Brazil Judiciary
Judiciary under Constitution Brazil of 1988
Preambles
We, the representatives of the Brazilian People, convened in the National Constituent Assembly to institute a democratic state for the purpose of ensuring the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, based on social harmony and committed, in the internal and international spheres, to the peaceful settlement of disputes, promulgate, under the protection of God, this Constitution of the Federative Republic of Brazil.
Chapter III Judiciary Branch
Section I General Provisions
The following are bodies of the Judiciary Branch:
I. the Federal Supreme Court;
I A. the National Council of Justice;
II. The Superior Court of Justice;
III. The Federal Regional Courts and Federal Judges;
IV. the Labor Courts and Labor Judges;
V. the Electoral Courts and Electoral Judges;
VI. the Military Courts and Military Judges;
VII. the Courts and Judges of the States and of the Federal District and of the Territories.
(1) The Federal Supreme Federal Court, the National Council of Justice, and the Superior Courts have their seat in the Federal Capital.
(2) The Supreme Federal Court and the Superior Courts have their jurisdiction over the entire Brazilian territory.
Article 93 [Statute of Judicature]
A supplemental law proposed by the Federal Supreme Court provides for the bylaws of the Judicature, observing the following principles:
I. admission into the career, with the initial post of substitute judge, by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all phases, at least three years of legal practice being required of holders of a B.A. in law, and obeying the order of classification for appointments;
II. promotion from level to level, alternately through seniority and merit, observing the following rules:
a) promotion is mandatory for a judge who has appeared for three consecutive times or five alternative times in a merit list;
b) merit promotion presupposes two years in office in the respective level, and that the judge appears in the top fifth part of the seniority list of such level, unless no one satisfying such requirements is willing to accept the vacancy;
c) appraisal of merit according to performance and to the objective criteria of productivity and promptness in the exercise of the jurisdictional function and according to attendance and achievement in official or recognized improvement courses;
d) in determining seniority, the court may only reject the judge with the longest service by the justified vote of two-thirds of its members, according to a specific procedure, full defense being ensured, the voting being repeated until the selection is concluded;
e) promotion may not be granted to a judge who unjustifiably withholds case records beyond the legal deadline, and he may not return them to the court archives without providing the necessary disposition thereof or decision thereon.
III. access to the courts of second instance obeys seniority and merit, alternately, as determined at the last or single level;
IV. provision of official courses for preparation, improvement, and promotion of judges, while the participation in an official course or in a course recognized by a national school for the education and further development of judges constitutes a mandatory stage of the tenure acquisition process;
V. the compensation of the Justices of the Superior Courts corresponds to ninety-five percent of the monthly compensation stipulated for the Justices of the Supreme Federal Court, and the compensation of the other judges is stipulated by law and distributed, at the federal and state levels, according to the respective categories of the national judiciary structure, and the difference between categories may not be higher than ten per cent or lower than five per cent, nor higher than ninety-five per cent of the monthly compensation of the Justices of the Superior Courts, with due regard, in any of the cases, for the provisions of articles 37 XI, and 39 (4);
VI. the retirement of judges as well as the pensions for their dependents comply with the provisions of article 40;
VII. a permanent judge resides in the respective judicial district, except when otherwise authorized by the court;
VIII. the acts of removal, of placement on paid availability, and of retirement of a judge, for public interest, are based on a decision by the vote of the absolute majority of the respective court or of the National Council of Justice, full defense being ensured;
VIII-A. the removal upon request or the exchange of judges of same-level judicial districts obeys, insofar as pertinent, the provisions of sub-items a), b), c), and e) of item II;
IX. all judgments of the bodies of the Judicial Power are public, and all decisions are justified, under penalty of nullity, but the law may limit attendance, in given acts, to the interested parties and to their lawyers, or only to the latter, whenever preservation of the right to privacy of the party interested in confidentiality will not harm the right of the public interest to information;
X. administrative decisions of courts are supported by a recital and are made in open session, and disciplinary decisions are taken by the vote of the absolute majority of their members;
XI. in courts with more than twenty-five judges, a special body may be constituted, with a minimum of eleven and a maximum of twenty-five members, to exercise delegated administrative and jurisdictional duties which are under the powers of the full court, half of the positions being filled according to seniority and the other half through election by the full court;
XII. courts will operate continuously, without interruption, collective vacation being forbidden for first instance judges and courts of second instance, and there must be judges on duty at all times on days in which courts are closed;
XIII. the number of judges in each court is proportional to the effective judicial demand and to the respective population;
XIV. court employees will receive delegation to carry out administrative acts and acts aimed at the mere disposition of matters, without a decisional nature;
XV. proceedings will be assigned immediately upon filing, at all levels of jurisdiction.
Article 94 [Composition of some Courts]
One fifth of the seats on the Federal Regional Courts, of the Courts of Appeals of the States and of the Federal District and Territories are formed by members of the Attorney General’s Office with over ten years of service, and by lawyers of notorious legal knowledge and unblemished reputation, with over ten years of actual professional activity, indicated in a list of six names by the entities which represent the respective groups.
(1) Upon receipt of the indications, the court sets up a list of three names and sends it to the Executive, which within the subsequent twenty days chooses one of the listed names for appointment.
