UPDATE: DOING LEGAL RESEARCH IN BRAZIL

 

By Monaliza Da Silva

 

Monaliza da Silva graduated the Faculty of Law at the University of São Paulo (USP) in 2013. During school she received a scholarship from São Paulo Research Foundation (FAPESP) and she was an exchange student at Erasmus University Rotterdam School of Law.  Monaliza da Silva currently is an LL.M. candidate in Legal Theory at New York University (NYU) and a Master candidate in Political Science at the University of São Paulo (USP).

 

Published June 2015

(Originally published on February 2005 and updated by Edilenice Passos on July 2008)

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Table of Contents

1.       Introduction

2.       General Data about Brazil

3.       Brazilian Constitution And Constitutional Law

3.1.          Fundamental Rights

3.2.         Nationality and Political Rights

3.3.         Institution Structure: Federal Organization

3.4.         Institutional Structure: Separation Of Powers

3.4.1.      The Legislative

3.4.1.1.        Primary Sources Of Law

3.4.1.2.       Legislative Process

3.4.1.3.       Constitutional Amendments

3.4.2.           The Executive and Public Administration

3.4.3.           The Judiciary

3.4.3.1.       Essential Institutions to Justice

4.       Sources of Law, Legal Interpretation and Main Statutes and Codes

4.1.          Civil Law and Civil Procedure

4.2.         Commercial Code and Law of Corporations

4.3.         Criminal Law and Criminal Procedure

4.4.         Labor Law

4.5.         Tax Law

4.6.         Electoral Law

4.7.         Other Codes

5.       Appendix

5.1.          National Press and Official Publication

5.2.         Law Education

6.       Glossary

 

1.      Introduction

The purpose of this article is to provide information about Brazil, especially for those who intend to conduct legal research about the country or to understand the core features of Brazilian law. My starting point was Edilenice Passos’s article, published in 2008. There are substantial modifications, however. The essay provides the main guidelines about the Brazilian legal structure and legal practice both in public and private law, giving emphasis on the sources, and principles of these legal fields as the national legal community sees them.

 

The first problem one who wants to have legal information about Brazil faces is the language. Although statutes and legislation are easily accessible on the webpage of governmental institutions, there are few of them in English. Usually the pages have only the main pages in English or no English versions at all. The main official government institution’s pages in the national level where legislation can be found are:

 

·       Presidency of Republic

·       Federal Senate

·       Chamber of Deputies

·       Brazilian Supreme Court

Furthermore, it is necessary to bear in mind that Brazil belongs to the civil law tradition therefore the main sources of legal rules are on positive law and some fields of law are mainly regulated by codes. Notions about legal interpretation and how to solve apparent (or real) conflicts of law and how to fulfill eventual gaps is essential to know which norm is in force.

 

Although there is no adoption of stare decisis, some judicial decisions may be biding to other institutions, having extra partes effects – for instance due to Súmulas or constitutional provisions. The Brazilian Constitution of 1988 settles large part of the institutional structure of the legal and political systems hence several references are going to be made to this document. The text in English can accessed in the Brazilian Supreme Court website , although some Constitutional Amendments were not included.

 

2.      General Data about Brazil

 

·        National Capital: Brasília (DF)

·        Population: 202,768,562 [1]

·        National Language: Portuguese

·        Form of State: Federation

·        Form of Government: Democratic Republic

·        System of Government: Presidential system

 

Brazil is a federative republic, composed by 26 federal states, the Federal District (DF) of Brasília and the Federal Union, and has representatives chosen in periodical elections for limited term. It is a Presidential system of government, being the President the head of State and of Government.

 

The requirements to exercise political rights, both to vote and to be voted, are established in the Constitution. [2] The vote is mandatory for everyone older than 18 years but optional for illiterates, individuals that are over 70 and those between 16 and 18 years old. To be elected for a representative function, it is necessary to have Brazilian nationality, to be literate, in full exercise of political rights, enrolled in the elector’s list ( alistamento eleitoral ), to reside in the same district, and to be affiliated to a political party. For certain positions it is also required minimum age, being of 35 for president, vice-president and senator; 30 for governor and vice-governor of a member state or the Federal District (DF); 25 for mayor, vice-mayor, federal and state representative; and 18 for municipal representative ( vereador ). In addition, to become president it is also required Brazilian birth nationality. Subsequent reelection is allowed only once for president, governor and mayors and without limitations for the other electoral offices. Ineligibility requirements may be imposed by law and, currently, the Complementary Statute ( Lei Complementar – from now on LC) 64/1990, modified by the LC 135/2010, [3] sets the list of ineligibility hypothesis.

 

The presidential term is four years [4] and the vice-president replaces him on temporary basis in case the president is unable to exercise his functions for limited time, or succeeds him in case of permanent vacancy. Both the president and the vice-president cannot stay out of the country for more than 15 days without the authorization of the Congress, running the risk to be removed from their positions. [5] If the vice-president cannot take office in case of temporary vacancy, the president of the Chamber of Deputies, of the Senate and of the Federal Supreme Court (STF), in this order, shall assume the presidency. [6]    

 

In case of permanent vacancy of both the president and vice-president, elections shall take place. If the vacancies occurred in first two years of the mandate, the new president shall be elected by direct voting 90 days after the last event. On the other hand, if it happened in the last two years, the Congress, by indirect voting, shall decide within 30 days. In both cases, the new president stays in office only until the end of the mandate. [7]

 

3.      Brazilian Constitution [8] and Constitutional Law

 

Brazil has had in total seven constitutions. The first was imposed in March 25, 1984, by the Emperor Don Pedro I, after the independency from Portugal in 1822; the second constitutional text was from February 24, 1891 and proclaimed the Republican government; In July 16, 1934, the third Constitution was enacted in response to the Constitutionalist Revolution of 1932; the fourth text was enacted in November 10, 1937 by Getúlio Vargas, who implemented a populist and authoritarian government referred to as the New State ( Estado Novo ); in September 18, 1946, with the decline of New State, the fifth constitution established a democracy and lasted until the 1964 coup d’état that initiated the military dictatorship period; in January 24, 1967 the Constitution of the authoritarian regime was enacted; [9] and lastly, with the end of the military government, the current constitution of October 5, 1988 was enacted.

