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Introduction

Brazil is a civil law country and its legal system, which has its origin in Roman law, was implemented by the Portuguese during the colonization period. The system is based on codes and legislation enacted primarily by the federal legislature power, and also by the legislatures from the states and municipalities. Brazil is a federative republic formed by the indissoluble union of the states, municipalities, and the Federal District.[1] The legislative, executive, and judicial branches compose the Brazilian government.[2]

The National Congress is composed of the Chamber of Deputies and the Federal Senate[3] and it exercises its legislative power through the legislative process.[4] The executive branch encompasses the President of the Republic and the Ministers of State.[5] The judiciary consists of the Federal Supreme Court; National Council of Justice; Superior Tribunal of Justice; Federal Justice; Labor Justice; Electoral Justice; Military Justice; and State Justice.[6]

Levels of the Court System: Brazilian Tribunals and Courts

Federal Supreme Court (external link) (Supremo Tribunal Federal – STF)

The Federal Supreme Court is the highest court in Brazil and is entrusted with the responsibility of safeguarding the Constitution,[7] as well as functioning as a court of review. The Federal Supreme Court also has original jurisdiction to try and decide direct actions of unconstitutionality (Ação Direta de Inconstitucionalidade) of a federal or state law or normative act,[8] or declaratory actions of constitutionality (Ação Declaratória de Constitucionalidade) of a federal law or normative act, which somewhat resemble the issuance of advisory opinions—a situation not allowed in the Supreme Court of the United States.

Brazil does not follow the doctrine of stare decisis[9] and, only after the amendment of the Brazilian Constitution in 2004,[10] did the Supreme Court start issuing, in special situations, binding decisions (Súmulas Vinculantes).[11]

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Stare Decisis

According to article 103-A of the Constitution, the Federal Supreme Court may issue a decision (Súmula Vinculante) with a binding legal effect on the entire judicial branch and in the direct or indirect public administration at the federal, state, and municipal levels. To be issued, it is necessary that a Constitutional matter have been repeatedly decided in the same way by two-thirds of the Court’s members.

Composition: Federal Constitution, article 101:

  • Eleven Justices chosen from among citizens over thirty-five and less than sixty-five years of age; notable juridical learning; and spotless reputation. Appointed by the President, after the nomination has been approved by the absolute majority of the Federal Senate.

Competency: Federal Constitution, article 102:

  • Responsible, essentially, for safeguarding the Constitution.

National Council of Justice (external link) (Conselho Nacional de Justiça – CNJ)

The National Council of Justice (Conselho Nacional de Justiça) was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004.[12] It is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges.[13]

Composition: Federal Constitution, article 103-B:

 Composed of fifteen members who are more than thirty-five and less than sixty-six years of age,  for a term of two years, with one continuation allowed, including:

  • One Justice from the Federal Supreme Court, appointed by the respective Court;
  • One Justice from the Superior Tribunal of Justice, appointed by the respective Court;
  • One Justice from the Superior Tribunal of Labor, appointed by the respective Court;
  • One Justice from a State Tribunal of Justice, appointed by the Federal Supreme Court;
  • One state judge, appointed by the Federal Supreme Court;
  • One judge from a Federal Regional Tribunal, appointed by the Superior Tribunal of Justice;
  • One federal judge, appointed by the Superior Tribunal of Justice;
  • One judge from a Regional Court of Labor, appointed by the Superior Tribunal of Labor;
  • One labor law judge, appointed by the Superior Tribunal of Labor;
  • One member from the federal Public Prosecutor’s Office, appointed by the Attorney General of the Republic;
  • One member of the state Public Prosecutor’s Office, chosen by the Attorney General of the Republic among the names appointed by the competent bodies of each State institution;
  • Two lawyers, appointed by the Federal Council of the Brazilian Bar Association;
  • Two citizens, of notable juridical learning and spotless reputation, one appointed by the Chamber of Deputies and the other appointed by the Federal Senate.

Competency: Federal Constitution, article 103-B, §4:

  • It is incumbent upon the Council to control the administrative and financial activities of the Judicial Power and to fulfill the functional duties of the judges.