Article 95 [Guarantees of the Judges]
(0) Judges enjoy the following guarantees:
I. life tenure, which, at first instance, is only acquired after two years in office and, during this period, loss of office is determined by the court to which they belong and, in other cases, by a final and unappealable court decision;
II. irremovability, except by reason of public interest, according to Article 93 VIII;
III. irreducibility of compensation, except for the provisions of Articles 37 XI, 150 II, 153 III, and 153 (2) I.
(1) Judges are forbidden to:
I. hold, even when suspended from office, any other office or position, except for a teaching position;
II. receive, on any account or for any reason, court costs or participation in a lawsuit;
III. engage in political party activities;
IV. receive, on any account or for any reason, financial aid or contribution from individuals, and from public or private institutions, save for the exceptions set forth in law;
V. practice law in the court or tribunal on which they served as judges, for a period of three years following their retirement or discharge.
(0) It is the exclusive competence of:
I. the Courts of Appeals:
a) to elect their directive bodies and prepare their internal regulations following the rules of procedure and the procedural guarantees of the parties, establishing the jurisdiction and operation of the respective jurisdictional and administrative bodies;
b) to organize their secretariats and ancillary services and those of the courts connected with them, ensuring performance of the respective inspection activities;
c) to fill, in the manner set forth in this Constitution, offices of career judges within their respective jurisdiction;
d) to propose the creation of new courts of first instance;
e) to fill by means of public competitive examination of tests, or of tests and titles, with due regard for the provisions of Article 169 (1), the offices required for the administration of Justice, with the exception of positions of trust as defined by law;
f) to grant leave, vacations, and other absences to their members and to the judges and employees who are immediately subordinated to them;
II. the Supreme Federal Court, the Superior Courts and the Courts of Justice, to propose to the respective Legislative Power, with due regard for the provisions of article 169:
a) alteration in the number of members of lower courts;
b) creation and abolishment of offices and the remuneration of the auxiliary services and of the courts connected with them, as well as the establishment of the compensation for their members and for the judges, including those of the lower courts, if existing;
c) creation or extinction of lower courts,
d) alteration of the judiciary organization and division;
III. the Courts of Appeals to try judges of the States, of the Federal District and of the Territories, as well as the members of the Attorney General’s Office, for common crimes and criminal malversation, except in those cases coming under the jurisdiction of the Electoral Courts.
Article 97 [Unconstitutionality]
The courts may declare the unconstitutionality of a law or of a normative act of the Government only by an absolute majority of their members or of the members of the respective special body.
Article 98 [Territories and Federal District]
(0) The Republic, in the Federal District and in the Territories, and the States, creates:
I. specialized courts, which have qualified judges or qualified and lay judges, with jurisdiction for conciliation, judgment and execution of civil suits of lesser complexity and criminal offenses of lower offensive potential, by oral and summary proceedings, allowing, in the cases set forth in the law, settlement and judgment of appeals by panels of judges of first instance;
II. remunerated justice of peace, formed by citizens elected by direct, universal, and secret ballot with a term of office of four years and jurisdiction to, as set forth in the law, perform marriages, verify, ex officio or by reason, of a challenge, qualification proceedings, and exercise conciliatory functions of a non-jurisdictional nature, besides other functions set forth in the law.
(1) Federal legislation provides for the establishment of special courts within Federal Justice.
(2) Judicial costs and fees are assigned exclusively to fund services related to activities which are specific of Justice.
(0) The Judiciary Branch is assured of administrative and financial autonomy.
(1) The courts draw up their budget proposals, within the limits stipulated jointly with the other Branches in the budget directives law.
(2) The proposal, after hearing the other interested courts, is forwarded:
I. at Federal level, by the Chief Justices of the Federal Supreme Court and of the Superior Courts, with the approval of the respective courts;
II. at State level, as well as the level of the Federal District and Territories, by the Chief Justices of the Courts of Appeals, with the approval of the respective courts.
(3) If the government bodies referred to in paragraph (2) do not forward their respective budget proposals within the time period stipulated in the law of budgetary directives, the Executive Power, with a view to engrossing the annual budget proposal, takes into account the figures approved in the current budgetary law, such figures adjusted in accordance with the limits stipulated under the terms of paragraph (1) of this article.
(4) If the budget proposals referred to in this article and thus forwarded do not obey the limits stipulated under paragraph (1), the Executive Power effects the necessary adjustments with a view to engrossing the annual budget proposal.
(5) In the implementation of the budget of a specific fiscal year, no expenses may be incurred and no obligations may be assumed that exceed the limits stipulated in the law of budgetary directives, except when previously authorized, by opening supplementary or special credits.
Article 100 [Special Payments]
(0) Payments owed by the federal, state, Federal District, or municipal treasuries, by virtue of a court decision, may only be made exclusively in chronological order of submission of court orders and charged to the respective credits, it being forbidden to designate cases or persons in the budgetary appropriations and in the additional credits opened for such purpose.
(1) Support-related debts include those arising from wages, salaries, pay, pensions, and their supplementations, social security benefits and compensation for death and disability, such compensation being based on civil liability, by virtue of a final and unappealable judicial decision, and must be paid before any other debts, except those referred to in Paragraph 2 of this article.
(1A) Alimony debts include those arising from salaries, remuneration, pay, pensions, and their supplementations, social security benefits and compensation for death and disability, such compensation being based on civil liability, by virtue of a final and unappealable judicial decision.
