Brazil

During the empire, Brazil had a unitary judicial system. Like France, however, administrative or public law disputes were decided by the Council of State, an executive body outside the judiciary. Pursuant to the 1891 Constitution, which was modeled on the U.S. Constitution, Brazil instituted a dual judicial system of federal and state courts. The state courts have general jurisdiction, while the federal courts have limited jurisdiction. The jurisdiction of the federal courts is generally limited to cases in which federal questions are presented, in which the federal government (or its public enterprises or autarchies) has an interest, in which a crime involves federal property or services, or in which an international concern is present. Since 1891, the Brazilian courts have been given jurisdiction over cases involving both public and private law. Brazil also has three specialized court systems within the judiciary: labor, electoral, and military courts.

Brazil has a career judiciary, although there is lateral entry into the higher courts. A Brazilian national between the ages of twenty-three and forty-five, who has practiced law for two years, can begin a judicial career by passing written and oral tests. Those who pass start their careers in entry-level judicial districts (comarcas de entrância) and eventually are promoted to the higher courts, either on merit or seniority. Those completing a two-year probationary period are guaranteed tenure until retirement age. Their salaries may not be reduced, nor may they be involuntarily transferred.

THE FEDERAL JUDICIARY

Supreme Federal Tribunal

Brazil's highest court is the Supreme Federal Tribunal (STF), which consists of eleven justices (ministros), usually sitting in panels of five. They are appointed by the president, with the approval of an absolute majority of the Senate. The present constitution has redefined the STF's jurisdiction to make it primarily a constitutional court. Direct actions challenging the constitutionality of any federal or state law or normative act can now be brought directly before the STF, whose decision is binding. The right to bring a direct action of unconstitutionality, however, is limited to the president; the procurator general; the executive committees of the Senate, Chamber of Deputies, or state legislatures; state governors; the Federal Council of the Bar Association; any political party represented in Congress; and any syndical confederation or national class (management or labor) entity. The STF has original jurisdiction to decide all requests for issuance of a mandate of injunction, another form of direct constitutional action used to try to make Congress or some other federal agency issue a law or rule necessary to implement a constitutional right.

The STF has ordinary appellate jurisdiction in matters involving habeas corpus, writs of security, habeas data and mandates of injunction decided originally by the Superior Tribunals if they have denied such requests, and in political crimes. The STF also has jurisdiction to hear extraordinary appeals if the appealed decision is contrary to a provision of the Constitution, declares a treaty or federal law unconstitutional, or upholds the constitutionality of a local law or act.

Superior Tribunal of Justice

Directly below the STF in the hierarchy is the Superior Tribunal of Justice (STJ). Created by the 1988 Constitution, the STJ is the court of last resort for much of the appellate caseload formerly decided by the STF. The STJ has thirty-three judges appointed by the president from lists of candidates nominated by courts, the Bar Association, and the Public Ministry. The STJ sits in chambers with five judges each.

The original jurisdiction of the STJ is quite limited, for it functions predominantly as an appellate court. Its ordinary appellate jurisdiction includes cases involving denials of habeas corpus or writs of security by other tribunals below it, and cases in which the parties are a foreign state or an international organization taking legal action against a county or a person resident or domiciled in Brazil. It has jurisdiction to decide on special appeal cases decided by the lower tribunals if the appealed decision is contrary to a treaty or federal law, or denies the effectiveness of a treaty or federal law; upholds a law or act of local government challenged as contrary to federal law; or interprets federal law differently from another tribunal.

Federal Regional Tribunals

Below the STJ are five Federal Regional Tribunals (FRT), located in Rio de Janeiro, Brasília, São Paulo, Pôrto Alegre, and Recife. These courts, each of which has at least seven judges, were created by the 1988 Constitution to replace the former intermediate federal appeals court, the Federal Tribunal of Recourses. The FRTs also have very limited original jurisdiction. Their primary function is to hear appeals from cases decided by federal judges and by state judges exercising federal jurisdiction within their particular region.

Federal Judges

The federal judges are essentially courts of first instance for cases in which the federal government has an interest. Federal judges are career judges, chosen by competitive examinations. If there is no federal judge in a particular judicial district, a state judge may be permitted to decide federal cases. In such event, an appeal may be taken to the FRT.