Superior Tribunal of Justice (external link) (Superior Tribunal de Justiça – STJ)

Created by the Constitution of 1988,[14] the Superior Tribunal of Justice is responsible for standardizing the interpretation of federal law in Brazil, following constitutional principles and the guarantee and defense of the rule of law.[15]

The STJ is the last instance in the Brazilian legal system for consideration of infra-constitutional issues not directly related to the Constitution.[16] In 2005, as part of the judicial reform implemented through Constitutional Amendment No. 45 of December 30, 2004, the STJ also took jurisdiction in the analysis and grant of letters rogatory and in the judgment and confirmation of foreign decisions, which previously were under the jurisdiction of the STF.[17]

Composition: Federal Constitution, article 104 (Sole paragraph):

  • Composed of a minimum of 33 Justices, chosen from among Brazilians over thirty-five and less than sixty-six years of age. Appointed by the President of the Republic, after their nomination has been approved by an absolute majority of the Federal Senate.

Competency: Federal Constitution, article 105.

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Federal Justice (Justiça Federal)

The Federal Justice is composed of Federal Regional Tribunals (Tribunais Regionais Federal) and Federal Courts (Juízes Federais).

Federal Regional Tribunals (external link) (Tribunais Regionais Federais)

Federal Regional Tribunals have original jurisdiction[18] to hear:

  • cases against federal judges, including military judges and labor law judges whenever they are involved in common crimes and crimes of responsibility; and the members of the Public Prosecutor’s Office (Ministério Público da União) with the exception of the competency of the Electoral Justice;
  • criminal reviews and annulment actions of federal court decisions;
  • writs of mandamus and habeas data against an act of the Federal Regional Tribunal or federal judge;
  • habeas corpus, when the constraining authority is a federal judge; and
  • conflicts of jurisdiction between federal judges subordinated to the Federal Regional Tribunal.

Federal Regional Tribunals act as courts of review[19] in cases decided by federal judges and in cases decided by state judges exercising federal authority in the area of their jurisdiction.

Composition: Federal Constitution, article 107

 Composed of a minimum of 7 Judges appointed by the President of the Republic from  among Brazilians over thirty-five and less than sixty-five years of age:

  • 1/5th must be attorneys with more than ten years of professional experience and members of the Federal Prosecutor’s Office (Ministério Público Federal) with more than ten years in the position.
  • 4/5th federal judges with more than five years in the position.

Competency: Federal Constitution, article 108

Federal Courts (external link)

Federal courts have jurisdiction to try cases in which the Federal Government, its agencies, foundations, and federal public companies are listed as plaintiffs or defendants and in all other matters listed in article 109 of the Constitution. The trial courts of the federal justice are regulated by Law No. 5,010 of May 30, 1966 (external link).

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
September 2010

  1. CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL [C.F.], promulgada em 5 de Outubro de 1988, art. 1, website of the Brazilian Presidency, available at http://www.planalto.gov.br/ccivil_03/Constituicao/Constituiçao.htm (external link) [Back to Text]
  2. Id. art. 2. [Back to Text]
  3. Id. art. 44. [Back to Text]
  4. Id. art. 59. [Back to Text]
  5. Id. art. 76. [Back to Text]
  6. Id. art. 92.[Back to Text]
  7. Id. art. 102. [Back to Text]
  8. Id. art. 102(I)(a). [Back to Text]
  9. “The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.” BLACK’S LAW DICTIONARY 1443 (8th ed. 2004). [Back to Text]
  10. On December 30, 2004, Congress amended the Constitution and established that the final decisions issued by an absolute majority of the members of the Federal Supreme Court would have a binding legal effect on the entire judiciary. The so-called Súmulas Vinculantes are now regulated by Law No. 11,417 of December 19, 2006, and enable the judiciary to judge in a definitive and final way thousands of cases dealing with the same issue. Emenda Constitucional No. 45, de 30 de Dezembro de 2004, available at http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/emc45.htm (external link); and Lei No. 11.417, de 19 de Dezembro de 2006, available at http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2006/Lei/L11417.htm (external link) [Back to Text]
  11. C.F. art. 103-A. [Back to Text]
  12. Emenda Constitucional No. 45, de 30 de Dezembro de 2004, available at http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/emc45.htm (external link). [Back to Text]
  13. C.F. art. 103-B(§4). [Back to Text]
  14. C.F. art. 104. [Back to Text]
  15. Superior Tribunal de Justiça, Atribuições, http://www.stj.gov.br/portal_stj/publicacao/engine.wsp?tmp.area=293 (external link). [Back to Text]
  16. Id. [Back to Text]
  17. Id. [Back to Text]
  18. C.F. art. 108(I). [Back to Text]
  19. C.F. art. 108(II). [Back to Text]

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Last Updated: 03/07/2014