(2) Support-related debts owed to persons aged 60 (sixty) or over on the date the respective court order is issued, or to persons with serious diseases, as defined by law, must be paid before any other debts, up to an amount equivalent to three times the amount stipulated by law for the purposes of paragraph 3 of this article, parceling for such end being permitted, whereas the remaining amount must be paid according to the chronological order of submission of respective court order.
(3) The provision contained in the head paragraph of this article, regarding the issuance of court orders, does not apply to bonds defined by law as being of a small amount, which must be paid by the treasuries herein referred to by virtue of a final and unappealable judicial decision.
(4) For the purposes of the provision of paragraph 3, different amounts may be stipulated for the federating units through their own legislation and according to their various economic capabilities, whereas the minimum amount is equal to the amount of the highest benefit paid by the general Social Security scheme.
(5) It is mandatory for the budgets of the federating units to include the funds required for payment of debts arising from final and unappealable judicial decisions, stated in court orders submitted until or on July 1, and payment are to be made before the close of the subsequent fiscal year, on which date their amounts must be adjusted for inflation.
(6) the budgetary allocations and the credits opened is assigned to the Judicial power, it being within the competence of the presiding Judge of the court which rendered the decision of execution to determine full payment and to authorize — upon petition of a creditor and exclusively in the event that his right of precedence is not respected or that the amount necessary to satisfy the debt has not been set aside — attachment of the respective amount.
(7) The Presiding Judge of the appropriate Court who, by means of an act or omission, delays or attempts to frustrate the regular payment of a court-ordered debt is liable to crime of malversation and must also appear before the national council of Justice.
(8) The issuance of a court order as supplementation to or in addition to an amount already paid, as well as the parceling, apportionment, or reduction of the amount under execution — so that the provision of paragraph 3 may be applied to a portion of the total amount — is forbidden.
(9) At the time a court order is issued, irrespective of the relevant regulation, there must be a deduction from such court order, for the purpose of a set-off, an amount corresponding to clear legal debits, either registered or not under debts in execution and attributed to the original creditor by the treasury in debt, including future accruing installments of parceling, save for those whose execution has been stayed by virtue of administrative or judicial challenge.
(10) Before a court order is issued, the relevant court requests that the Treasury in debt must provide, within 30 (thirty) days, otherwise subject to loss of the right to offset, information on the debits which meet the conditions stipulated in paragraph 9, for the purposes set forth in said paragraph.
(11) In accordance with legislation of the federating unit in debt, a creditor may employ court order credits to purchase public property belonging to the respective federating unit.
(12) As from the date Constitutional Amendment no. 62 is enacted, the amounts stated in court orders, after such court orders are issued up until effective payment, irrespective of their nature, must adjusted according to the official rate applied to savings accounts, whereas, for the purpose of compensation of delay in the payment, simple interest will be applied at the same percentage of interest applied to savings accounts, the employment of compensatory interest being excluded.
(13) Creditors may assign their court order credits, in whole or in part, to third parties, irrespective of consent by the debtor, and the provisions of paragraphs 2 and 3 must not be applied to the assignee.
(14) Assignment of court order credits only produces effects after communication to the court of origin and to the federating unit in debt by filing a relevant petition.
(15) Without prejudice to the provisions of this article, a supplementary law to this federal constitution may establish a special regime for the payment of court-ordered debts owed by states, the federal district, and Municipalities, providing for earmarked net current revenues and for payment term and methods.
(16) The federal Government may, at its own discretion and under the terms of relevant law, take on debts resulting from court orders issued against a State, the Federal District, or a Municipality, and refinance them directly.
Section II Federal Supreme Court
Article 101 [Composition, Nomination]
(0) The Federal Supreme Court is formed by eleven Justices, chosen among citizens over thirty-five years and under sixty-five years of age, with notorious legal knowledge and unblemished reputation.
(1) The Justices of the Federal Supreme Court are appointed by the President of the Republic, after the choice is approved by the absolute majority of the Federal Senate.
