by Neil Montgomery
Constitution
Form
- What form does your constitution take?Brazil has a formal, written constitution, recorded in a single document, which was
enacted in 1988 and since then has been amended by 125 constitutional amendments.
The Federal Constitution is the supreme law of the land and no law or regulation
can contradict it. The Federal Constitution is extensive, containing 250 Articles. It
provides, among other things, for: many rights and guarantees; a division of tasks
between the federation, states and municipalities; and a division of powers between
the executive, judicial and legislative branches.The Federal Constitution contains some provisions that are considered permanent
and cannot be amended:
• The federative form of the state.
• The direct, secret, universal and periodic vote.
• The separation of powers.
• Individual rights and guarantees.Other constitutional provisions may be amended by a long and complex legislative
process, including a decision by a qualified quorum in Congress.Each Brazilian state also has its own state constitution. The Federal Constitution
provides for the autonomy of each state, which includes self-organisation, selflegislation
(whenever the subject is not restricted to federal law), self-government and
self-management, all with due respect to the provisions of the Federal Constitution.
These matters are addressed in each state’s own constitution.General constitutional features
2. What system of governance is provided for?
System of governance
Brazil is a federative and presidential republic. The government is secular and is
headed by the President. The government is independent of any religious group or
organisation.Head of state
The President is the head of state, holding executive power and representing the
country at official events.Structure
The executive branch is divided into three levels: federal, state and municipal. The
executive branch is headed by the President at the federal level, governors at state
level and mayors at municipal level.At the federal level, the legislative power is bicameral. Congress is divided into the
Senate (composed of 81 senators) and the House of Representatives (composed of
513 deputies). Legislative powers at state and municipal levels are held by one entity
at each level.Judicial power is divided into lower courts, courts of appeals and superior courts. The
Supreme Court, sitting in the capital Brasília, is the highest court and only reviews
constitutional matters.3. Does the constitution provide for a separation of powers?
The federal constitution provides for a separation of powers between the executive,
judicial and legislative branches.There are certain checks and balances to allow each power to oversee the others and
to avoid abuses of power. Some examples are:• Laws approved by Congress are subject to the President’s sanction. The
President has the authority to veto legal provisions and may nominate Supreme
Court judges.
• The President’s nominations for Supreme Court judges, the attorney general
and the president and directors of the Brazilian Central Bank are subject to
approval by the Senate.
• The President’s declarations of war and authorisation for foreign armed forces
to enter national territory are subject to approval by Congress.
• Congress can suspend any acts by the President that surpass the President’s
powers.
• Congress sits in judgment over the President for crimes related to the office.4. What is the general legislative process?
Proposal and draftingBills of law may be proposed by:
• Deputies.
• Senators.
• Commissions within the House of Representatives, Senate or Congress.
• The President.
• The Attorney General.
• The Supreme Court and other superior courts.
• A group of Brazilian citizens, if they represent at least 1% of the national
electorate, are located in at least five different Brazilian states, and if within
each state they represent at least 0.03% of voters.Scrutiny
Bills of law must be approved by both houses and sanctioned by the President. Either
house can propose a bill; once that house approves the bill, it will be sent to the other
house for approval (see below).Bills must be reviewed by at least two commissions:
• The Constitution and Justice Commission, which reviews the constitutionality
of the bill.
• Another specific commission related to the subject matter of the bill, which
reviews its convenience and relevance.The bill is then put forward to the members of the house to vote on. Voting
on ordinary laws can only take place if the majority of deputies or senators are
present. The bill is approved on the favourable vote of the majority of those present.
Certain matters (such as the creation of territories and granting states the authority to
legislate on matters that are under the federal government’s competence) must be the
subject of supplementary laws, which aim to supplement constitutional provisions.