Labor Courts

The Labor Courts are regular members of the Brazilian federal judiciary. Nevertheless, they differ from the regular judiciary in that their jurisdiction is limited to labor matters and they operate collegially at all levels. Moreover, they are mixed tribunals, composed of both professional judges and lay representatives of labor and management. All Labor Courts have the power to decide any matter connected with labor law. The Labor Court system is exclusively federal; state courts may not decide labor law questions. The Labor Courts have jurisdiction to conciliate and adjudicate individual and collective labor disputes. If collective bargaining negotiations fail to produce an agreement, the parties may appoint arbitrators. If any party refuses to negotiate or to arbitrate, the respective management or labor syndicate may litigate a collective bargaining dispute, and the Labor Courts will establish the rules and conditions for the contractual provisions and the protection of labor.

At the head of the Labor Court system is the Superior Labor Tribunal (SLT), which has twenty-seven judges appointed by the president after approval by the Senate.

Below the SLT are the Regional Labor Tribunals. Every state has at least one Regional Labor Tribunal, as does the federal district. The baseline courts of the Labor Court system are the Boards of Conciliation, which have at least one labor judge and two temporary representatives, one from labor and the other from management.

Electoral Courts

The Electoral Justice system consists of the Superior Electoral Tribunal (SET), the Regional Electoral Tribunals, electoral judges, and the electoral boards. The Electoral Courts are responsible for supervising the integrity of the electoral process. Unlike other Brazilian courts, they are staffed by members of other courts who serve two to four years. Decisions of the SET are not appealable except on constitutional grounds or if they deny writ of habeas corpus or writ of security.

The Regional Electoral Tribunals are misnamed. Each state capital and the federal district has a Regional Electoral Tribunal, whose jurisdiction is statewide rather than regional. The Regional Electoral Tribunals have seven judges, who serve for at least two years, but never more than two consecutive terms.

The baseline courts for the Electoral Justice system are the electoral judges, who sit alone. Usually, the state judge in the electoral district performs the functions of the electoral judge; if there are several judges in the district, the Regional Tribunal selects a judge to serve as electoral judge for a two-year term.

Election returns are supervised by election boards. These boards consist of a law judge and two to four citizens of outstanding reputations nominated by the presiding judge with the approval of the Regional Tribunal.

Federal Military Courts

The Military Courts have jurisdiction to try military personnel (and those equated with such personnel) for military crimes, as defined by law. This court system consists of the Superior Military Tribunal, the Councils of Justice, and professional military judges. The Superior Military Tribunal has fifteen judges with life tenure, appointed by the president with the approval of the Senate.

The judges of first instance are called auditors. They are lawyers and career judges, chosen through competitive examinations. They perform many of the functions of an investigative magistrate or prosecutor. Trials are held before Councils of Justice, made up of one auditor and several military officers.

THE STATE JUDICIARIES

Tribunals of Justice

The highest court in every state is called the Tribunal of Justice. The number of judges, called desembargadores, on the Tribunal of Justice varies from state to state. In the more populous states, where the Tribunals of Justice typically have about one hundred judges, they sit in panels (câmaras) or groups of panels. In more sparsely populated states, the Tribunals of Justice hear appeals directly from courts of first instance.

Intermediate Appeals Courts

More populous states have an intermediate court of appeals, the Tribunal de Alçada. (The busiest court system, São Paulo, has three: two civil and one criminal.) The intermediate court divides jurisdiction with the Tribunal of Justice, hearing appeals relating to leases, labor accidents, fiscal matters, most summary proceedings, and less serious criminal offenses.

State Military Courts

States also have their own systems of military justice. The court of first instance, called the Council of Military Justice, tries military police and firemen for military crimes. In some states appeals from these Councils are heard directly by the state Tribunals of Justice; other states have created their own Tribunals of Military Justice to hear such appeals. These courts usually consist of seven judges, four chosen from colonels in active service in the military police and three civilians.

Courts of First Instance

Each state is divided into judicial districts, and each district has at least one titular law judge (juiz de direito). The state courts of the first instance generally sit as a single judge and have jurisdiction over all matters not specifically allocated to the exclusive jurisdiction of other courts by the Constitution or statute.

Jury Tribunals

Intentional crimes against human life are usually tried by a Jury Tribunal, which consists of one professional judge who presides and seven lay jury members chosen by lot from an array of twenty-one persons. The jury decides whether a crime was committed, the nature of the crime, its gravity, and who committed it.