 

The current text, popularly known as Constituição Cidadã (Citizen Constitution) is characterized by the list of fundamental and social rights, and for the details it has about social, economical and political aspects of the new regime. The Constitution is composed by the original text, amendments and the Transitional Constitutional Provisions Act ( Ato de Disposições Constitucionais Transitórias – ADCT). The main text is divided in Titles, Chapters, Sections and Subsections:

 

Title I: Fundamental Principles

 

Title II: Fundamental Rights and Guarantees

  • Chapter I: Individual and Collective Rights and Duties
  • Chapter II: Social Rights
  • Chapter III: Nationality
  • Chapter IV: Political Rights
  • Chapter V: Political Parties

 

Title III: The Organization of the State

  • Chapter I: Political and Administrative Organization
  • Chapter II: The Union
  • Chapter III: The Federated States
  • Chapter IV: The Municipalities
  • Chapter V: The Federal District and Territories
      • Section I: The Federal District
      • Section II: Territories
  • Chapter VI: Federal Intervention
  • Chapter VII: Public Administration
      • Section I: General Provisions
      • Section II: Government Employees
      • Section III: The Military of the States, of the Federal District and Territories
      • Section IV: The Regions

 

Title IV: The Organization of Powers

  • Chapter I: The Legislative Power
      • Section I: The National Congress
      • Section II: Powers of National Congress
      • Section III: The Chamber of Deputies
      • Section IV: The Federal Senate
      • Section V: Deputies and Senators
      • Section VI: The Sessions
      • Section VII: The Committees
      • Section VIII: The Legislative Process
        • Subsection I: General Provisions
        • Subsection II: Amendments to the Constitution
        • Subsection III: The Legislation
      • Section IX: Accounting, Financial and Budgetary Control
  • Chapter II: The Executive Power
      • Section I: The President and Vice-President of the Republic
      • Section II: Duties of the President
      • Section III: Liability of the President
      • Section IV: The Minister of the State
      • Section V: The Republic Council and the National Defense Council
        • Subsection I: The Republic Council
        • Subsection II: The National Defense Council
  • Chapter III: The Judicial Power
      • Section I: General Provisions
      • Section II: The Supreme Federal Court
      • Section III: The Superior Court of Justice
      • Section IV: The Federal Regional Courts and Federal Judges
      • Section V: Labor Courts and Judges
      • Section VI: Electoral Courts and Judges
      • Section VII: Military Courts and Judges
      • Section VIII: Courts and Judges of the States
  • Chapter IV: The Essential Functions to Justice
      • Section I: The Public Prosecutor
      • Section II: The Public Advocacy
      • Section III: The Legal Profession and the Public Legal Defense

 

Title V: The Defense of the State and Democratic Institutions

  • Chapter I: The State of Defense and State of Siege

§   Section I: The State of Defense

§   Section II: The State of Siege

§   Section III: General Provisions

  • Chapter II: Armed Forces
  • Chapter III: Public Security

 

Title VI: Taxation and Budget

  • Chapter I: The National Tax System
      • Section I: General Principles
      • Section II: Limitations of the Power to Tax
      • Section III: Federal Taxes
      • Section IV: State and Federal District Taxes
      • Section V: Municipal Taxes
      • Section VI: Tax Revenue Sharing
  • Chapter II: Public Finance
      • Section I: General Provisions
      • Section I: Budgets

 

Title VII: The Economic and Financial Order

  • Chapter I: General Principles of Economic Activity
  • Chapter II: Urban Policy
  • Chapter III: Agricultural and Land Policy, and Agrarian Reform
  • Chapter IV: The National Financial System

 

Title VIII: The Social Order

  • Chapter I: General Provisions
  • Chapter II: Social Welfare
      • Section I: General Provisions
      • Section II: Health
      • Section III: Social Security
      • Section IV: Social Assistance
  • Chapter III: Education, Culture and Sports
      • Section I: Education
      • Section II: Culture
      • Section III: Sports
  • Chapter IV: Science and Technology
  • Chapter V: Social Communication
  • Chapter VI: Environment
  • Chapter VII: Family, Children, Adolescents and the Elderly
  • Chapter VIII: Indians

 

Title IX: General Constitutional Provisions

 

3.1.   Fundamental Rights

The CF/88 has a long list of protected rights and guarantees, including other non-explicit rights that follow from the constitutional regime and principles, or international treaties that Brazil takes part. [10] According to the constitutional text, fundamental rights have immediate application. [11]

 

The Article 5 establishes the main list of individual rights and its head proclaims the equality before the law and the inviolability of the right to life, personal security and property. Among other rights, this Article protects gender equality; the legality principle – no coercion without law –; prohibition of torture; prohibition of censorship and freedom of expression, of thought, and of religion; privacy; freedom to choose professional occupation; right to access of information; right of assembly and association; the right to property, but limited with regard to its social function; the right to intellectual property; the right to inheritance; costumer rights; right of petition to public authorities to protect rights and to issue public documents; right to judicial assistance; the right to a jury and due process; prohibition of retroactive law on criminal realm; prohibition of racism, which is considered a non bailable crime; prohibition of militia and armed groups against the state; prisoner rights; prohibition on extradition of foreigners due to political crimes or Brazilian nationals in any circumstance; prohibition on use of illegal evidence; right to presumption of innocence; publicity of judicial acts; right to habeas corpus ; right to injunction against public authorities in case of violation of fundamental rights ( Mandado de Segurança ); right to habeas data – injunction to have access to information; right to collective petition ( Ação Popular ) to protect public property and the environment; free judicial assistance for people without financial resources; and the right to judicial and administrative processes with reasonable short time duration.

 

The fundamental rights of Article 5 have immediate application and do not exclude other possible rights that follow from the constitution. International human rights treaties may be incorporated having the same status as constitutional law if, after it is sanctioned, the Congress approves the treat in a similar procedure as the enactment of constitutional amendment. However, if the treat does not pass through this process, it acquires status of superior norm when compared to ordinary legislation, but is under the constitution. [12] In addition, the §4 of Article 5 determines that Brazil is under the jurisdiction of the International Criminal Court.    

 

The Constitution also establishes social rights. The Article 6 expresses rights that may be exercised by a collectivity – the rights to education, health, alimentation, work, leisure, social security, social-welfare, maternity, infancy and social assistance. The Article 7 though 11, on their turns, establish labor rights regarding the employment relation such as minimum wages, working conditions, retirement plan and welfare guarantees.            

 

3.2.   Nationality and Political Rights

The Brazilian nationality is acquired either by birth or naturalization. There can be no distinction between these categories and only the Constitution can establish exceptions. [13]

 

Regarding the first type, i.e. nationality acquired by birth, the system adopts both the ius solis and the ius sanguinis criteria . A native Brazilian may be someone:

 

(i)    who was born in Brazilian territory, even if his or her parents are foreigners; [14]

(ii) who was born abroad but at least one of his or her parents is Brazilian in service of the Brazilian government; or

(iii)         who was born abroad and his or her parents, being at least one of them Brazilian, were not in official service of the Brazilian Government, situation in which it is necessary either to be register in a Brazilian public office with competence to recognize the birth or that the individual resides in Brazil and opt, at any time after becoming 18 years old, for the Brazilian nationality.