Supplementary laws must be approved by the majority of all deputies or senators,
and not just of the majority of those present.If a bill is rejected, it is filed and another bill with the same purpose can only be
proposed in the same legislative period if approved by the majority of votes in one
of the houses of Congress.If a bill is approved by the first house, the bill is submitted for approval by the second
house. If it is amended by the second house, it will be returned to the first house for
approval of the amended section.Once approved by both houses of Congress, the bill is submitted to the President for
sanctioning. The President must review the constitutionality of the bill and ascertain
whether it is in the public interest to enact the law. The President may veto the bill
in whole or in part. If the President vetoes the bill, Congress will hold a special joint
session to discuss whether to overturn the presidential veto. A quorum of the majority
of all senators and deputies is required to do this. If the President does not either
approve or veto the bill in 15 days, the bill will be considered approved.Enactment
Laws are enacted by the President and then published in the Official Gazette. Some
laws may contain a vacatio legis, that is, a given period of time following publication
in the Official Gazette in which the general public may become better acquainted
with the contents of the law before it becomes fully effective.5. Is there a doctrine by which the judiciary can review legislative and
executive actions?The Brazilian judiciary can only act when prompted to do so by a person or entity. The
control of constitutionality of laws and executive actions and rules by the judiciary
can occur either in a diffused or concentrated manner.Diffused control
This occurs when lower court judges decide, when judging a claim, whether or not
to apply a law or regulation. This decision only affects the parties to the case, and so
the law or regulation will not be automatically applied or disapplied to third parties.
Third parties must file their own claims, and can only use the decision as a precedent.Concentrated control
The concentrated control of constitutionality is effected by specific judicial claims,
the effects of which apply to all persons. These claims may only be filed by the
following persons:• The President.
• The board of the Senate.
• The board of the House of Representatives.
• The board of the House of Representatives of a state or of the Federal District.
• The governor of a state or of the Federal District.
• The Attorney General.
• The Federal Board of the Brazilian Bar Association.
• A political party with representation in Congress.
• Federal workers’ unions or a national class entity (that is, an association of
persons of a certain profession uniting to defend their interests).6. Are certain emergency powers reserved for the executive?
In certain urgent cases, the President can enact provisional measures which have the
effect of law. While provisional measures can come into effect immediately, they are
subject to approval by Congress. Congress has 60 days, which may be extended for
another 60 days, to review the provisional measure and decide whether or not it will
become law.If Congress has not made a decision within 45 days of issue of a provisional measure,
all other votes in each house of Congress will be suspended until the provisional
measure is voted on.If the provisional measure is rejected by Congress, the legal framework goes back to
its original state before the issue of the provisional measure. In this case, the President
may not reissue the provisional measure within the same legislative session.7. Are human rights constitutionally protected?
The Federal Constitution defends fundamental rights and guarantees. It deals with
individual, collective, social and political rights. The constitutional provisions
regarding individual rights and guarantees cannot be amended. As part of the Federal
Constitution, these rights take priority over any law or regulation. International
treaties signed by Brazil addressing human rights, after being duly approved by
Congress, ratified and enacted by the President (as well as published in the Official
Gazette) are put on a par with the constitution.Among other human rights, the Federal Constitution:
• Protects equality between genders.
• Bans torture and inhumane or degrading treatment.
• Protects free speech without anonymity.
• Preserves religious freedom.
• Guarantees the presumption of innocence and the right to a fair trial.Amendment
8. By what means can the constitution be amended?
Amendments to the constitution may be proposed by either:
• The President.
• At least one third of senators or deputies.
• At least half of the state houses of representatives (each represented by the
majority of their deputies).Amendments must be approved by Congress, first by the House of Representatives
and then by the Senate, with the positive vote of at least three-fifths of all members
of each house. If rejected, the amendment cannot be proposed again in the same
legislative period.There cannot be any amendments to the Federal Constitution while the country is
under federal intervention, a state of siege or a state of defence.Federal intervention is an exceptional and temporary measure which takes away the
states’ and municipalities’ autonomy. It can only happen if there is coercion of the
judicial power, to ensure its free exercise, when a judicial order or decision is not
complied with, or when required by the Attorney General.A state of siege is an emergency measure whereby the President temporarily suspends
the powers of the judiciary and the legislature.A state of defence is an emergency measure taken, for example, when there
is a calamity, whereby the President may, temporarily suspend the rights to
confidentiality of mail and telephone and telegraphic communications, among other
measures.The Federal Constitution contains certain provisions (cláusulas pétreas, or stoneembedded
