It is common for the institute of the complaint to be placed in the eye of the hurricane of different debates established in doctrine and jurisprudence. In this field, aspects ranging from its existence to its scope are problematised. The broth received new flavourings with the CPC/15, fostering invigorated reflections.
Without pretending to go into each of these topics (either due to their subject matter or their limitations), this article seeks to present a dead-end labyrinth that seems inherent to the mechanism's current regime - starting from its own functional justification. To summarise, although the complaint should serve to protect the authority of decisions handed down by an apex body, in practice it does not serve to protect the most significant ones (since they are handed down by a full collegiate body).
To illustrate this point, consider the following example: when the STF hears a particular concentrated control action in its plenary, it sets the thesis and, in addition, establishes some criterion for temporal modulation. In an individual dispute, however, it is understood that this modulation parameter has been disrespected, authorising the filing of a complaint.
In our current system, this protection will not come from the body that would have the ability to give authentic interpretation to the understanding. Due to a succession of regulatory and normative changes[1] , it is known that today: (i) the Plenary of the Court does not have the power to analyse complaints, as this is the exclusive responsibility of its fractional bodies; and (ii) likewise, there is no means of returning decisions handed down in complaints by the Panels to the wider collegiate body. This creates an undesirable effect: without the possibility of authentic interpretation, there is room for different readings (within the STF itself) of the same issue during a sensitive period. In this situation, it is possible for the modulation thesis to be applied without isonomy or pacification.
It is important to note that the problem is not purely academic, but essentially practical. In the proposed example, depending on their interpretative porosity, it is possible to imagine that each of the panels will re-read and re-signify the modulation thesis that was not proposed by them. And this by narrow majorities that might not be repeated in the Plenary.
But what are the possible ways (if any) of forcing the issue to be considered by the full STF?
A first avenue that could be imagined here would be the opposition of motions for divergence in the face of the fractional judgement. And that's because there is an obvious teleological coupling between the two; the form of appeal in question is aimed precisely at standardising the Court's position internally. There would therefore be a concern with preserving the integrity and coherence of the STF's own decisions.
However, although intuitive, this course of action is forbidden by case law and regulations. In short, while the 2015 Code of Civil Procedure and the RISTF do not authorise the use of this measure to challenge decisions handed down in complaints[2], the Court's case law is firm and categorical in this regard. Thus, it has already been established that, due to the "lack of legal provision", "motions for clarification are not admissible against a judgement handed down by the Panel in the context of a complaint"[3]. It has also been pointed out that "the legitimate use of a divergence motion presupposes a previous collegiate judgement by any of the Panels of this Court in an extraordinary appeal or interlocutory appeal, and the appeal is not suitable for modifying a decision handed down in a complaint"[4].
The unavailability of this door would justify looking for an alternative. Based on the framework that exists today, one route that could potentially be considered would be to file a complaint against a complaint - indicating, in situations such as the one in the example above, that the panel's understanding does not reflect that of the Plenary, which would justify its protection. The ultimate goal, then, would be to shift the judgement of the matter to its original interpreter.
Here again, however, the path is obstructed. Just as is the case with divergence motions, the STF's jurisprudence rejects the filing of a complaint in a complaint. Added to this is the fact that the RISTF, as has been said, does not provide for the explicit competence of the Plenary to analyse complaints[5]. On this point, the Court is firm in stating that "there is no constitutional complaint for the annulment of decisions by Justices or Panels of the Supreme Court, since the acts issued by its bodies, in the exercise of their legal and regimental competences, are attributable to the Court itself"[6].
Finally, having overcome the previous avenues, the "natural" reasoning of the proceduralist would be to seek refuge in the remedy (apparently always available) of the writ of mandamus. From this angle, the preservation of the decision handed down by the Plenary would require the writ to be filed against the act carried out by the Panel. In this way, it would be possible for the wider body to seek to clarify and endorse the content of its previous pronouncement.