Article 102 [Functions, Constitutional Court]
(0) The Federal Supreme Court is responsible, mainly, for safeguarding the Constitution and it is incumbent upon it:
I. to process and adjudicate, originally:
a) direct actions of unconstitutionality of a federal or state law or normative act, and declaratory actions of constitutionality of a federal law or normative act;
b) in common criminal offenses, the President of the Republic, the Vice President, the members of Congress, its own Justices and the Attorney General of the Republic;
c) in common criminal offenses and crimes of malversation, the Ministers of State and the Commanders of the Navy, the Army, and the Air Force, except as provided in article 52 I, the members of the Superior Courts, those of the Federal Audit Court and the heads of permanent diplomatic missions;
d) habeas corpus when the petitioner is any one of the persons referred to in the preceding subsections; writs of mandamus and habeas data against acts of the President of the Republic, of the Presiding Boards of the House of Representatives and of the Federal Senate, of the Audit Tribunal of the Union, of the Attorney General of the Republic, and of the Federal Supreme Court itself;
e) litigation between a foreign State or international organization and the Republic, a State, the Federal District or a Territory;
f) disputes and conflicts between the Republic and the States, the Republic and the Federal District, or between one another, including their respective indirect administration entities;
g) extradition requested by a foreign State;
h) {Revoked};
i) habeas corpus, when the constraining party is a Superior Court, or when the constraining party or the petitioner is an authority or employee whose acts are directly subject to the jurisdiction of the Supreme Federal Court, or in the case of a crime, subject to the same jurisdiction in one sole instance;
k) claims for the preservation of its jurisdiction and guarantee of the authority of its decisions;
l) enforcement of a court decision in a case for which it has original jurisdiction, the delegation of authority to perform procedural acts being allowed;
m) suits in which all members of the courts are directly or indirectly involved, and suits in which more than half of the members of the court of origin are impaired or have a direct or indirect interest;
n) conflicts of jurisdiction between the Superior Court of Justice and any other courts, between Superior Courts, or between the latter and any other court;
o) requests for a writ of prevention in direct actions of unconstitutionality;
p) writs of injunction, when preparation of the regulation is the responsibility of the President of the Republic, of Congress, of the House of Representatives, of the Federal Senate, of the Presiding Boards of one of these Legislative Chambers, of the Audit Tribunal of the Union, of one of the Superior Courts, or of the Federal Supreme Court itself;
q) writs of injunction, when drawing up of the regulation is the responsibility of the President of the Republic, of the National Congress, of the Chamber of Deputies, of the Federal Senate, of the Directing Boards of one of these legislative houses, of the Federal Audit Court, of one of the Superior Courts, or of the Supreme Federal Court itself;
r) lawsuits against the National Council of Justice and against the National Council of the Public Prosecution
II. to adjudicate, at ordinary appeal level:
a) habeas corpus, writs of mandamus, habeas data and writs of injunction decided in a sole instance by the Superior Courts, in the event of a denial;
b) political crimes;
III. to adjudicate, at extraordinary appeal level, cases decided in a sole or last instance, when the appealed decision:
a) is contrary to a provision of this Constitution;
b) declares the unconstitutionality of a treaty or a federal law;
c) considers valid a law or an act of a local government contested under this Constitution;
d) considers valid a local law challenged in the light of a federal law.
(1) A claim of non-compliance with a fundamental precept deriving from this Constitution is examined by the Supreme Federal Court, under the terms of the law.
(2) Final decisions on merits, pronounced by the Supreme Federal Court, in direct actions of unconstitutionality and declaratory actions of constitutionality have force against all, as well as a binding effect, as regards the other bodies of the Judicial Power and the governmental entities and entities owned by the Federal Government, in the federal, state, and local levels.
(3) In an extraordinary appeal, the appealing party must demonstrate the general repercussion of the constitutional issues discussed in the case, under the terms of the law, so that the Court may examine the possibility of accepting the appeal, and it may only reject it through the opinion of two thirds of its members.
Article 103 [Unconstitutional Acts Cassation]
(0) The following may file direct actions of unconstitutionality and declaratory actions of constitutionality::
I. the President of the Republic;
II. the Presiding Board of the Federal Senate;
III. the Presiding Board of the House of Representatives;
IV. the Directing Board of a State Legislative Assembly or of the Federal District Legislative Chamber;
V. a State Governor or the Federal District Governor;
VI. the Attorney General of the Republic;
VII. the Federal Council of the Brazilian Order of Lawyers;
VII. a political party represented in Congress;
IX. a confederation of labor unions or a national class entity.
(1) The Attorney General of the Republic is first heard in unconstitutionality actions and in all suits coming under the jurisdiction of the Federal Supreme Court.
(2) Upon declaration of unconstitutionality through lack of procedures to make a constitutional provision effective, the appropriate Branch is notified to adopt the necessary action and, in the case of an administrative body, to do so within thirty days.
(3) When the Federal Supreme Court examines the theoretical unconstitutionality of a legal provision or normative act, it first summons the Advocate General of the Republic, who defends the challenged act or text.
(4) {Revoked}.
Article 103 A [Issue of a summula]
(0) The Federal Supreme Court may, ex-officio or upon request, upon decision of two thirds of its members, and following reiterated judicial decisions on constitutional matter, issue a summula (restatement of case law) which, as from publication in the official press, has a binding effect upon the lower bodies of the Judicial Power and the direct and indirect public administration, in the federal, state, and local levels, and which may also be reviewed or revoked, as set forth in law.
(1) The purpose of a summula is to validate, construe, and impart effectiveness to some rules about which there is a current controversy among judicial bodies or among such bodies and the public administration, and such controversy brings about serious juridical insecurity and the filing of multiple lawsuits involving similar issues.
(2) Without prejudice to the provisions the law may establish, the issuance, review, or revocation of a summula may be requested by those who may file a direct action of unconstitutionality.
(3) An administrative act or judicial decision which contradicts the applicable sum- mula or which unduly applies a summula may be appealed to the Supreme Federal Court, and if the appeal is granted, such Court declares the administrative act null and void or overrule the appealed judicial decision, ordering that a new judicial decision be issued, with or without applying the summula, as the case may be.
Article 103 B [Composition of The National Council of Justice]
(0) The National Council of Justice is composed of 15 (fifteen) members appointed for a two-year term of office, one reappointment being permitted, as follows:
I. the Chief Justice of the Supreme Federal Court;
II. a Justice of the Superior Court of Justice, nominated by said Court;
III. a Justice of the Superior Labor Court, nominated by said Court;
IV. a judge of a State Court of Justice, nominated by the Supreme Federal Court;
V. a state judge, nominated by the Supreme Federal Court;
VI. a judge of a Federal Regional Court, nominated by the Superior Court of Justice; VII. a federal judge, nominated by the Superior Court of Justice;
VIII. a judge of a Regional Labor Court, nominated by the Superior Labor Court;
IX. a labor judge, nominated by the Superior Labor Court;
X. a member of the Public Prosecution of the Union, nominated by the Attorney-General of the Republic;
XI. a member of a state Public Prosecution, chosen by the Attorney-General of the Republic from among the names indicated by the competent body of each state institution;
XII. two lawyers, nominated by the Federal Board of the Brazilian Bar Association; XIII. two citizens of notable juridical learning and spotless reputation, one of whom nominated by the Chamber of Deputies and the other one by the Federal Senate.