 

The first case is ius soli and the last two, ius sanguinis. [15]

 

It is also possible to become Brazilian by naturalization. It is required that either (i) the individual is from a Portuguese speaking country and had resided in Brazil for at least one year and who can prove moral integrity; or (ii) that he or she is a foreigner of any nationality who resides in Brazilian territory for more than 15 uninterrupted years, who does not have any criminal conviction and who decides to apply for Brazilian nationality. [16]

 

Portuguese individuals who permanently reside in Brazil have the same inherent rights as Brazilians, except when the Constitution establishes distinctions and since there is reciprocity by Portugal regarding Brazilians. [17] Currently, this reciprocity is settled by the Tratado de Amizade, Cooperação e Consulta (Treaty of Friendship, Cooperation and Consult), signed by both countries in 2000. [18]

 

The loss of Brazilian nationality shall be declared in case of conviction on activities that are against the national interest, of acquire of a new nationality except (i) when the native nationality is recognized by the foreign law, or (ii) when foreign nationality is imposed as a condition to stay or exercise civil rights in this foreign country. [19]             

 

The political positions that can only be exercised by native Brazilians are of (i) president and vice-president of the Republic; (ii) president of the Chamber of Deputies; (iii) president of the Senate; (iv) member of the Supreme Court (STF); (v) diplomat; (vi) army official; and (vii) defense minister. [20] In addition to the right to vote, Brazilian citizens can exercise the popular sovereignty through plebiscite, referendum and popular initiative of legislation.

 

According to the Constitution and the Political Parties Act (Lei 9.096/1995), the creation of political parties is free although some conditions must be satisfied. On the constitutional level, parties must respect the national sovereignty, democratic regime, multiparty system, respect of fundamental rights and shall be of national coverage, do not receive financial resources from foreign institutions and respect parliamentary and electoral laws. All specific requirements and rules applicable for the creation and regulation of parties, including norms on membership and campaign finance are on the Political Parties Act.

 

3.3.   Institution Structure: Federal Organization

States, the Federal District and municipalities compose the Brazilian Federation. The Constitution allows the creation of territories but currently there is none. Each member state can have its own constitution, [21] being only relatively autonomous, though. The member states’ competences are those that are not forbidden by the National Constitution and it shall respect the principles of the national constitutional regime. [22] The municipalities, on their turn, are organized by organic statutes, which must respect and be limited also by the national Constitution.

 

The competences – political, administrative and legislative – of each sphere are established in the Constitution. Some competences are exclusive; others are shared (denominated as concurrent competence) or common among the member. The competences are exclusive when only a certain member of the federation has monopoly of action or legislation over the particular subject. For instance, only the Union has power to engage in foreign relations or declare war, and to legislate over civil, commercial, criminal and procedure law. On the other hand, the competence may be shared or concurrent between the Union, the states and the Federal District when the Union is in charge of establishing general norms and the others, particular rules. As an example, tax, financial and economic law can be settled in the general level by the Union whereas the states and the Federal District legislate the particularities of how the tax or the policy shall be applied. When the Union does not establish general norms, the state has the power to determine them; however, if the Union creates specific norms, it is an unconstitutional invasion of competence. The concept of “general rules” is not defined in the Constitution, causing large disagreement among scholars and the legal profession. Lastly, the competence may be common among all the members of the federation when all of them can promote initiatives to satisfy certain goal. For instance, all members shall protect the Constitution and democratic institutions; protect the environment; are responsible for public health, and protection of people with disabilities; promote culture, access to information and science. It is important to emphasize that the competences of the states are determined residually – i.e., the states shall act and legislate in subjects that are not prohibited or delegated exclusively to another federal member.

 

In the Constitution the competences settled in these dispositions:

 

Exclusive Executive competence of the Union

Article 21

Exclusive Legislative competences of the Union

Article 22

Common competences of the Union, states, Federal District and Municipalities

Article 23

Concurrent or shared Legislative competences of the Union, states and Federal District

Article 24

Residual competences of the states

Article 25, §1

Competences of the municipalities

Article 30

   

The Union has ownership among other things of the lands essential to secure the borders; lakes, rivers and waters crossing more than one state; the resources of the continental platform and territorial waters; mineral resources; and lands traditionally occupied by Indians. The executive competences of the Union comprehends among other the relations with foreign states; the powers to declare war and peace, state of siege, and federal intervention; the power to issue currency and administrate financial reserves; to secure the postal service; explore directly or indirectly and regulate telecommunications, energy, structure of ports, air and aero spatial navigation; organize the police; and the guarantee of public service.        

 

3.4.   Institutional Structure: Separation of Powers

The separation of powers in Brazil is structured in three branches: the Legislative, the Executive and Judiciary. [23]

 

3.4.1.     The Legislative

At the Federal level, the Legislative Powers is exercised by the National Congress, a bicameral organ composed by the Chamber of Deputies ( Câmara dos Deputados ) and the Senate ( Senate ); [24] at the member states, by the Legislative Assemblies ( Assembleias Legislativas ); at the Federal District, by the Legislative Chamber ( Câmara Legislativa ); and at the municipalities, by the Municipal Chambers ( Câmaras Municipais ).

 

In Congress, the Chamber of Deputies is composed by people’s representatives, proportionally elected in each state and the Federal District. [25] The Senate, on the other hand, represents the states and its members are selected by majority vote within the state as well and each federal unity has three senators, elected for eight years. The Senate is renewed alternatively in one and two thirds in each four years. [26] The number of deputies is proportional to each state’s population although it must be at least eight and max 70. [27] To be the President of the Congress or of the Senate it is required Brazilian birth nationality and the term in office is two years, not being allowed reelection in the same legislative term. The President of the Senate is, at the same time, the President of the National Congress.

 

The Congress has the power to deliberate and, with the sanction of the President, to enact statutes that are on the Union’s competences sphere; [28] the Chamber of Deputies, on its turn, has private competence to begin processes against the President, Vice-President and State Ministers; [29] and, lastly, the Senate has, among other things, private competence to process and judge the President, Vice-President, State Ministers, and Military Commanders for crimes of responsibility, [30] and to judge the members of the Brazilian Supreme Court and other authorities related to justice also for crimes of responsibility. [31] In addition, the competence to control the Administration, at the national sphere, belongs to the National Congress, which exercises this duty with the support of the Federal Court of Accounts ( Tribunal de Contas da União – TCU ).

 

3.4.1.1.                  Primary Sources of Law

The primary sources of law, i.e. those established by the Constitution, are (i) the Constitution and its amendments; (ii) complementary acts ( Leis Complementares – LC); (iii) ordinary legislative acts and statutes ( Leis Ordinárias – LO); (iv) delegated acts; (v) provisional measures ( Medidas Provisórias – MP); (vi) legislative decrees; (vii) resolutions. [32] The most important sources of law are the Constitution, complementary and ordinary acts and statues, and provisional measures.

 

Complementary (LC) and ordinary (LO) acts and statues differ in their content and legislative process requirements. The complementary acts regard particular subjects expressly established by the Constitution and requires absolute majority of each House of the Congress to be approved. [33] The ordinary acts, on the other hand, concern other subjects of law and require only simple majority for approval.

 

Provisional Measures (MP) consist in Executive acts biding as law, issued by the President, in case of urgent and relevant matters. These measures shall be sent to the Congress, who may adopt it as a legislative act, dismiss it or let it lose efficacy within 60 days extendable once for more 60 days by the President. [34]

 

The Congress may attribute some of its legislative competences for the President to issue delegated acts. [35] However, after the creation of MPs in 2001, this kind of act lost its relevance.

 

Legislative decrees are the means by which the Congress exercises its internal executive and administrative functions. It does not require presidential sanctioning and shall be decided by simple majority. Resolutions, on its turn, are related to private competences of the National Congress or the internal competences of State institutions such as the Supreme Court (STF) and the Superior Electoral Court (TSE).

