory appeal, infringement motions, motions for clarification, extraordinary appeal, special appeal and motions for resolution of divergence in special and extraordinary appeals.
Settlement motions, provided for in article 491 of the Internal Rules of the Paraná Court of Auditors (TCE-PR), are available against the decision ruling on settlement and will follow, where applicable, the procedure established for the review appeal, with suspensive effect. The motions will concern exclusively the settlement of the accounts, and other matters relating to the judgment of the accounts rendered will not be heard. The appeal will be distributed to the reporting judge who issued the decision being challenged and will be scheduled for judgment by the competent body.
A major change proposed in the 2015 Code of Civil Procedure is the abolition of infringement motions. The Alagoas State Court of Auditors provides in its internal rules, in article 242, for infringement motions against non-unanimous decisions of the full court, especially in revision appeals, without suspensive effect. Once the motions are admitted by the president, they will then be distributed to the reporting judge, who will be chosen from among the councilors who did not act in that capacity in the previous judgment.
Conclusion
First, the right to appeal was analyzed based on the legal grounds set out in the Code of Civil Procedure, concluding that the double degree of jurisdiction requires a complete re-examination of cases decided at first instance by a body other than the one that first analyzed them.
In addition, an analytical study was carried out to investigate how the courts of auditors review appeals. As a result, it was understood that the right to appeal is mitigated but not eliminated, since each court of auditors has in its internal rules a mechanism for redistributing the case to a new reporting judge, preventing the same justice from deciding both the initial decision and the appeal.
For this reason, it was necessary to understand the effectiveness of the right to appeal in the courts of auditors. It became evident that the courts of auditors provide for appeals against their decisions and that, given the redistribution mechanism, their review process is valid, precisely because it complies with the due process provided for in the Constitution.
Finally, the main types of appeal admitted by the courts of auditors were set out, analyzing their concept, requirements and applicability for a better legal understanding, and comparing them with provisions of the 1973 CPC still admitted by the Alagoas State Court of Auditors (TCE-AL), such as infringement motions, which are hardly used today.
References
BRAZIL. Federal Law No. 5,869 of January 11, 1973. Available at: https://www.planalto.gov.br/ccivil_03/leis/l5869.htm. Accessed on: 12/14/2023
BRAZIL. Federal Law No. 13,105 of March 16, 2015. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm. Accessed on: 12/14/2023
CHEIM JORGE. Flávio. Breves Comentários ao Novo Código de Processo Civil. Revista dos Tribunais. São Paulo, 2015.
FABRIS, Elisangêla; BOLDRINI, Marciley. O DUPLO GRAU DE JURISDIÇÃO E SUA APLICAÇÃO NO TRIBUNAL DE CONTAS DO ESTADO DO ESPÍRITO SANTO. Semana Científica do Direito UFES: Graduação e Pós-graduação, v. 3, no. 3, 2016.
LASPRO, Oreste Nestor de Souza. Duplo Grau de jurisdição no direito processual civil (Coleção Estudos de Direito de Processo Enrico Tulio Liebman, 33). São Paulo: Revista dos Tribunais, 1995.
NUNES, Sandro Luiz. Os Jurisdicionados e os Recursos Processuais no Tribunal de Contas Catarinense. Revista do Tribunal de Contas de Santa Catarina, 2004.
[1] STF, MS 32434, Reporting Justice: CÁRMEN LÚCIA, 2nd Panel, decided on 09-30-2014, ELECTRONIC PROCEEDING DJe-207 RELEASED 10-20-2014 PUBLISHED 10-21-2014.
Originally published by Conjur (in Portuguese).
