c) Particularities of the Supremo Tribunal Federal – STF
As we have mentioned, the Supremo Tribunal Federal – STF (Supreme Federal Court) is the highest court for constitutional matters.
Retirement age for all Supreme Federal Court Justices is at the age of seventy (70). In fact, seventy is the maximum retirement age predicted in the Federal Constitution for all civil servants in the country, including all state and federal judges (article 40, § 1º, II, Federal Constitution – CF).
There are some controversies over that dispositive, since with advancements of medicine, seventy is not such an early age. Besides, all judges who retire are entitled to a full pension.
The highest public salary in the country is of a STF Justice (article 37, XI, CF).
As we’ve mentioned, Justices from the STF and STJ are nominated by the President and confirmed by the Federal Senate. All judges (federal, state, labor, etc.) are admitted by an open exam (concurso público). Other members in the Judiciary such as public prosecutors (state and federal), public defenders, court clerks, etc., are also admitted by an open exam.
Judges of the State Courts of Appeal (Desembargadores) and of the Federal Regional Courts (known, informally, as desembargadores federais) come from the regular ranks of the judicial system and are promoted by merit and antiquity.
Nevertheless, one-fifth (1/5) of those desembargadores and desembargadores federais are nominated by members of the State and Federal Attorney’s Offices (Ministério Público Estadual e Federal) and by members of the legal community and are selected by the head of the Executive Power (the Governor or the President). This is the so called quinto constitucional (constitutional fifth) predicted in the Federal Constitution (article 94, CF).
Until recently, decisions made by the STF as an appellate court were not binding to lower courts.
As a result, and given that our Constitution is much longer than the US Constitution (250 articles), the 11 STF’s Justices (Ministros) used to rule on more than 5.000 cases a year, which is humanely impossible, many times relating to claims of no social importance – there is a famous tale of a Justice that had to rule on the dispute between neighbors over a parrot, since it involved environmental and property law.
Another flaw in such system was that the STF used to hear similar cases, repeatedly.
A party always has to appeal to both higher courts (STF and STJ) if it wants to have its claim heard.
Other requisites for a case to reach the Supreme Federal Court are the so called prequestionamento (all topics have to be stated in the decision made by the lower court) and the exhaustion of all other types of appeals (exaurimento de recursos).
As previously mentioned, the appellant has to demonstrate a direct violation to the constitution.
Two changes were introduced in 2004 by EC 45/2004. The, already mentioned, súmula vinculante – to be written by two-thirds (2/3) of STF’s Justices (7 Justices) and the so called repercussão geral (general repercussion), that came to be regulated by Law 11.418/2006.
With the repercussão geral, STF became more of a constitutional court. Now, the first topic the presiding Justice will analyze before accepting to hear the claim, is whether that particular case presents a general repercussion to society affecting it socially, legally, politically or economically.
The Appellant has to demonstrate that its claim surpass its personal interest. Also, the STF (and the STJ, since 2008) will hear only one of the claims and their decision will apply to all claims of the same matter.
Therefore, if the STF declines to hear a case, all similar cases will be dismissed. But, if decides to hear that particular claim, it shall produce effects to all other claims pending trial.
Also, measures as the amicus curiae were introduced in the system, a couple of years ago (since 1999) and were better regulated with the repercussão geral. The amicus curiae (friend of the court) allows for social or political groups to file a brief before STF supporting their particular position on the matter.
Many amicus curiae were filed, for instance, by different organizations on the case regarding the constitutionality of affirmative actions, based on different claims filled by students that had their admission refused in federal universities, even when having significant higher grades than students admitted by the quota system.
The Attorney General (Procurador-Geral da República) and the Solicitor General (Advogado Geral da União) also file a brief with their opinion on those cases.
All the briefs previously mentioned are non-binding and only serve as reference to the Justices hearing the claim.
Brazil adopts the German Constitutional model and has two forms of constitutional control. They are:
The difuso, when a claim goes all the way to Supreme Federal Court after all appeals have been made, and when, incidentally, the constitutionality of a norm may be challenged – same as in the US, but in Brazil the decisions are only bidding to the parties in that particular claim (inter partes) , and,
The concentrado, when only certain political and legal entities – as the Attorney-General, the Federal Bar Association, Political Parties with national representation, National Entities… (See article 103 of the Federal Constitution) – file a specific remedy (ADIN, ADECON, ADPF) directly before the Supreme Federal Court and what is discussed is the constitutionally or unconstitutionality of the statute in dispute, not a specific case. Their decision is bidding to everyone – erga omnes.
In recent years, there have been some changes, by legislation and jurisprudence, and the Supreme Federal Court has been amplifying the effects of its decisions in the difuso method, not to have similar cases heard over and over again, such as granting them efeitos gerais (general effects).
What the STF’s Justices normally do is to have a claim (i.g. affirmative actions, gay civil unions, stem cell research) supported by an entity enlisted in article 103 so they can grant erga omnes effects to their decision.
The results, with a reduction of 50% in the cases heard by our Supreme Court, start to show up.
Plus, the cases that are reaching that court tend to be more interesting. Nevertheless, there are still approximately 8.000 cases waiting to be heard by Brazil’s Highest Court.