 

3.4.1.2.                  Legislative Process [36]

The legislative process that takes place on Congress is, basically composed by initiative, debates, voting, approval by the Congress, sanction or veto by the President, [37] enactment and, finally, publication.  

 

The process begins with the initiative, i.e. with a bill of law that shall be analyzed first by one of the Congress Houses, depending on where this bill is proposed, and then revised by the other. Within the originating House, the bill passes through technical, formal and material scrutiny in legislative commissions. If it is approved by them, it is forwarded to the plenary for discussion and voting. After the voting process within this first House, it is either rejected if dismissed, or forwarded to the reviewing House if approved.

 

The reviewing House shall discuss and deliberate about the bill. When it is approved, it is sent to the President to sanction; however, if it is rejected or amended by this House, it returns to the originating House, which must decide whether to adopt the changes or not, and then, finally, sent to the President. The President may dismiss part or the whole bill for being unconstitutional or against public interest, expressly approve it or, implicitly sanction when there is no manifestation by him or her after 15 days of receiving the proposal. [38] The Congress may surpass the veto by the absolute majority of the senators and deputies within 30 days of receiving it. If the veto is overridden, the President shall promulgate the act. [39]  

 

Bills proposed by the Chamber of Deputies or its members, the President, the Supreme Court, the higher courts, the General Attorney ( Procurador-Geral da União ) and citizens (when they have initiative power) must be initiated in the Chamber of Deputies and revised by the Senate. [40] On the other hand, the bills initiated by the Senate and its members and member state legislatures shall be initiated in the Senate and revised by the Chamber of Deputies.

 

After being promulgated and published, the regular vacatio legis is 45 days, i.e., usually the act enters into force in 45 days. [41] Nevertheless, the act itself may establish another term. 

 

At the member states and municipal levels, the legislative process follows the same principles, i.e. has the same phases, respecting the particularities of each sphere. The rules on this regard are settled on the state’s constitutions or in the organic statutes.

 

3.4.1.3.                  Constitutional Amendments

The first step on constitutional amendment procedure is the initiative. A Constitutional amendments can be only proposed by (i) one third of the member of the Chamber of Deputies or the Senate, (ii) the President, or (iii) more than half of the member states’ legislatives bodies, which shall be represented by the relative majority of their members. [42]

 

After the bill is proposed, it shall be addressed for the house that started the initiative, where it will be discussed and voted. If it is eventually approved by three fifths of the members of this chamber the bill is sent to the other house in which the same process of deliberation and voting takes place. If also approved by qualified majority of three fifths, the bill is addressed once again to the first chamber and the procedure must be repeated. In other words, the bill must be approved in each chamber by qualified majority twice in order to become a Constitutional Amendment. [43] At the end of this process, it is not required presidential sanctioning.  

 

The Brazilian Constitution has not only formal or procedural limitations, but also temporal and material amendment restrictions. The Constitution cannot be amended during federal intervention, state of defense or state of siege (time-related constrains) [44] and the amendment proposals cannot tend to abolish the Federation, the secret, universal and periodic vote; the separation of powers; and the fundamental rights (material constrains). [45]

 

3.4.2.     The Executive and Public Administration

The head of Executive Power in the national level is the President, who is aided by the State Ministers. The President is also the head of State and of the Military Forces. [46] Both the President and the Vice-President are elected by majority vote for a 4 years term and consecutive reelection is allowed only once. The governor is the head of government in the states and in the Federal District of Brasília, and the mayor, of the municipalities.

 

The President has, among other things, the exclusive power to select the State Ministers, to exercise the federal administration, to initiate the legislative process regarding some matters, to sanction or veto federal legislative acts, to issue decrees, to promote relationships with foreign states, to sign international treaties which shall be submitted to Congress, to decree state of siege, to grant pardon, to appoint the members of the Supreme and the Higher Courts and to declare war and celebrate peace. [47]

 

The Constitution establishes as crimes of malversation acts of the President that go against the existence of the Union; the exercise of the Legislative and the Judicial Power, or the constitutional power of the members of the Federation; the exercise of political, individual or social rights; the internal security; probity of administration; budgetary norms; or compliance with the law or courts’ decisions. If a two-thirds majority of the Chamber of Deputies decides to proceed with the accusation against the President, in case of ordinary criminal violations, the Supreme Court is in charge of the judgment; in case of crimes of malversation, the Senate has this responsibility. According to the Lei 1079/50, the practice of these crimes – or the mere attempt – leads to Impeachment – i.e. the loss of the position. This act is applicable not only to the President, but also to State Ministers, judges of the Supreme Court or the General Attorney. [48]

 

3.4.3.     The Judiciary

 

The CF/88 establishes that the Judiciary is composed by:

(i)             the Brazilian Federal Supreme Court ( Supremo Tribunal Federal – STF);

(ii)           the National Justice Council ( Conselho Nacional de Justiça – CNJ);

(iii)         regional federal courts and federal judges;

(iv)          labor courts and labor judges;

(v)            electoral courts and electoral judges;

(vi)          military courts and military judges; and

(vii)        courts and judges of the states, Federal District, and territories. [49]

 

The Supreme Court has exclusive power to propose legislation regarding the judicial organization, safeguarding constitutional rules about the entering and the progress on the career. [50] The Judiciary enjoys administrative and financial autonomy [51] and, in addition, it is guaranteed to judges: tenure until compulsory retirement, irremovability and irreducibility of earnings. Nevertheless, they are not allowed to exercise another function or position, receive compensations for their participation in lawsuits, exercise partisan activities, practice law in the court she belong after three years of removal. [52]

 

The jurisdictions of the STF, the superior courts and the National Council of Justice ( Conselho Nacional de Justiça – CNJ) are extended over the entire Brazilian territory, whereas the other judicial bodies have territorial limitations. The specific competences and jurisdiction of the other courts and judges are settled in the Constitution or in statutes.

 

Composition and Jurisdiction of the Courts:

 

Judicial Institution

Composition

Jurisdiction

Brazilian Federal Supreme Court ( Supremo Tribunal Federal - STF)

The Court is composed by eleven Judges, chosen by the President and ratified by the majority of the Senate. It is necessary to be at least 35 and maximum 65 years old, and to have remarkable legal knowledge and spotless reputation. [53]

Article 102, CF/88: Jurisdiction over the entire Brazilian Territory. The main original jurisdiction of the Court is over direct and abstract judicial review; in ordinary criminal cases, over the President, Vice-President, members of the Congress, the STF judges themselves, and the General Attorney; in ordinary criminal cases and crimes of malversation, the Ministers of the State, the Commanders of Marine, Army and Air Force, the members of Superior Courts, the members of the Federal Court of Accounts (TCU) and the leaders of diplomatic missions; over habeas corpus regarding any of the previously mentioned authorities or habeas corpus, Injunction ( Mandado de Segurança ) or habeas data against acts of the President, the chairs of the Chamber of Deputies and the Senate, the TCU, the General Attorney or the STF itself; conflicts between foreign States or international institutions and the Union, states, Federal District or territory; conflicts among the members of the Federation; over extradition request by foreign State; over habeas corpus when the co-author is a superior court or the plaintiff is an employee directly subjected to the jurisdiction of the STF, or a crime with one judgment instance; over criminal revision of the cases previously judged by the STF; over petition to guarantee the applicability of the STF’s decisions; over cases in which all the members of the Judiciary have direct or indirect interest; and over jurisdiction conflicts between Superior and other courts. The ordinary appeal jurisdiction is over habeas corpus , writ of mandamus, injunction, habeas data , writ of injunction decided in single instance by the superior courts when the remedy is denied; and political crimes. The appellate extraordinary jurisdiction regards judicial decisions taken in single or last instance which is against the Constitution; declares the unconstitutionality of treaty or federal statute; upholds the constitutionality of state or local act contested on constitutional grounds; or upholds local legislation against federal law.