clauses) which are considered to be permanent and which cannot be
amended (see Constitution).Legal system
Form
9. What form does your legal system take?
Brazil adopts a civil law system, based on the Roman-Germanic tradition. Although
custom and case law are part of the legal framework, written law prevails over them
from an interpretive point of view. Federal law provides that a judge can only resort to
analogy, custom and general principles of law if the law is silent on a matter. Parties
to arbitration can freely choose the body of laws and norms to govern the resolution
of a dispute, including general principles of international trade law.Main sources of law
10. What are the main domestic sources of law?
The Federal Constitution is the highest law and no other legal provision can contradict
it. Each state has its own constitution, and state and municipal laws cannot contradict
their respective state constitutions.Laws are divided into:
• Supplementary laws, which are reserved for certain subject matters provided
for in the Federal Constitution (see Question 4, Scrutiny).
• Ordinary laws, which regulate all other matters.Laws are created at federal, state and municipal levels. The Federal Constitution
provides for matters that must be the subject of federal laws, those which may be
the subject of either federal or state laws, and those which should be regulated by
municipal laws.When both the federation and the states are to regulate a matter, the federal law should
create general concepts and guidelines, while the state law should regulate the details.The executive branch may issue decrees to regulate matters provided for in law.
Governmental entities and agencies can also issue administrative norms to regulate
in greater detail matters under their jurisdiction. Such administrative norms are
prohibited from modifying laws enacted by the legislature.11. To what extent do international sources of law apply?
after their text is approved by Congress and then ratified and enacted by the President.
They are then published in the Official Gazette. International treaties addressing
human rights issues are considered as having the same authority as the Federal
Constitution. Treaties tackling tax issues have the same authority as supplementary
laws and all other treaties and conventions are put on a par with ordinary laws.An international treaty incorporated into the Brazilian legal system revokes an
existing law of the same hierarchy addressing the same subject matter. If a law of
equal hierarchy and subject matter is enacted after the international treaty becomes
law, the new law will supersede the treaty. This may occur even before Brazil has
formally withdrawn from the treaty.Court structure and hierarchy
12. What is the general court structure and hierarchy?
Brazilian courts are divided into federal and state courts. Federal courts have
jurisdiction whenever the government or a governmental company or entity are a
party to the claim. The labour, electoral and military courts deal with specialised
matters.
All branches of the Brazilian judiciary are divided into lower courts and courts of
appeal. The specialised courts also have their own specific superior courts. For the
labour courts this is the Superior Labour Court, for the electoral courts it is the
Superior Electoral Court and for the military courts it is the Superior Military Court.Two higher courts are hierarchically superior to all other courts:
• The Supreme Court deals with constitutional matters only.
• The Superior Court of Justice is limited to reviewing federal laws and ensuring
a uniform interpretation of these laws. This higher court also has the authority
for recognising and confirming foreign judgments and arbitration awardsThese courts do not review any factual matters, but rather whether the lower courts
have correctly interpreted the federal constitution or federal law.13. To what extent are lower courts bound by the decisions of higher
courts?Generally, lower courts are free to decide claims regardless of the decisions issued by
superior courts. However, in 2006, the Federal Constitution was amended to allow the
Supreme Court to issue binding precedents regarding matters which it has repeatedly
reviewed. If the binding precedent is ignored by a lower court, the Supreme Court
may be petitioned directly.The issue of a binding precedent requires approval of at least two-thirds of the
Supreme Court justices, and is subject to the same control of constitutionality as all
laws.14. Are there specialist courts for certain legal areas?
