Brazilian Judicial System – Part 1

a)      Structure of the Brazilian Judicial System

There is no legal conference around the country, where Justices (Ministros) from both the Supremo Tribunal Federal – STF and the Superior Tribunal de Justiça – STJ, the highest courts in the country for constitutional and non-constitutional matters, respectively, don’t complain about the amount of case load they are submitted to. Several measures, both by courts legal construction, and by law, have been made to change this scenario.

The Judiciary in Brazil is divided in an ordinary branch (justiça comum) and a special branch (justiça especial).

The ordinary branch is divided into federal and state courts. Those courts may be criminal or civil.

The federal courts are different from the state courts, because (as in the US) a federal first degree court normally will comprise a certain region, normally several towns in a certain state (as the US District Courts) and the Federal Regional Courts (Tribunais Regionais Federais – TRFs) have jurisdiction over several states (as the US Circuit Courts).

The special branch is divided in Labor, Electoral (which rule on misconducts practiced at federal, state and municipal elections) and Military Courts (which rule not only on misconducts by members of the Armed Forces, but also on the conduct of the States Military Police, the largest police force in the country). All those courts have appellate courts (TRT, TRE, TJM) and special superior courts (STM, TSE, TST), which are the highest courts in those matters (the constitutionality of their decision may be challenged at the STF).

In the ordinary branch, the highest court for non-constitutional matters is the Superior Tribunal de Justica – STJ, the highest court in most cases. The Superior Court of Justice, STJ, was created by the 1988 Federal Constitution to help lowering the number of cases that reach the Supreme Federal Court, STF.

For a claim to reach the STF the party has to demonstrate the case deals with a direct violation to the Federal Constitution. Most civil procedure matters, for instance, a domestic arbitration dispute, will only reach the STJ, because even though they may deal with a violation to the Constitution (i.g. due process), such violation is indirect.

A party always have to appeal simultaneously to both higher courts (STJ and STF) if it wants to have its claim heard by those Courts. The STJ will hear the claim first. Unless the case deals with a direct constitutional matter, STJ’s decision shall be final.

It is interesting to observe that the Tribunais de Justiça dos Estados – TJs (States Courts of Appeal) and the Tribunais Regionais Federais – TRFs (Regional Federal Courts) can have original jurisdiction over some matters. The STF and STJ also have original jurisdiction on several topics (Article 102, I, and 105, I, Federal Constitution – CF).

In this sense, a crime (either a felony or a political crime) committed by the President, Vice President or by a member of the National Congress is judged by the STF; a crime committed by governors and members of higher courts is judged by the STJ; a crime committed by mayors and local judges is judged by the TJs, and, a crime committed by federal judges is judged by the TRFs.

The STF and STJ may also have appellate jurisdiction, instead of extraordinary and especial jurisdiction, respectively.

In this sense, a first degree final ruling in a political crime is appealed directly to the STF, instead to a federal court of appeals (artigo 102, II, b), CF).

In the same fashion, a first degree decision that deals with a foreign state or a foreigner entity versus Brazilian municipalities or Brazilian residents is appealed directly to the STJ (artigo 105, II, c), CF).

Despite this very broad court system, historically, the number of appeals that reached the Supreme Federal Court in its capacity as an extraordinary courts of appeals were extremely high (more than five thousand up to five years ago).

Among other reasons, we could cite the vast number of procedural measures and the largeness of the Brazilian Federal Constitution (which has 250 articles and, so far seventy-one amendments). Also, historically, STF’s decisions were only bidding to the parties (inter partis), allowing for several similar cases to reach that court.

As we’ve discussed, several articles within the Brazilian Federal Constitution allow for cases to start directly at Brazil’s Highest Constitutional Court – i.g. as already mentioned, the STF has original jurisdiction to rule on any type of crime (political or felonies) committed by members of the National Congress, by the President, the Vice-President, State Ministers and the Attorney General (article 102, I, b), CF). This original jurisdiction overflows the 11 Supreme Court Justices who could be occupied with other topics.

In 2004, Congress passed a constitutional amendment that changed a couple of rules to try to speed up the Judiciary (EC 45/2004). We shall see about it in our next article.

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