Superior Court of Justice ( Superior Tribunal de Justiça – STJ)

The Court is composed by at least 33 judges who are chosen by the President and ratified by the majority of the Senate. It is necessary to be at least 35 and maximum 65 years old, and to have remarkable legal knowledge and spotless reputation. [54] One-third of the judges must be from the regional federal courts, one-third from the state courts of justice. These courts address to the President a list with three candidates and the President chooses one. The other one-third of the members must be chosen among lawyers or members of the Federal, District or State Public Prosecution.

Article 105, CF/88: The Court has original jurisdiction mainly over ordinary criminal cases against the Governors; over ordinary and malversation criminal cases against the judges of the state courts of justice, the member of the state courts of accounts, the judges of the regional federal courts, the judges of the regional electoral courts and regional labor courts, members of local account courts and the members of the Federal Public Prosecutor Office; writ of mandamus and habeas data against acts of ministers of state, commanders of the Marine, Army or Air For, or the STJ itself; over habeas corpus when the co-author is a court under STJ jurisdiction, minister of state or commander of the Marine, Army or Air Force; over conflict of jurisdiction other than those on STF jurisdiction (mentioned above). The STJ has ordinary appeal jurisdiction over habeas corpus and writ of mandamus decided in last or single resort by the federal regional courts or state courts when the remedy is denied; over cases in between foreign state or international institution against a municipality or individual living in Brazil. The Court has especial jurisdiction over cases decided in single or last resort by the regional federal courts, state courts when the decision is against treaty or federal law; upholds state statute against federal law; or gives different meaning to federal law when compared to other courts.

Federal Regional Courts ( Tribunal Regional Federal – TRF)

The Federal Regional Courts are composed by at least seven judges, usually from the region of the court, chosen by the President, and with at least 30 years and not more than 65. One-fifth of the court must be lawyers or members of the Federal Public Prosecution with at least ten years of practice. The other members are judges from lower federal courts, after at least five years of career based on seniority or merit, alternatively. [55]

Article 108, CF/88: The Court has original jurisdiction especially over ordinary and malversation criminal cases against federal judges on their area of jurisdiction; writ of mandamus and habeas corpus against acts of the TRF or lower federal judges; habeas corpus against decisions lower federal judges; conflict of jurisdiction among judges under the jurisdiction of the TRF. The Court has appellate jurisdiction decisions taken by lower federal judges or state judges exercising federal jurisdiction.

Federal Judges

The position of federal judge depends on being selected by public examination ( concurso público ). It is necessary to have at least three years of legal practice. [56]

Article 109, CF/88: the federal judges have jurisdiction over cases regarding the Union, federal agencies or public companies, except labor and bankruptcy situation or when there is jurisdiction of electoral or labor courts; over cases regarding international treaties; over political or ordinary crimes against public property or public service of the Union, federal agencies or public companies, except cases in which electoral or military courts have jurisdiction; over criminal cases established in international treaty in which the act started in Brazil but was completed in foreign state or vice-versa ; over cases involving  serious violations of human rights; over crimes against the labor organization and, when established by legislation, against the financial and economic orders; over habeas corpus not subjected to other jurisdiction; over writ of mandamus and habeas data against federal authority; over crimes that took place in ships and aircrafts, except when military courts have jurisdiction; over crimes of foreigner with irregular situation in Brazil; and over indigenous rights disputes.

Superior Labor Court ( Tribunal Superior do Trabalho – TST)

The Court is composed by at least 27 judges who are chosen by the President and ratified by the majority of the Senate. It is necessary to be at least 35 and maximum 65 years old. [57] One-fifth of the court must be lawyers or members of the Labor Public Prosecution with at least ten years of practice. The other members are judges from lower labor courts.

Article 111-A, §1, CF/88: The jurisdiction of the TST is established at Article 896 of the Consolidation of Labor Law ( Consolidação das Leis do Trabalho – CLT, Dec.-Lei 5452/1943).

Regional Labor Courts ( Tribunal Regional do Trabalho – TRT) and Labor Judges

The position of labor judge depends on being selected by public examination ( concurso público ). It is necessary to have at least three years of legal practice. [58] The Regional Labor Courts are composed by at least seven judges, usually from the region of the court, appointed by the President, and with at least 30 years and not more than 65. One-fifth of the court must be of lawyers or members of the Labor Public Prosecution with at least ten years of practice. The other members are judges from lower labor courts based on seniority or merit, alternatively. [59]

Article 114The TRT are appellate courts of decisions of labor judges. The substantive jurisdiction is thus related to the jurisdiction of labor judges. The jurisdiction of labor justice is over causes related to labor relationship; over causes regarding the right to strike; over causes regarding trade-union representation; writ of mandamus, habeas corpus and habeas data when the problem regards matters under the jurisdiction of labor justice; conflict of jurisdiction among labor courts; over injuries – patrimonial or moral – caused by accident at work; over causes in which the employer was sanctioned by the public labor supervision authorities; and enforcement of welfare contributions.

Superior Electoral Court ( Tribunal Superior Eleitoral – TSE)

The Court is composed by at least seven judges, being three from the STF and two of the STJ, selected through vote within these two courts; and two appointed by the President among six lawyers selected by the STF with remarkable legal knowledge and spotless reputation. [60]

Article 121, CF/88: The competences of electoral justice are settled at LO 4737/65 ( Código Eleitoral – CE).

Regional Electoral Courts ( Tribunal Regional Eleitoral – TRE), Electoral Boards ( Junta Eleitoral ) and electoral judges

The TREs are established in the capital of every state and in the Federal District. The Court is composed by two judges from a state court and two first-instance state judges selected by the state court – these judges are elected among their peers; one judge from a TRF when there is a TRF in the capital of the state, or a federal judge chosen by the TRF that has jurisdiction on the particular state; and two judges are appointed by the President who shall choose from a list submitted by the state court. The judges must serve for two years at least and are not allowed to exercise this function for more than two consecutive biennia. [61]

Article 121, CF/88: The competences of electoral justice are settled at LO 4737/65 ( Código Eleitoral – CE).

