Murillo Gutier | murillo@gutier.adv.br
Abstract
This article examines appellate review as a forgotten constitutional guarantee within the Brazilian legal system. Drawing on the metaphor of Portinari’s scarecrow – a figure that embodies the form of defence without its substance – it analyses the widespread claim that there is no constitutional principle of appellate review in two instances. The study shows that the Imperial Constitution of 1824 enshrined the guarantee in absolute textual terms, whereas the Republican Constitutions reduced it to a mere structural provision.
It is demonstrated that the term “recourses” in Article 5, LV of the 1988 Constitution denotes procedural instruments of reaction, challenge, and control of judicial decisions, and that the guarantee is best understood as an expanded guarantee of adversarial proceedings. The correct position lies in an adequate appealability, which subjects every judicial decision to some mechanism of control without establishing an absolute right to appeal. Without this guarantee, the citizen is reduced to a straw figure – a mere semblance of constitutional protection.
Keywords: Appellate review. Constitutional guarantee. Adequate appealability. Straw-citizen. Adversarial proceedings. Portinari’s scarecrow. Functional autonomy.