Federal courts
Federal courts have jurisdiction to rule on civil and criminal matters relating to the
government or public entities, foreign governments or organisations, political crimes,
the rights of indigenous people and so on.Labour courts
Labour courts rule on individual and collective claims between workers and
employers, even if the employer is a governmental entity. Labour courts include
lower courts, regional courts of appeal and the Superior Labour Court. Labour courts
tend to favour employees.Electoral courts
Electoral courts protect the constitutional right to a direct and secret vote. They are in
charge of organising, monitoring and overseeing elections, and rule on irregularities
in campaigning and the conduct of elections. The Supreme Court recently decided
that crimes relating to electoral illegalities will be ruled upon by electoral courts. They
are composed of lower courts, courts of appeal and the Superior Electoral Court.Military courts
The military courts have jurisdiction over military crimes. There are lower courts,
courts of appeals and the Superior Military Court.15. Are other quasi-legal authorities commonly used?
The decisions of certain governmental bodies can be appealed to tribunals. For
example, a fine issued by a tax authority can be appealed to the corresponding
administrative tribunal. However, the existence of such administrative tribunals does
not exclude the jurisdiction of the courts and there is no obligation to litigate before
an administrative tribunal before accessing judicial courts.The government has created an official online platform to mediate complaints
between companies and consumers. While most sectors of the economy are not
legally required to enrol, it is strongly encouraged as a means to reduce litigation.
There are administrative level entities that mediate consumer relations, which can
apply penalties to companies. All such penalties may be reviewed in court.16.Does the constitution provide for an independent judiciary?
The judiciary is independent but subject to the Brazilian system of checks and
balances. Arbitration and mediation are both formally recognised and accepted by
Brazilian law. If parties contractually agree to resort to arbitration, the commitment
will be binding and they can resort to the judiciary only for injunctive relief and to
annul or enforce the arbitral award.17. How are members of the judiciary typically appointed?
All judges must hold a Bachelor of Laws qualification.
Lower court judges are selected by public examination and must have at least
three years’ experience of legal practice. Lower court judges begin their careers as
substitutes of the permanent judges, and usually work in rural areas. As the judges
progress in their careers, they earn permanent chairs and tend to work their way
towards the capital, are promoted to the courts of appeals and may be promoted to
one of the Superior Courts.Each federal court of appeals is composed of seven judges appointed by the President.
One fifth of judges sitting in all courts of appeals must be lawyers or members of
the Federal Public Prosecution Service with at least ten years of experience. The rest
must be federal judges with at least five years of experience. Appointments alternate
between those who earn the position on merit and those who earn it for time in office.Judges serving on the Supreme Court and the Superior Court of Justice must have
renowned legal knowledge and a sound reputation. They are appointed by the
President after being approved by a majority of senators.The Superior Court of Justice is composed of at least 33 members, of which one-third
must be judges from the federal courts of appeals, one-third must be judges from the
state courts of appeals and the last third must be lawyers and members of the State
Public Attorney’s office.Litigation (civil and criminal)
18. Do the courts use an adversarial, non-adversarial or other system?
Brazilian courts use an adversarial system
19. Who is responsible for gathering evidence?
Generally, in both civil and criminal law, the person making a claim is responsible
for gathering the evidence to support it. Certain exceptions apply and the burden of
proof can be shifted from the claimant to the respondent, especially in consumer and
labour claims.In criminal proceedings, evidence can be produced before or during the trial. When
investigating a crime, the police must collect all evidence that may shed light on what
happened and the circumstances under which it happened.In civil claims, the production of evidence occurs after the statement of claim is filed,
although preliminary evidence-collecting proceedings are possible when there is a
risk that the evidence will perish.During civil and criminal trials all parties may request the production of evidence.
The judge may determine what must be produced. Judicial approval is required
before some types of evidence, such as recordings of telephone conversations, can
be gathered. The judge can appoint experts to draft reports and review documents,
to determine that the parties undergo medical examinations, to order that documents
be filed and so on.In civil trials the parties may appoint their own experts to draft reports, in addition to
the court appointed expert. This is not possible in criminal trials.There is a constitutional provision that allows the parties to a case not to produce
or submit evidence that negatively impacts their case. This also means that in their
depositions, the parties may omit any information that is damaging to their case. This
does not apply to witnesses who are sworn in under oath and have a duty to tell the
truth under penalty of committing the crime of perjury if caught lying.20. Is evidence independently examined before a trial?