Superior Military Court ( Superior Tribunal Militar – STM), Military Courts and Military judges

The STM is composed by 15 judges with life tenure, appointed by the President and ratified by the Senate. Among them, three must be general officials from the Marine, four general officials from the Army, and three general officials from the Air Force. All these general officials must be active and in their respective highest position. The other five shall be civilians appointed by the President. Among the civilians, three must be lawyers with remarkable legal knowledge and spotless reputation, and two by equal choice that were either auditor judges or members of the Military Public Prosecution.  [62]

Article 124, CF/88: The military justice has jurisdiction over military crimes defined as such by law and other further competences are also settled by legislation.

State Court ( Tribunal de Justiça – TJ) and State Judges ( Juiz de Direito )

The organization and composition of the state courts are decided by state legislation, respecting the rules established in the Constitution. [63] The TJs may work in a decentralized manner, though regional chambers. [64]

Article 125­, §1: The jurisdiction of state court is established in each state constitution. In addition, the state court can establish if necessary military state courts (Article 125, §3) and specialized chambers to decide land and agrarian matters (Article 126).

 

The judicial system also has special courts – Juizados Especiais –, which deal with less complex cases, involving low value causes or criminal offenses with low potential social impact. The Constitution mentions these courts on Article 98, I and the specific regulation about the composition, jurisdiction and procedure is settled by Lei 9099/95. The procedures of these courts are based on simplicity, prioritizing oral arguments, informal procedures, conciliation and celerity.

 

3.4.3.1.                  Essential Institutions to Justice

In addition to the courts, another institutions play an important role in the administration of justice. [65] The Constitution lists three: The Office of Public Prosecution, The Advocacy-General of the Union and, the Advocacy and Public Legal Defense.

 

The Office of Public Prosecution ( Ministério Público – MP), a permanent institution, has the purpose of defending the legal order, democratic regime social interests and individual rights that cannot be disposed. The MP is remarked by its unity, indivisibility and functional independence. There are the Union MP – which is composed by Federal MP (MPF), Labor MP, Military MP, and Federal District MP – and the MPs of the state. The chief of the MPF is the General-Attorney of the Republic. The functions of the MP are established in Article 129 of the Constitution. Among them, the main functions are to promote public criminal charges, ensure respect to the Powers of the State, to institute civil investigation to protect public and social property, the environment and other diffuse interests, to defend the rights of indigenous population, to exercise control over police activities.

 

The second institution is the Public Advocacy. The Advocacy-General of the Union ( Advocacia Geral da União – AGU) represents the Union judicially or extra-judicially and is responsible for activities of judicial consultation and assistance to the Executive Power. The head of the AGU is the Advocate-General of the Union ( Advogado Geral da União ).

 

Lastly, Advocacy and the Public Legal Defense ( Defensoria Pública ) are together the third institution. Lawyers are essential to the administration of justice because of the role they play in acting towards the Judiciary. They are inviolable for their acts in the exercise of the legal profession, limited only by the law. The Public Defense is responsible for providing judicial guidance and defense of needy people. The regulation and organization of the Public Legal Defense are established in the LC 80/94.  

 

4.      Sources of Law, Legal Interpretation and Main Statutes and Codes

The Brazilian legal system is strongly influenced by the civil law tradition. Therefore, positive legislation is the main source of law and several legal fields are regulated by codes, compilations of legislation, statues and normative acts.

 

The Statute of Introduction to Brazilian Law ( Lei de Introdução às Normas do Direito Brasileiro , Dec.-Lei 4657/42), previously known as Statute of Introduction to Brazilian Civil Law, provides the main guidelines about validity, application and interpretation of Brazilian law.

 

The standard period of vacatio legis – i.e., the period between enactment and enforcement - is forty-five days. The statute may determine another point in time for the beginning of enforcement though. [66]

 

If the statute is not provisory, it remains in force until another one modifies or revokes it. The posterior norm revokes the previous one when it expressly declares it, is incompatible or regulates the same subject. In general, when the posterior norm is revoked, the previous one does not become valid again. [67]

 

In general, no one can allege ignorance regarding the legal norms to excuse himself in acting against the law. [68] When the statute has omissions, the judge shall decide based on analogy, costume or general principles of law. [69] However, the concepts of “costume” and “general principles of law” are not entirely clear in the Statute of Introduction to Brazilian Law. When the legislation enters in force, it has immediate effects, although it shall respect the acts previously settled ( ato jurídico perfeito ), rights gained under previous law ( direito adquirido ) and previous judgments not subjected to appeal ( coisa julgada ). [70]  

 

There are different rules to solve possible conflicts of international applicability of norms. The law of the country where the individual resides determines rules regarding personal rights – i.e. rights of personality including rules about the name, civil capacity and family law; [71] the rules applicable to property are those of the country where the thing is; [72] law of obligations are those of the place where the transaction took place; [73] the law of successions applicable is the one of the place where the deceased resided (there is an exception, though: the succession shall be regulated by Brazilian law when the Brazilian succession law provides more benefits for the spouse and children of the decease than the foreign law); [74] organizations such as foundations and societies that promote collective interests follow the law of the place in which they were established; [75] and the Brazilian Judiciary has jurisdiction over defendants who reside in Brazil or if there is the place in which the obligation shall be fulfilled. [76]

 

Regarding the application of foreign law, when the judge does not have the knowledge regarding the questioned norm, the party who invokes foreign law shall prove the content and the applicability of the norm. [77] To apply sentences of foreign courts, on its turn, it is necessary to fulfill some requirements: (i) the foreign judge shall have had jurisdiction over the case; (ii) the parties were properly called to the process or, if there was legal verification regarding the default of one of them; (iii) to have been decided in accordance with all the required legal formalities of the place; (iv) have been translated by accredited translator; and (v) have been ratified by the STF. [78]

 

The law, acts or judicial decision to be applied will not have efficacy in Brazil when they offend the national sovereignty, public order or “moral costumes” ( bons costumes ). [79] The notion of “moral costumes” is a source of large disagreement among legal scholars and practitioners however.

 

4.1.   Civil Law and Civil Procedure

The norms of civil law are established in the Civil Code ( Código Civil – CC) and in sparse legislation. Civil procedure, on its turn, is regarded as a field of public law in Brazil and most rules and the main principles are established in the Civil Procedure Code ( Código de Processo Civil – CPC).

 

The Civil Code currently in force was enacted in 2002 (Lei 10406/02) and entered into force in January 11, 2003. The Code is divided as follows:

 

  • Part I: General Part
      • Book I: Persons
      • Book II: Goods
      • Book III: Legal facts

 

  • Part II: Special Part
      • Book I: Law of Obligations
      • Book II: Law of Corporations
      • Book III: Law of Things
      • Book IV: Family Law
      • Book V: Succession Law
      • Complementary book: Final and Transitory Dispositions

 

In addition to the CC, there are other important statutes dealing with civil law. The main ones are: Children and Teenagers Statute ( Estatuto da Criança e do Adolescente – ECA, LO 8069/90); Costumer Defense Code ( Código de Defesa do Consumidor – CDC, LO 8078/90); and statutes regarding intellectual property: LO 9279/96 – industrial property; LO 9456/97 – cultivars; LO 9609/98 – Software; LO 9610/98 – copyrights and rights of authors.