(1) The Council is presided over by the Chief Justice of the Supreme Federal Court, and, in the event of his absence or impediment, by the most senior associate Justice of the supreme federal court.
(2) the other members of the council are appointed by the President of the Republic, after their nomination has been approved by the absolute majority of the federal senate.
(3) If the nominations set forth in this article are not effected within the legal deadline, selection is incumbent upon the Federal Supreme Court.
(4) It is incumbent upon the Council to control the administrative and financial operation of the Judicial Branch and the proper discharge of official duties by judges, and in addition to other duties that the Statute of the Judicature may confer upon it, it:
I. ensures that the Judicial Branch is autonomous and that the Statute of the Judicature is complied with, and it may issue regulatory acts within its jurisdiction, or recommend measures;
II. ensures that article 37 is complied with, and examines, ex-officio or upon request, the legality of administrative acts carried out by members or bodies of the Judicial Branch, and it may revoke or review them, or stipulate a deadline for the adoption of the necessary measures to achieve due execution of the law, without prejudice to the powers of the Federal Audit Court;
III. receives and examines complaints against members or bodies of the Judicial Branch, including against its ancillary services, clerical offices, and bodies in charge of notary and registration services which operate by virtue of Government delegation or have been made official, without prejudice to the courts’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the National Council of Justice, determine the removal, placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full defense being ensured;
IV. presents a formal charge to the Public Prosecution, in the case of crime against public administration or abuse of authority;
V. reviews, ex-officio or upon request, disciplinary proceedings against judges and members of courts tried in the preceding twelve months;
VI. prepares a twice-a-year statistical report on proceedings and judgements rendered per unit of the Federation in the various bodies of the Judicial Branch;
VII. prepares a yearly report, including the measures it deems necessary, on the state of the Judicial Branch in the Country and on the Council’s activities, which report must be an integral part of a message to be forwarded by the Chief Justice of the Supreme Federal Court to the National Congress upon the opening of the legislative session.
(5) The Justice of the Superior Court of Justice occupies the position of Corregidor- Justice, in charge of internal affairs, and he is excluded from the assignment of proceedings in said Court, the following duties being incumbent upon him, in addition to those that may be conferred upon him by the Statute of the Judicature:
I. to receive complaints and accusations from any interested party regarding judges and judiciary services;
II. to exercise executive functions of the Council concerning inspection and general correction;
III. to requisition and appoint judges, charging them with specific duties, and to requisition court employees, including in the States, the Federal District, and the Territories.
(6) The Attorney General of the Republic and the Chairman of the Federal Board of the Brazilian Bar Association is competent to petition before the Council.
(7) The Union establishes Justice ombudsman’s offices, including in the Federal District and in the Territories, with powers to receive complaints and accusations from any interested party against members or bodies of the Judicial Branch, or against their ancillary services, thus presenting formal charges directly to the National Council of Justice
Section III Superior Court of Justice
Article 104 [Composition, Nomination]
(0) The Superior Court of Justice is formed by at least thirty-three Justices.
(1) The Justices of the Superior Court of Justice are appointed by the President of the Republic, chosen from among Brazilians over thirty-five and under sixty-five years of age, of notable juridical learning and spotless reputation, after the nomination has been approved by the absolute majority of the Federal Senate, as follows:
I. one third among the judges of the Federal Regional Courts, and one third among the judges of the Courts of Appeals, indicated in a list of three names drawn up by the Court itself;
II. one third, in equal parts, among lawyers and members of the Attorney General’s Office of the Republic, of the States, of the Federal District and of the Territories, alternately, indicated as set forth in Article 94.
Article 105 [Functions of the Court]
(0) It is incumbent upon the Superior Court of Justice:
I. to process and adjudicate, originally:
a) in common crimes, the Governors of the States, and of the Federal District and, in common crimes and criminal malversation, the justices of the Courts of Appeals of the States and of the Federal District, the members of the Audit Courts of the States and of the Federal District, those of the Federal Regional Courts, of the Regional Electoral and Labor Courts, the members of Audit Courts or Councils of the Municipalities, and the members of the Attorney General’s Office of the Republic, who act before courts;
b) writs of mandamus and habeas data against an act of a Minister of State, of the Commanders of the Navy, the Army, and the Air Force, or of the Court itself;
c) habeas corpus, when the constraining party or the petitioner is any of the persons mentioned in sub-item a), or when the constraining party is a court subject to its jurisdiction, a Minister of State or a Commander of the Navy, the Army, or the Air Force, except for the competence of the Electoral Courts;
d) conflicts of jurisdiction between any courts, except for the provisions of Article 102 I o), as well as between a court and judges not subordinated to it, and between judges subordinated to different courts;
e) criminal reviews of and the rescissory actions for its decisions;
f) claims for the preservation of its jurisdiction and guarantee of the authority of its decisions;
g) conflicts of authority between administrative and judicial authorities of the Republic, or between judicial authorities of one State and administrative authorities of another State or of the Federal District, or between those of the latter and those of the Republic;
h) writs of injunction, when the preparation of the regulation is the responsibility of a federal body, entity or authority, of direct or indirect administration, with the exception of cases coming under the jurisdiction of the Federal Supreme Court and of the bodies of the Military Courts, or the Electoral Courts, of the Labor Courts and of the Federal Courts;
i) the homologation of foreign court decisions and the granting of exequatur to rogatory letters.