There is no formal independent examination of evidence before a trial. Each party
will assess its ability to prove the facts it will defend in court, and must provide the
court with all existing documentary evidence when filing a claim or a statement of
defence.
21. Are trials/hearings open to the public?The Federal Constitution provides that all judicial proceedings, including trials and
hearings, are open to the public, except when confidentiality is required to preserve
the right to privacy or the social interest.Civil law
Proceedings must be treated as confidential if:• The public or social interest so requires.
• They deal with marriage, separation, divorce, civil union, parentage, alimony
and custody of minors.
• They contain information protected by the constitutional right to privacy.
• They deal with arbitration, including execution of the arbitral award, provided
the confidentiality established in the arbitration is proven in court.Criminal law
Criminal proceedings must be treated as confidential in the same circumstances as
civil cases. Confidentiality will be determined by the presiding judge. The most
common causes for treating a criminal proceeding as confidential are:• Protecting the identity of victims of sexual offences.
• When minors are involved.
• The public or social interest so requires (for example, tax crimes, money
laundering and crimes involving public authorities).22. Are reporting restrictions typically imposed in relation to a trial?
There are no legal reporting restrictions. Provided no illegal acts are committed, the
press is free to publish news about ongoing, future or past litigation. The Brazilian Bar
Association Statute, enacted by Law No. 8,906/1994, prohibits lawyers from publicly
commenting on specific cases handled for their clients.23. What is the main function of the trial and who are the main parties to it?
The main function of the trial is to record the depositions of parties, witnesses and
experts. The lawyers can also provide closing statements.
In civil law, if the documentation submitted is sufficient to allow the judge to review
the merits of the case and therefore the production of oral evidence is not required, the
judge may opt for an early judgment, where a decision is given without holding a trial.
The main parties in a trial are the:• Judge.
• Claimant.
• Defendant.
• Attorneys.
• Witnesses.
• Experts.Lawyers must submit their questions to the opposing party, their witnesses and the
judge. The judge asks the questions to the witness in the judge’s own words. There
is no cross-examination. The new Code of Civil Procedure, effective since 18 March
2016, contemplates the possibility of the lawyers asking the questions directly to
the deponents, a procedure resembling cross-examination. Given that the tradition of
asking questions through the judge is embedded in Brazilian trial custom, Brazilian
courts have not widely adopted the practice of cross-examination.24. What is the main role of the judge and counsel in a trial?
Role of judiciary
Judicial power is provided for and protected by the Federal Constitution. Certain
measures can only be taken with judicial authorisation. Each judge has a duty to act in
a proactive manner to obtain the required information and make an adequate decision.
To this end, judges may request the production of evidence, question witnesses and
judge the relative strength of different pieces of evidence. Judges may grant injunctive
relief and take the measures deemed required to ensure the trial is conducted properly.Judges cannot:
• Hold another office or duty, other than a teaching role.
• Receive any stake in the claim.
• Be involved in politics.
• Receive assistance or contribution from any persons or entities, whether private
or public, except as provided by law.
• Practise law in the court in which they used to work for three years after
leaving the court.Role of legal counsel
Lawyers must defend their client’s best interest while acting within the confines of
the law. Only lawyers duly enrolled with the Brazilian Bar Association may represent
clients before courts and provide legal counselling.It is a lawyer’s role to represent clients in administrative or judicial proceedings, in
management meetings to assist with decision making and other tasks that require
legal assistance.25. To what extent are juries used?
Civil law
There are no jury trials in civil law litigation.Criminal law
Jury trials only occur in respect of wilful crimes against life, namely: homicide,
abortion, encouragement or assistance to commit suicide, infanticide and genocide,
including attempts to commit such crimes.26. What restrictions exist as to the evidence that can be heard by the court?