 

The new Civil Procedure Code – Lei 13105/2015 – was enacted in March 16, 2015 and will enter into force after one year. After long of process of deliberation that took years, the disagreement about to what extent the new code will change the power of judges, celerity of the processes and guarantees of due process rights remains large.

 

4.2.   Commercial Code and Law of Corporations

After the enactment of the CC in 2002, the larger part of the Commercial Code of 1850 (Lei 556/1850) was revoked. The major part of the rules applicable to corporations and commercial activity are established in the Civil Code (Part II, Book II). Currently, the only part in force of the Commercial Code is the regulation of maritime commerce. In addition to the CC, there are some sparse regulations regarding corporations, for instance the statute on competition law, known as Lei do Cade ( Conselho Administrativo de Defesa da Concorrência – CADE – Lei 12529/11), statute of bankruptcy, judicial and extra-judicial reorganization (Lei 11101/05).

 

4.3.   Criminal Law and Criminal Procedure

Criminal law is established in the Criminal Code ( Código Penal – CP, Dec.-Lei 2848/40), criminal misdemeanor act ( Lei de Contravenções Penais , Dec.-Lei 3688/41) and sparse legislation. Rules of criminal procedure are established in the Criminal Procedure Code ( Código de Processo Penal – CPP, Dec. Lei 3689/41). In addition, the Criminal Execution Statute ( Lei de Execuções Penais – LEP, Lei 7210/84) regulates in detail how the sentence shall be executed.

 

The CP is divided in two main parts: General and Special parts. The first defines the main concepts of criminal law – mainly the applicability of criminal law, crime, imputation, penalty and extinction of penalty. The second, on the other hand, established the crimes. There are crimes against the person, property, intellectual property, labor organization, religion and respect to deceased, sexual dignity, family, public safety, public peace, public trustworthiness, and public administration. Moreover, beyond the crimes of the code, some important statutes establish another criminal offenses: Statute on domestic violence (know as Lei Maria da Penha , Lei 11340/06); Statute on drug (known as Lei de Drogas , Lei 11343/06); statute on racial and religious discrimination (Lei 7716/89); and statute on firearms (Lei 10826/03).    

 

4.4.   Labor Law

In addition to the rules and labor rights established in the Constitution, the main regulation regarding labor law is settled in the Labor Law Consolidation ( Consolidação das Leis do Trabalho – CLT, Dec.-Lei 5452/43). The CLT establishes norms on minimum wage, vacation period, work medicine, social welfare and trade unions.

 

4.5.   Tax Law

Large part of the tax law discipline is established by the Constitution, especially regarding the types of taxes that can be imposed (Article 145), competences of each member of the Federation in tax matters and the limitations of the taxation power. The main general statute regarding tax law is the National Tax Code ( Código Tributário Nacional – CTN, Lei 5172/66). The CTN determines in general the competences to impose tax; rules regarding foreign trade tax, income tax, tax over production and circulation of goods, and special taxes; fees; benefit charges ( contribuição de melhoria ); and distribution of tax revenue. The CTN also disciplines legislation, obligation, credit and administration on the area of tax law.

 

4.6.   Electoral Law

In addition to the Constitutional provisions on electoral law and political rights, the main statutes on this regard are the Electoral Code ( Código Eleitoral – CE – Lei 4737/65), Lei 6091/74 (regulates transportation from rural areas during the day of election), Lei 6996/82 (regulates the data collection and analysis in electoral processes), Lei 7444/85 (regulates the data collection of voting lists), LC 64/90 (establishes hypothesis of ineligibility, as determined in Article 14, §9 of the Constitution, and was complemented by LC 135/10) and Lei 9504/97 (provides general norms on electoral procedures). 

 

4.7.   Other Codes

§   Brazilian Driving and Traffic Code ( Código de Trânsito Brasileiro

Lei 9503/97)

§   Forest Code ( Código Florestal – Lei 12651/2012)

§   Waters Code ( Código de Águas – Dec. 24643/34)

§   Code of Mines ( Código de Minas – Dec.-Lei 227/67)

§   Military Criminal Code ( Código Penal Militar – Dec.-Lei 1001/69)

§   Military Criminal Procedure Code ( Código de Processo Penal Militar

Dec.-Lei 1002/69)

§   Aeronautics Code ( Código Brasileiro de Aeronáutica – Lei 7565/1986)

§   Telecommunications Code ( Código Brasileiro de Telecomunicações

Lei 4117/62)

 

5.      Appendix

 

5.1.   National Press and Official Publication

The official publications of legal rules in Brazil are the Diário Oficial da União – DOU (Federal Official Gazette) and Official Gazettes of each state. The judicial decisions are published in the Diários da Justiça of each court.

 

Since 2002, all rules and documents published by the official press are available online on the National Press website [80] and certified by the Brazilian Public Key Infrastructure (ICP-Brasil), with the same authenticity as the printed version.  

 

The Diário Oficial da União publishes normative acts of public national and general interest (legislative acts and statutes, decrees, normative instructions, regulations etc.); acts that interest public administration servers; contracts, announcements, warnings and state and municipal acts that requires national publication. [81]

 

Click here to access the National Press website.

 

5.2.   Law Education

The first law courses in Brazil started in August 11, 1827 in São Paulo (SP) and Olinda (PE). Undergraduate course in law takes in average five years and to be allowed to practice legal functions it is necessary admission to the Bar Association ( Ordem dos Advogados do Brasil – OAB). The acceptance at OAB requires that the candidate to be graduated or be in the last two semesters of the law course and be approved by a two phases exam. The OAB exam is the same for every unit of the federation therefore there are not different exams that are necessary to be approved in order to practice in different states. The statute that regulates legal profession is the Lei 8906/94, known as Estatuto da Advocacia or Estatuto da OAB . In this norm there are established the discipline of legal profession, rights of attorneys, ethical requirements, sanctions and the structure of the OAB.

 

Master courses in law usually take about three years and doctoral degrees require more three years, when the candidate has a Master degree, or five in total, when it is a straight doctoral program.

 

·        National OAB website

·        Graduate courses of law recognized by CAPES and their respective grades (Coordination of Improvement of People in Graduate Level - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior )

·        OBS designation: A course is considered “recommended” when the grade is equal or superior to 3 and the highest possible grade is 7.

·        e-MEC website (Ministry of Education – Ministério da Educação – MEC)

·        OBS: On the page above it is possible to consult which undergraduate and graduate courses have the license of the Ministry of Education.