II. to adjudicate, at ordinary appeal level:
a) habeas corpus decided in a sole instance or last instance by the Federal Regional Courts or by the courts of the States, of the Federal District and Territories, when the decision denies it;
b) writs of mandamus decided in a sole instance by the Federal Regional Courts or by the courts of the States, of the Federal District and of the Territories, when the decision denies it;
c) cases in which the parties are a foreign State or an international organization on the one part, and a Municipality or a person resident or domiciled in Brazil on the other part;
III. to adjudicate, at special appeal level, cases decided, in a sole instance or last instance, by the Federal Regional Courts or by the courts of the States, of the Federal District and Territories, when the appealed decision:
a) is contrary to a treaty or federal law or denies the effectiveness thereof;
b) considers valid an act of a local government, challenged in the light of a federal law;
c) confers upon a federal law an interpretation different from that which has been conferred upon it by another court.
(1) The following operate in conjunction with the Superior Court of Justice:
I. the National School for the Education and Further Development of Judges, which is in charge, among other duties, of regulating the official courses for admission into and promotion in the career;
II. the Council of Federal Justice, which, under the terms of the law, exercises administrative and budgetary supervision over the Federal Courts of first and second instances, in the quality of the main body of the system, having powers to correct administrative acts, and whose decisions have a binding nature.
Section IV Federal Regional Courts and Federal Judges
Article 106 [Federal Courts in the States]
The following are bodies of the Federal Courts:
I. the Federal Regional Courts;
II. the Federal Judges;
Article 107 [Composition, Nomination, Seat]
(0) The Federal Regional Courts are formed by at least seven judges, selected, whenever possible, in their respective regions and appointed by the President of the Republic among Brazilians over thirty and under sixty-five years of age, of which:
I. one fifth among lawyers with over then years of actual professional activity and members of the Federal Public Prosecution, with more than ten years of service;
II. the others, through promotion of federal judges with over five years of service, based on seniority and merit, alternately.
(1) A law regulates the removal or exchange of Federal Regional Court judges and determines their jurisdiction and seat.
(2) The Federal Regional Courts installs an itinerant justice system, carrying out hearings and other functions typical of the operation of justice, within the territorial limits of the respective jurisdiction, and making use of public and community facilities.
(3) The Federal Regional Courts may operate in a decentralized mode, by creating regional Divisions, with a view to affording claimants full access to justice in all stages of the judicial action.
Article 108 [Functions of Federal Regional Court]
It is incumbent upon the Federal Regional Courts to:
I. process and adjudicate, originally:
a) federal judges of the area of their jurisdiction, including those of the Military Courts and of the Labor Courts, in common crimes and in criminal malversation, and the members of the Federal Attorney General’s Office, except for the jurisdiction of the Electoral Courts;
b) criminal review of and the rescissory action for their decisions or those of the federal judges of the region;
c) writs of mandamus and habeas data against an act of the Court itself or of a federal judge;
d) habeas corpus, when the constraining authority is a federal judge;
e) conflicts of jurisdiction between federal judges subordinated to the Court;
II. adjudicate at appeal level, cases decided by federal judges and by state judges exercising federal authority in the area of their jurisdiction.
Article 109 [Federal Judges’ Functions]
(0) It is incumbent upon the federal judges to process and adjudicate:
I. cases in which the Republic, an autonomous government entity or a federal public company have an interest as plaintiffs, defendants, assistants or opponents, except for those relating to bankruptcy, to labor accidents and those subject to the Electoral Courts and the Labor Courts;
II. cases between a foreign State or international organization and a Municipality or a person domiciled or resident in Brazil;
III. cases based on a treaty or a contract of the Republic with a foreign State or international organization;
IV. political crimes and criminal offenses against property, services or interests of the Republic or of its autonomous government entities or public companies, excluding misdemeanor and excepting the jurisdiction of Military Courts and Electoral Courts;
V. crimes set forth in an international treaty or conventions, when, prosecution having commenced in Brazil, the result has taken place or should have taken place abroad, or reciprocally;
V-A. cases regarding human rights referred to in paragraph (5) of this article;
VI. crimes against the organization of labor and, in the cases determined by law, against the financial system and the financial economic order;
VII. habeas corpus, in criminal matters under their jurisdiction or when the constraint originates from an authority whose acts are not directly subject to another jurisdiction;
VIII. writs of mandamus and habeas data against an act of a federal authority, except for those cases coming under the jurisdiction of the higher federal courts;
IX. crimes committed abroad ships or aircraft, except for the jurisdiction of the Military Courts;
X. crimes of irregular entry or stay of a foreigner, execution of letters rogatory after exequatur, and of foreign court decision after homologation, cases referring to nationality, including the respective options, and to naturalization;
XI. disputes over the rights of Indians.
(1) Cases in which the Republic is the plaintiff are instituted in the judicial section where the other party is domiciled.