The Federal Constitution provides that no illegal evidence can be used in court.
Examples of illegally obtained evidence include confessions obtained under torture,
illegal phone interceptions, stolen documentary evidence, evidence obtained by
trespassing, false documents, and so on.The production of evidence must always respect the adversarial principle, that is, that
all parties should have the right to be heard. Evidence from other court proceedings
can be used in new court proceedings, provided the adversarial principle is observed
in the new proceeding.The Federal Constitution also provides that no one will be forced to provide evidence
against themselves. A person cannot be forced to testify about a fact that may suggest
they have criminal liability or that may harm their case.No proof obtained by illegal means may be used in criminal proceedings. Evidence
derived from illegally obtained evidence is also inadmissable, unless:• The link between the original illegal proof and the derived proof is not proven.
• The derived evidence could have been obtained from a source independent of
the original illegal proof. A source is considered to be independent of the illegal
act if it, in the usual and typical progress of a criminal investigation or trial,
would be capable of leading to the proof. - Which party has the burden of proof in a trial and at what standard is
this burden met?With a few exceptions, the party claiming a fact has the burden of proving it.Civil law
While the party claiming a fact must generally prove it, certain relationships are
considered unbalanced. In these cases, the weaker party may be unable to produce
the evidence, and therefore the burden of proof can be shifted. The burden of proof
may be shifted, for example, for consumer and labour claims.Criminal law
The prosecution must prove that the defendant is guilty.28. What verdicts can the court give?
Court proceedings can be awarded with or without prejudice. A without prejudice
(decisão sem julgamento do mérito) decision will be given when certain procedural
rules were not followed and this defect was not, or could not, be remedied, meaning
that it was not possible to reach a decision on the merits of the case. Without prejudice
decisions do not prevent the filing of a new court proceeding with the same purpose,
within the applicable statute of limitation.However, a judicial decision that does review the merits of the case can only
be questioned on appeal. A new court proceeding with the same purpose may
not be filed. Extraordinarily, judicial awards can be modified by means of a
rescissory action, but only in those cases where there is a violation of the appropriate
proceedings.Civil law
A definitive award will either recognise or deny a party’s supposed right, and may
determine the consequences arising from such recognition or denial.Criminal law
The judge or jury may find the defendant guilty or not guilty.29. What range of penalties/relief can the court order upon a verdict?
Civil law
A judge may:• Order the losing party to abstain from taking a certain action, and establish a
daily penalty (astreintes) for non-compliance.
• Create a legal relationship between the parties (for example, recognition of
paternity) or declare an existing relationship invalid or unenforceable.
• Order the losing party to pay indemnification and any amounts owed.
• Order the losing party to pay the winning party’s sucumbencia fees (that is, fees
relating to court costs and attorney’s fees).
• Order either party to pay a penalty for litigating with bad faith.
• Invalidate acts (for example, if an employee is found to have been wrongly
terminated, the judge may order that such person be given their job back).
• Restrict certain civil rights as a means to coerce debtors to pay their debts (for
example, seize passports, suspend driver’s licences and credit cards).
• Civil imprisionment is an extraordinary measure used to make a debtor comply
with their obligations (it will be revoked if and when the obligation is complied
with) and may only be used in the specific circumstances provided for in law:
• Failure to pay court sentenced support payments is subject to one to three
months of imprisonment.
• Failure of a depositary to return the good entrusted to their care can lead to
imprisonment of up to one year, but is currently not enforced by Brazil’s
Supreme Court.Criminal law
If the defendant is found guilty, they may be sentenced to:• Imprisonment with a maximum term of 30 years.
• Mandatory psychiatric treatment lasting until the patient is deemed by a board
of doctors to be ready to go back and live in society.
• The payment of a penalty and to return any profits that may have been gained
through the crime.The death penalty is only permitted in times of war and must be authorised by the
President. Life imprisonment is not permitted in Brazil.