 

6.     Glossary

  • ADCT: Ato das Disposições Constitucionais Transitórias (Transitional Constitutional Provisions Act)
  • AGU: Advocacia Geral da União (Advocacy-General of the Union)
  • CADE: Conselho Administrativo de Defesa da Concorrência (Administrative Council of Competition Defense)
  • CC: Código Civil (Civil Code)
  • CDC: Código de Defesa do Consumidor (Consumer Defense Code)
  • CF/88: Constituição Federal de 1988 (Federal Constitution of 1988)
  • CLT: Consolidação das Leis do Trabalho (Consolidation of Labor Law)
  • CNJ: Conselho Nacional de Justiça (National Council of Justice)
  • CPC: Código de Processo Civil (Civil Procedure Code)
  • CP: Código Penal (Criminal Code)
  • CPP: Código de Processo Penal (Criminal Procedure Code)
  • Dec.: Decreto (Decree)
  • Dec.-Lei: Decreto-Lei (Decree with force of Law)
  • DOU: Diário Oficial da União (Federal Official Gazette)
  • ECA: Estatuto da Criança e do Adolescente (Children and Teenagers Statute)
  • LC: Lei Complementar (Complementary Statute)
  • LEP: Lei de Execuções Penais (Criminal Execution Statute)
  • LO: Lei Ordinária (Ordinary Acts)
  • MEC: Ministério da Educação (Ministry of Education)
  • MP: Medida Provisória (Provisory Measure); Ministério Público (Office of Public Prosecution)
  • MPF: Ministério Público Federal (Federal Office of Public Prosecution)
  • MS: Mandado de Segurança (Writ of mandamus)
  • OAB: Ordem dos Advogados do Brasil (Brazilian Bar Association)
  • STF: Supremo Tribunal Federal (Federal Supreme Court)
  • STJ: Superior Tribunal de Justiça (Superior Court of Justice)
  • STM: Superior Tribunal Militar (Superior Military Court)
  • TCU: Tribunal de Contas da União (Federal Court of Accounts)
  • TJ: Tribunal de Justiça (State Court)
  • TRE: Tribunal Regional Eleitoral (Regional Electoral Court)
  • TRF: Tribunal Regional Federal (Regional Federal Court)
  • TRT: Tribunal Regional do Trabalho (Regional Labor Court)
  • TSE: Tribunal Superior Eleitoral (Superior Electoral Court)
  • TST: Tribunal Superior do Trabalho (Superior Labor Court)


[1] IBGE (Brazilian Institute of Geography and Statistics), population estimative as of Jul. 1 st , 2014, available in < ftp://ftp.ibge.gov.br/Estimativas_de_Populacao/Estimativas_2014/estimativa_dou_2014.pdf >, last seen Oct. 27, 2014.

[2] Article 14, Brazilian Federal Constitution of 1988 (CF/88).

[3] This statute is known as Lei Ficha Limpa , because it created ineligibility requirements related to the past background of candidates. Among other hypothesis, the new LC established that candidates who lost their previous mandates due to violation of local law lose are ineligible for eight years, former politicians who were convicted for abuse of economic and political power are also ineligible for eight years, and criminal conviction by collegial courts causes ineligibility for eight years after the period of the sentence.

[4] Article 82, CF/88.

[5] Article 83, CF/88.

[6] Article 80, CF/88.

[7] Article 81, CF/88.

[8] The 1988 Constitution is available on the STF website, see < http://www2.stf.jus.br/portalStfInternacional/cms/verConteudo.php?sigla=portalStfSobreCorte_en_us&idConteudo=120010 >, last seen Feb. 7, 2015.

[9] Some constitutional scholars consider the Constitutional Amendment n. 1/1969 to the 1967 Constitution a different and new constitutional text, because it established substantial modifications.

[10] Article 5, §2, CF/88.

[11] Article 5, §1, CF/88.

[12] This constitutional rule was established by the Constitutional Amendment n. 45/2004. The human rights treaties are regarded as superior norm and inferior to the constitution. To this date, the only treaty that has sucssefully been approved by this constitutional process and thus have constitutional statues is the UN Convention on the Rights of Persons with Disabilities  of 2007. For instance, the American Convention on Human Rights, treaty that Brazil ratified in 1992, was considered by the court as a suprior norm in relation to ordinary legislation, but with no constitutional status (STF, HC 90172, decided in Jun. 05, 2007).

[13] Article 12, §2, CF/88.

[14] However, it is required that the parents are not in a foreign country official service.

[15] Article 12, I, CF/88.

[16] Article 12, II, CF/88.

[17] Article 12, §1, CF/88.

[18] This treaty was incorporated in Brazilian legal system by Dec. 3927/00.

[19] Article 12, §4, CF/88.

[20] Article 12, §3, CF/88.

[21] The Federal District of Brasília has an organic statute instead of a constitution.

[22] Article 25 caput and §1, CF/88.

[23] Article 3, CF/88.

[24] Article 44, CF/88,

[25] Article 45, CF/88.

[26] Article 46, CF/88.

[27] Art. 45, §1, CF/88. There is a large discussion in Brazil regarding the distortion on the representation caused by this rule.

[28] Article 48, CF/88.

[29] Article 51, I, CF/88.

[30] Article, 52, I, CF/88.

[31] Article 52, II. CF/88.

[32] Article 59, CF/88.

[33] Article 69, CF/88.

[34] Article 62, §3, CF/88.

[35] Article 68, CF/88.

[36] For constitutional amendments, see item 2.2.

[37] It must be noted that Constitutional Amendments do not require presidential sanctioning.

[38] Article 66, CF/88.

[39] Article 66, §§4 and 5, CF/88.

[40] Article 64, CF/88.

[41] Article 1, Lei de Introdução às Normas do Direito Brasileiro (Dec.-Lei 4657/42).

[42] Article 60, I, II and III, Cf/88.

[43] Article 60, §2, CF/88.

[44] Article 60, §1, CF/88.

[45] Article 60 §4, CF/88.

[46] Article 76, CF/88.

[47] Article 84, CF/88.

[48] Article 2, LO 1079/1950.

[49] Article 92, CF/88.

[50] Article 93, CF/88.

[51] Article 99, CF/88.

[52] Article 95, CF/88.

[53] Article 101, CF/88.

[54] Article 104, CF/88.

[55] Article 107, CF/88.

[56] Article 93, CF/88.

[57] Article 111-A, CF/88.

[58] Article 93, CF/88.

[59] Article 115, CF/88.

[60] Article 119, CF/88.

[61] Article 120 and 121, CF/88.

[62] Article 123, CF/88.

[63] Article 125, CF/88.

[64] Article 125, §6, CF/88.

[65] Article 127, CF/88.

[66] Article 1, Statute of Introduction to Brazilian Law.

[67] Article 2, Statute of Introduction to Brazilian Law.

[68] Article 3, Statute of Introduction to Brazilian Law.

[69] Article 4, Statute of Introduction to Brazilian Law.

[70] Article 6, Statute of Introduction to Brazilian Law.

[71] Article 7, Statute of Introduction to Brazilian Law.

[72] Article 8, Statute of Introduction to Brazilian Law.

[73] Article 9, Statute of Introduction to Brazilian Law.

[74] Article 10, Statute of Introduction to Brazilian Law.

[75] Article 11, Statute of Introduction to Brazilian Law.

[76] Article 12, Statute of Introduction to Brazilian Law.

[77] Article 14, Statute of Introduction to Brazilian Law.

[78] Article 15, Statute of Introduction to Brazilian Law.

[79] Article 17, Statute of Introduction to Brazilian Law.

[80] See www.in. gov .br last seen Nov. 1 st , 2014.