In some of the articles that were published in this journal (issues of October and November of 2017), I had the opportunity to make considerations about the hypotheses in which an interlocutory appeal can be filed, pursuant to art. 1.015 of the CPC / 15. I wondered that, in essence, and with the remarks that were made, nothing else would have to be pondered about that.
However, now that the Superior Court of Appeals, which is trying to establish a uniform and steady position on the matter, has started to judge it in view of the recent announcement concerning the vote of the distinguished Justice Rapporteur and the debates that followed, giving cause to a plea to see the records, I have decided to write about that topic again. I do not mean to have these remarks somehow considered in the development of the judgment, but essentially to be at peace with myself.
Thus, I considered in previous texts that the solution in the CPC / 73, “although it was not an ideal one, used to be more equitable and accurate: it gave the court the possibility, on a case-by-case basis, to verify whether the damages claimed by the appellant would be current or potential; or, from another angle, whether they would be significant or not. Such rule used to confer the court the burden of verifying whether the grounds of the appealed claim were relevant and, based on that, to judge on a case-by-case basis, and with the expected supporting justification whether the matter or the appeal should be decided immediately or whether it could wait for a possible appeal” (emphasis added).
I also said that “intending to exhaust the hypotheses in which the interlocutory appeal can be filed, the legislator, although with good intentions (of which, a popular proverb says that the road to a “certain hot place” appears to be paved with them), ended up being unrealistic, and has ignored some relevant hypotheses, which, even the public order may be interested to know of right away: the jurisdiction and the value of the claim (on its dimension of a calculation basis for the judicial fee) are eloquent examples. By acting like this, the legislator did not consider the lesson of jurisprudence that was formed at the time of the special appeal held on the records for the cases which, despite the legal text, admitted the immediate filing of the challenge in a higher court. In short, when taking away from the court the prerogative of determining the regime of the appeal, the law made a mistake, and now we are all paying the price of it.” (emphasis added). Nevertheless, I affirmed that “one can not simply ignore that the law has provided the hypotheses for the filing of the interlocutory appeal; and it can not even be said that this limitation would be unconstitutional” (emphasis added).
Considering the above mentioned context, I would like to make further comments on the subject.
As far as we are aware, the intention in the vote was to admit the interlocutory appeal for those cases in which, although it had not been provided for, the resubmission of the matter only by the time of the appellate review could cause some prejudice to the issue. That is to say: if the interlocutory appeal is missing, and therefore the interest to appeal has expired, then it should be forceful to understand that the interlocutory appeal could be adequate. It is also known that the proposal had been partially objected considering the argument that the solution intended could cause uncertainties.
Preserving any other different conviction, there are not any risks of insecurity. As mentioned above, in the former system the Rapporteur was given the prerogative of converting the interlocutory appeal into an appeal that was withheld in the records. In a slightly different way, the vote at the trial would lead to that wise solution. The court will be able to assess if and to what extent, if not knowing of the interlocutory appeal, it would be useless to judge the matter only by the moment of judging the appeal itself. Moreover, the court could even weigh the judgment, on the one hand considering the consequences of not hearing the interlocutory appeal, and, on the other hand, the consequences of afterwards judging in favor of the appellant by hearing and granting the appeal (the subject matter in the interlocutory appeal). In a way, it is paradoxical that insecurity can be perceived in a mechanism that soothes the rigidity of the legal text. It sounds – even if it may not be true – like a distrust of the system itself.
In addition, the debates before the Superior Court of Appeals raise the ascertainment that the rule of art. 1.015 is demanding an interpretation in accordance with the Constitution, which is precisely the one stated by the Rapporteur in her vote and has been above mentioned (although not in the same way, maybe). The explanation – which now appears totally clear to me – is that when the matter can not be resubmitted by means of the interlocutory appeal and its judgment just by the time of the final judgment of the appeal turns out to be useless, the legislator ends up, even if by oblique ways, suppressing the jurisdiction of the court, which would be exercisable by means of the interlocutory appeal, but which will not be exercisable anyhow, precisely because the appeal was prejudiced.
In other words, in the cases where the lack of an immediate judgment of the matter – by means of the interlocutory appeal – may cause any prejudice to the decision of the matter, making the claim in the appeal innocuous, it is an attempt against the constitutional rules of the appellate jurisdiction attributed to the courts. And, why not to say, against the guarantee set forth in item LIII of art. 5 in the Federal Constitution? In this way, the solution to the problem is provided by a traditional criterion: an immediate prejudice gives cause to an interlocutory appeal while a potential harm must be claimed in the appeal.
To think differently would mean having to admit the injunction as a way to prevent the decision of the matter from being impaired. However, it is still time to ask: is this necessary? Would it not be more rational to decide on the matter in the context of the appeal itself and to esteem the role of the court when granting or denying the appeal, by applying the means of the objective criterion above mentioned? Would it be really rational to exchange an appellate jurisdiction (which is the rule of the courts) by an original jurisdiction (which is the exception)?
Again, those alive at the time will be able to see it…