Predictably, however, this possibility has no concrete support. After all, the first requirement for a writ of mandamus in the face of judicial decisions is precisely the absence of available appeal mechanisms (strictly speaking, motions for clarification are always possible). Furthermore, there is a need for the decision to be manifestly illegal or teratological - which, in this kind of situation, does not usually occur. Because of this, the STF has already emphasised that its case law "is invariable in affirming that writs of mandamus cannot be issued against acts coming from its collegiate bodies or even its members, individually, in the exercise of judicial service, since they can only be challenged by the proper appeals or through the rescissory action, as a consequence of the procedural system".[7]
From this general framework, it can be seen that there is an unanswered problem: at least as far as the courts are concerned, there are no means capable of allowing decisions of the Plenary to be protected (and clarified) by the Plenary itself. In this context, some questions could naturally arise: what solutions can there be to this dilemma? How can this dynamic be changed?
A first and fairly obvious answer would be a change in the rules of procedure or regulations aimed at resolving the insufficiency in question. This route, however, seems very unlikely, both because of the current exhaustion of the Supreme Court and because the current scenario, as we have said, is the result of changes that (perhaps deliberately) led to this situation.
A second response, based on the mechanisms available today, would be to maximise the provisions of the RISTF, art. 22, sole paragraph, "b", which gives the rapporteur of a measure underway in the fractional body the power and duty to submit "the case to the judgment of the Plenary (...) when, due to the relevance of the legal issue or the need to prevent divergence between the Panels, a pronouncement by the Plenary is appropriate". This path could be used in the context of motions for clarification, for example. And through it, the problem detected here could be dehydrated. What's more, in a broader reading, it might be appropriate to realise that this prerogative is not exclusive to the rapporteur, but extends to any judge who is part of the quorum.
Finally, a third possibility would be to recognise that the current insufficiency, in reality, does not correspond to a problem - but to a tolerable externality. In this hypothesis, however, it is understood that the very purposes of the complaint should be revisited, and that the debate linked to its desirability should be stepped up. After all, the system would be failing precisely in those cases where its operation would tend to be more desirable and assertive.
[1] It is worth emphasising that, prior to the approval of Rule Amendment 45/2011, the Plenary had the power to rule on Complaints aimed at guaranteeing the authority of its own pronouncements. In this context, it made absolute sense not to allow a Motion for Leave to Divergence in a Complaint. After all, if the remedy was judged directly by the body whose decision-making authority was sought to be honoured, its unifying purpose would be ensured. However, as much as the reform of the RISTF removed this competence from the Plenary, the possibility of a Motion for Leave to Divergence in a Complaint has not been accepted.
[2] CPC:
Art. 1.043. A judgement of a fractional body that:
I - in an extraordinary appeal or in a special appeal, diverges from the judgement of any other body of the same court, the judgements being of merit;
II - (Repealed by Law No. 13,256 of 2016).
III - in an extraordinary appeal or special appeal, diverging from the judgement of any other body of the same court, with one judgement being on the merits and the other not having heard the appeal, although it has considered the controversy.
RISTF:
Art. 330: Motions for clarification of judgements may be filed against a decision of a panel which, in an extraordinary appeal or interlocutory appeal, diverges from the judgement of another panel or of the full bench in the interpretation of federal law.
[3] STF, Ag.Reg. nos Emb.Div. no Ag.Reg. na Reclamação 32.600/SP. Reporting Justice Gilmar Mendes. Plenary. Judgement on 20/09/2019. Also, Ag.Reg. nos Emb.Div. nos Emb.Decl. no Ag.Reg. na Reclamação 24.145/SC. Reporting Justice Edson Fachin. Plenary. Judged on 15/10/2018.
[4] Ag.Reg. nos Emb.Div. nos Emb.Decl. no Ag.Reg. na Reclamação 44.874/SP. Reporting Justice Dias Toffoli. Plenary. Judgement on 28/03/2022.
[5] "Art. 9 In addition to the provisions of art. 8, it is the responsibility of the Panels:
(...)
c) complaints aimed at preserving the jurisdiction of the Court or guaranteeing the authority of its decisions or Binding Precedents".
[6] STF, Ag. Reg. na Reclamação 19.526, Rel. Min. Luís Roberto Barroso, First Panel, Jul. 28/04/2015. Also, for example, STF, Emb.Decl. na Reclamação 38.432/SP, Rel. Min. Cármen Lúcia, Second Panel, Judged on 23/03/2020.
[7] STF, Ag. Reg. no MS 35.726, Rel. Min. Luiz Fux, Plenary, Judg. on 17/09/2018. Also, STF, Ag.Reg no MS 37.521, Rel. Min. Carmén Lúcia, Plenary, Judgement on 21/12/2020
