The principle of the prohibition of reformatio in pejus consists of the restriction imposed on the second-instance jurisdictional body against aggravating the legal situation of the appellant in the judgment of an appeal where there was no challenge from the opposing party. It is a fundamental institute of Procedural Law — with special relevance in the Criminal, Civil, and Administrative spheres — that aims to ensure legal certainty, the exercise of full defense, and the delimitation of the Court's cognitive activity by the devolutive effect of the appeal.
1. Definition, Concept, and Legal Nature
Reformatio in pejus (reform for the worse) is a procedural phenomenon that occurs when the court, while judging an appeal, issues a decision that aggravates the situation of the sole appellant or, if both parties have appealed, aggravates the situation of one of them on a point that was not the object of challenge by the opposing party. The prohibition of this phenomenon constitutes a principle of a procedural and protective nature.
Its legal nature is that of a preventive or inhibitory rule of jurisdictional activity. It is based on the principle of availability (in civil procedure) and the principle of favor rei and full defense (in criminal procedure). The prohibition prevents the appeal, an instrument intended to improve the appellant's condition, from becoming a procedural "trap" that results in prejudice greater than that established in the challenged decision.
2. Historical Evolution and Comparative Law
Historically, the institute dates back to Late Roman Law, consolidating itself under the maxim tantum devolutum quantum appellatum (as much is devolved as has been appealed). In the medieval inquisitorial system, the prohibition was mitigated, as the superior judge held full powers to review the case in its entirety, seeking the "real truth" regardless of the parties' interests.
With the transition to the accusatory system and the appreciation of the dispositive principle, Comparative Law — notably the Napoleonic Code of 1808 and 19th-century German doctrine — consolidated the prohibition. In Brazil, the 1941 Code of Criminal Procedure already expressly contained the rule, following the trend of liberal democracies to protect the right to appeal without the fear of ex officio jurisdictional reprisals.
3. Legal Provision and Positive Foundation
The prohibition of reformatio in pejus finds support in several instruments of the Brazilian legal system:
- Code of Criminal Procedure (CPP): Art. 617 textually establishes: "The court, chamber, or panel shall comply in its decisions with the provisions of arts. 383, 384, and 385, but must observe the following: the court, chamber, or panel may not, in an appeal exclusively by the defense, aggravate the penalty imposed by the first-instance judge."
- Code of Civil Procedure (CPC/2015): Although it does not use the Latin expression, the principle derives from articles 10 (prohibition of surprise decisions), 141 (principle of congruence or adherence), and 1.013 (extent of the devolutive effect). The court is restricted to the challenged matter.
- Federal Constitution (CF/88): The constitutional foundation lies in Art. 5, subsections LIV (due process of law) and LV (full defense and adversarial proceedings). Reform for the worse without an appeal from the prosecution or the opposing party would violate the inertia of jurisdiction and the adversarial principle.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts has consolidated fundamental distinctions regarding the application of the institute:
4.1. Direct Reformatio in Pejus
This occurs when the Court, in the judgment of the appeal, increases the sanction or removes a benefit granted in the sentence without an appeal from the party interested in such reform. The Superior Court of Justice (STJ), in HC 810.551/SP (2023), reaffirmed that, in an appeal exclusively by the defense, the Court is prohibited from proceeding with a new dosimetry of the penalty that results in an amount higher than that previously fixed, even if based on different legal grounds.
4.2. Indirect Reformatio in Pejus
This is configured when the Court annuls the sentence due to an appeal exclusively by the defense and, in the new judgment issued by the a quo court, a more severe penalty is imposed than that contained in the annulled sentence. The Supreme Federal Court (STF) has a settled understanding that the judge, when issuing a new sentence after an annulment provoked only by the defense, is limited to the quantum of the penalty of the previous sentence (qualitative and quantitative limitation).
4.3. Relevant Precedents (Súmulas)
- STF Precedent 160: "A court decision that accepts, against the defendant, a nullity not argued in the prosecution's appeal is void, except in cases of ex officio appeal."
- TST Precedent 434 (Cancelled): Historically, the TST discussed the application in labor proceedings, where today the subsidiary application of the CPC prevails to prohibit prejudicial reform to the sole appellant employee.
5. Related Principles and Doctrinal Divergences
The institute dialogues directly with the Principle of Congruence and the Devolutive Effect. The main doctrinal divergence lies in the application of the principle in matters of public order.
In Civil Procedure, part of the doctrine (known as the classical proceduralist school) maintains that matters of public order (e.g., conditions of the action, procedural prerequisites) can be recognized ex officio by the Court, even if they result in a worse situation for the appellant (such as the dismissal of the case without resolution of the merits when the appellant sought the reform of the merits). However, the modern jurisprudence of the STJ tends to mitigate this power in respect of the principle of non-surprise (Art. 10, CPC).
In Criminal Procedure, the prevalence is absolute in favor of the defendant. It is not admitted that the Court recognizes aggravating factors or causes for increase not requested by the Public Prosecutor's Office, under penalty of violating the accusatory system.
6. Contemporary Relevance and Practical Impacts
The prohibition of reformatio in pejus is a pillar of decision-making predictability. Without it, the fundamental right to the double degree of jurisdiction would be emptied, as the risk inherent in the appeal would discourage the review of illegal or unjust acts.
In contemporary practice, there is rigorous vigilance regarding the reasoning of criminal dosimetry and the setting of attorney's fees at the appellate level. The impact is direct on procedural strategy: the technical defense can appeal with the security that the ceiling of the sanction or financial prejudice has already been established by the first-instance decision, unless there is a timely challenge by the opposing party.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, LIV and LV.
- BRAZIL. Code of Criminal Procedure. Decree-Law No. 3.689/1941, Art. 617.
- BRAZIL. Code of Civil Procedure. Law No. 13.105/2015, Arts. 10, 141, and 1.013.
- STF. Precedent 160. Available at portal.stf.jus.br.
- STJ. Habeas Corpus No. 810.551/SP. Rel. Min. Reynaldo Soares da Fonseca, Fifth Panel, judged in 2023.
- STF. RHC 223.332/MG. Rel. Min. Edson Fachin, Second Panel, judged in 2023 (regarding indirect reformatio in pejus).