Verdicts of the Jury Tribunal may be appealed, but the appellate tribunal can only modify the decision with respect to the decisions of the presiding judge and only to correct an error or injustice in his application of the penalty. The appellate tribunal may only make the judgment correspond to what the law establishes and what the jury found. If the appellate court determines that the jury's decision was manifestly contrary to the evidence on the record, it will vacate the jury verdict and remand for retrial by the same Jury Tribunal. A second appeal may not be taken after a retrial.

Small Claims Courts

Since authorizing legislation was passed in 1984, many states have created Small Claims Courts, which decide less complex civil cases and minor criminal infractions. Disputes can be resolved inexpensively through conciliation, arbitration, or trial before a law school graduate. Appeals from these Small Claims Courts are decided by groups of judges of the first instance.

Justices of the Peace

At the very bottom of the state judicial system are justices of the peace, who do not enjoy the constitutional guarantees of the regular judiciary. They are nominated by state governors from a list of three prepared by the president of the Tribunal of Justice. They perform marriages and attempt conciliations, but they have no real jurisdictional functions.

CONCLUSIONS

Brazil has a sophisticated and complex judicial system that looks better on paper than it is in practice. Most courts have huge backlogs, and cases generally move slowly through the system. More resources need to be allocated to the judiciary, and more judges need to be appointed, particularly in urban areas. Excessive formalism needs to be pruned from the procedural codes. The judicial system would benefit from streamlining in order to function efficiently. Justice delayed is justice denied, and unfortunately much justice in Brazil is delayed.

See alsoBrazil, Constitutionsxml .

BIBLIOGRAPHY

The jurisdiction and manner of selection of the Brazilian courts is set out in Articles 92 to 126 of the Constitution of 1988. For detailed commentary on these provisions, see José Cretella Júnior, Comentários à Constituição Brasileira de 1988 2d ed., vol. 6 (1993), pp. 2995-3287. Useful diagrams of the various judicial systems appear in Laerte Romualdo De Souza, III breviá rio de organização judiciária, 2d ed. (1990). Helpful overviews are Athos Gusmão Carneiro, "Política judicial no Brasil: Estrutura do poder judiciário brasileiro conforme a Constituição de 1988," Ajuris 20 (November 1993): 236-252; Paulo Roberto De Gouvêa Medina, "O poder judiciário na Constituição de 1988," Revista Forense, 305 (January-March 1989): 351-371. The law regulating the organization of the judiciary is the Organic Law of the National Judiciary (Lei orgânica da magistratura nacional), Complementary Law 35 (14 March 1979). An overview of Brazilian civil procedure appears in Keith S. Rosenn, "Civil Procedure in Brazil," American Journal of Comparative Law 34 (1986): 487-525.

Additional Bibliography

Barrios, Feliciano, ed. El gobierno de un mundo: Virreinatos y audiencias en la América hispánica. Cuenca: Ediciones de la Universidad de Castilla-La Mancha: Fundación Rafael del Pino, 2004.

Bastos, Aurélio Wander. Introdução à teoria do Direito. 2nd. ed. Rio de Janeiro: Lumen Juris, 1999.

Comargo, José Márcio, ed. Flexibilidade do mercado de trabalho no Brasil. Rio de Janeiro: Fundação Getulio Vargas Editora, 1996.

Flory, Thomas. Judge and Jury in Imperial Brazil, 1808–1871: Social Control and Political Stability in the New State. Austin: University of Texas Press, 1981.

French, John D. Drowning in Laws: Labor Law and Brazilian Political Culture. Chapel Hill: University of North Carolina Press, 2004.

Lara, Silvia Hunold, and Joseli Maria Nunes Mendonça, eds. Direitos e justiças no Brasil: Ensaios de história social. Campinas: Editora UNICAMP, 2006.

Moraes, Alexandre de. Jurisdição constitucional e tribunais constitucionais: Garantia suprema da Constituição. São Paulo: Editora Atlas, 2000.

Pereira, Anthony W. Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina. Pittsburgh: University of Pittsburgh Press, 2005.

Sieder, Rachel, Line Schjolden, and Alan Angell. The Judicialization of Politics in Latin America. New York; Basingstoke: Palgrave Macmillan, 2005.

                                     Keith S. Rosenn