(2) Cases filed against the Republic may be instituted in the judicial section in which the plaintiff is domiciled, in what where the act or fact given rise to the suit took place, or where the item is located, or, further, in the Federal District.
(3) Cases in which the parties are a social security institution and its beneficiary is processed and adjudicated in the state Courts, in the forum domicile of the beneficiary, whenever the judicial district is not the seat of a federal court; in such a situation, the law may permit other cases to be processed and adjudicated in the state Courts.
(4) In the event of the preceding paragraph, the proper appeal always lies with the Federal Regional Court in the jurisdictional area of the judge of first instance.
(5) In cases of serious human rights violations, and with a view to ensuring compli- ance with obligations deriving from international human rights treaties to which Brazil is a party, the Attorney-General of the Republic may request, before the Superior Court of Justice, and in the course of any of the stages of the inquiry or judicial action, that jurisdiction on the matter be taken to Federal Justice.
(0) Each State, as well as the Federal District, is a judicial section, which has its seat in the respective Capital, and courts located as set forth in the law.
(1) In the Federal Territories, the jurisdiction and duties vested in the federal judges are incumbent upon the judges of the local courts, according to the law.
Section V Labor Courts and Labor Judges
(0) The following are bodies of the Labor Courts:
I. the Superior Court of Labor;
II. the Regional Labor Courts;
III. Labor Judges.
Article 111 A [Composition of The Superior Labor Court]
(0) The Superior Labor Court is composed of twenty-seven Justices, chosen from among Brazilians over thirty-five and under sixty-five years of age, appointed by the President of the Republic after approval by the absolute majority of the Federal Senate, as follows:
I. one-fifth from among lawyers effectively practicing their professional activity for more than ten years and from among members of the Labor Public Prosecution with over ten years of effective exercise, with due regard for the provisions of article 94;
II. the others, from among career judges of the Regional Labor Courts, nominated by the Superior Labor Court.
(1) The law makes provisions for the powers of the Superior Labor Court.
(2) The following operate in conjunction with the Superior Labor Court:
I. the National School for the Education and Further Development of Labor Judges, which has the duty, among others, to regulate the official courses for admission into and promotion in the career;
II. the Higher Council of Labor Justice, which, under the terms of the law, exercises administrative, budgetary, financial, and property supervision over Labor Courts of first and second instances, in the quality of central body of the system, whose decisions have a binding effect.
Article 112 [Regional Labor Court]
The law establishes Labor Courts of first instance, allowing, in districts not covered by their jurisdiction, for the attribution of such jurisdiction to judges, appeals being admissible to the respective Regional Labor Court.
The law regulates the constitution, installation, jurisdiction, powers, guarantees, and conditions of exercise of the bodies of Labor Justice.
(0) Labor Justice has the power to hear and try:
I. judicial actions arising from labor relations, comprising entities of public international law and of the direct and indirect public administration of the Union, the states, the Federal District, and the municipalities;
II. judicial actions involving the exercise of the right to strike;
III. judicial actions regarding union representation, when the opposing parties are trade unions, or trade unions and workers, or trade unions and employers;
IV. writs of mandamus, habeas corpus, and habeas data, when the action being challenged involves matter under the jurisdiction of Labor Justice;
V. conflicts of powers between bodies having jurisdiction over labor issues, except as provided under article 102 I o);
VI. judicial actions arising from labor relations which seek compensation for moral or property damages;
VII. judicial actions regarding administrative penalties imposed upon employers by the bodies charged with supervising labor relations;
VIII. ex-officio enforcement of the welfare contributions set forth in article 195 I a) and II, and their legal raises, arising from the judgments it pronounces;
IX. other disagreements arising from labor relations, under the terms of the law.
(1) If collective negotiations are unsuccessful, the parties may elect arbitrators.
(2) If any of the parties refuses collective negotiation or arbitration, they may file a collective labor suit of an economic nature, by mutual agreement, and Labor Courts may settle the conflict, respecting the minimum legal provisions for the protection of labor, as well as any provisions previously agreed upon.
(3) In the event of a strike in an essential activity which may possibly injure the public interest, the Labor Public Prosecution may file a collective labor suit, and it is incumbent upon Labor Courts to settle the conflict.
Article 115 [Composition of Regional Courts]
(0) The Regional Labor Courts are composed of a minimum of seven judges, selected, whenever possible, in the respective region and appointed by the President of the Republic from among Brazilians over thirty and under sixty-five years of age, as follows:
I. one-fifth is chosen from among lawyers effectively practicing their professional activity for more than ten years and from among members of the Labour Public Prosecution with over ten years of effective service, with due regard for the provisions of article 94;
II. the others, by means of promotion of labor judges for seniority and merit, alternately.
(1) The Regional Labor Courts installs an itinerant justice system, carrying out hearings and other functions typical of the operation of justice, within the territorial limits of the respective jurisdiction, and making use of public and community facilities.
(2) The Regional Labor Courts may operate in a decentralized mode, by creating regional Divisions, with a view to affording claimants full access to justice in all stages of the judicial action.
Article 116 [Conciliation and Judgment]
In the Labor Courts of first instance, jurisdiction is exercised by a single judge.
Article 117 [Term of Temporary Judges]
(0) The term of office of the temporary judges in all instances is three years.
(1) The temporary group judges have alternates.
Section VI Electoral Courts and Electoral Judges
Article 118 [Electoral Court Bodies]
The following are bodies of the Electoral Courts:
I. the Superior Electoral Court;
II. the Regional Electoral Courts;
III. the Electoral Boards.
(0) The Superior Electoral Courts is formed by at least seven members chosen:
I. through election, by secret ballot:
a) three judges among the Justices of the Federal Supreme Court;
b) two judges among the Justices of the Superior Court of Justice;
II. by appointment of the President of the Republic, two judges among six lawyers of notorious legal knowledge and good moral repute, indicated by the Federal Supreme Court.
(1) The Superior Electoral Court selects its Chief Justice and Deputy Chief Justice from the Justices of the Federal Supreme Court, and the Electoral Inspector General from the Justices of the Superior Court of Justice.
(0) There has to be a Regional Electoral Court in the Capital of each State and in the Federal District.
(1) The Regional Electoral Courts is formed:
I. through election, by secret ballot:
a) by two judges among the justices of the Court of Appeals;
b) by two judges, among court judges, chosen by the Court of Appeals;
II. by one judge of the Federal Regional Court with its seat in the Capital of the State or in the Federal District, or, in the absence thereof, by a federal judge chosen in any case by the respective Federal Regional Court;
III. by appointment by the President of the Republic of two judges among six lawyers or notorious legal knowledge and good moral repute, indicated by the Court of Appeals.
(2) The Regional Electoral Court elects its Chief Justice and Deputy Chief Justice among the justices.
Article 121 [Powers, functions, organization]
(0) A supplement law provides for the organization and jurisdiction of the electoral courts, judges and boards.
(1) The members of the courts, the judges and the members of the electoral boards, while in office and to the extent applicable to them, enjoy full guarantees and are irremovable.
(2) The judges of the electoral courts, save for a justified reason, serve for two years at least and never for more than two consecutive two year periods, and their substitutes are chosen at the same time and through the same procedure, in equal numbers for each category.
(3) The decisions of the Superior Electoral Court are unappealable, with the exception of those which contravene this Constitution and those denying habeas corpus or a writ of mandamus.
(4) Decisions of the Regional Electoral Courts may only be appealed when:
I. they are rendered against an express provision of this Constitution or of a law;
II. there is a divergence in the interpretation of a law among two or more electoral courts;
III. they deal with the ineligibility or issuance of certificates of election in federal or state elections;
IV. they annul certificates of election or decree loss of federal or state elective offices;
V. they deny habeas corpus, writs of mandamus, habeas data or writs of injunction.
Section VII Military Courts and Military Judges
The following are bodies of the Military Courts:
I. the Superior Military Court;
II. the Military Courts and Judges instituted by law.
Article 123 [Superior Military Court]
(0) The Superior Military Court is formed by fifteen life tenured Justices appointed by the President of the Republic after approval of their indication by the Federal Senate, three of which among admirals of the Navy, four among generals of the Army, three among generals of the Air Force, all of them in active service and in the highest rank of their career, and five among civilians.
(1) The civilian Justices are chosen by the President of the Republic among Brazilians over thirty-five years of age, of which:
I. three among lawyers of notorious legal knowledge and unblemished conduct, with over ten years of actual professional activity;
II. two, by equal choice, among military judges and members of the Military Attorney General’s Office.
(0) It is incumbent upon the Military Courts to process and adjudicate the military crimes defined by law.
(1) The law provides for the organization, operation, and jurisdiction of the Military Courts.
Section VIII Courts and Judges of the States
(0) The States organize their Courts, observing the principles established in this Constitution.
(1) The jurisdiction of the courts is defined in the Constitution of the State, and the law of judicial organization is the initiative of the Court of Appeals.
(2) It is incumbent upon the States to institute actions of unconstitutionality of state or municipal laws or normative acts in view of the State Constitution, and it is forbidden to ascribe standing to act to only one simple body.
(3) By proposal of the Court of Justice, a state law may create the State Military Justice, constituted, at first instance, by judges and by the Councils of Justice and, at second instance, by the Court of Justice itself, or by the Court of Military Justice in those states in which the military troops count more than twenty thousand members. (4) The State Military Justice has the competence to institute legal proceeding and trial of the military of the states for military crimes defined in law, as well as to hear and try judicial actions against military disciplinary measures, with due regard for the competence of the jury when the victim is a civilian, and the competent court decides upon the loss of post or rank of officers and of the grade of servicemen.
(5) The judges of the military justice system have the competence, in the quality of single-judge courts, to institute legal proceeding and trial of military crimes committed against civilians and to hear and try judicial actions against military disciplinary measures, and it is incumbent upon the Council of Justice, presided over by a judge, to institute legal proceeding and trial of other military crimes.
(6) The Court of Justice may operate in a decentralized mode, by creating regional Divisions, with a view to affording claimants full access to justice in all stages of the judicial action.
(7) The Court of Justice installs an itinerant justice system, carrying out hearings and other functions typical of the operation of justice, within the territorial limits of the respective jurisdiction, and making use of public and community facilities.
Article 126 [Rural Propriety Deputies]
(0) For the settlement of conflicts relating to land property, the Court of Justice proposes the creation of specialized single-judge courts, with exclusive competence for agrarian matters.
(1) Whenever required for efficient jurisdictional service, the judges go personally to the site of the conflict.
SOURCE: Constitution Brazil of 1988