Brazilian Judicial System – Part 2

b) Emenda Constitucional no 45/2004 (Constitutional Amendment 45/2004) and Administrative Agencies

1. Introduction

As previously mentioned, after thirteen years of discussion, the Congresso Nacional Brasileiro (Brazilian National Congress) finally passed a constitutional amendment that changed a couple of rules in the Brazilian Judiciary (Emenda Constitucional no 45 de 2004 – EC 45/2004).

Hence that, for a Constitutional Amendment to be approved it need to be voted twice by three fifths (3/5) of both Houses, the House of Representatives (Câmara dos Deputados) and the Federal Senate (Senado Federal). The Brazilian Federal Constitution, with no more than 25 years, already has 71 amendments.

2. Brief History of the Brazilian Constitution

There have been seven Constitutions since Brazil’s independence (1824, 1891, 1934, 1937, 1946, 1967 and 1988). The current Constitution (Constituição da República Federativa do Brasil) has been approved after the end of the Brazilian Military Regime (1964-1985). It is known as the Carta Cidadã (Citizen Chart) for its strong emphasis on human rights.

For its critics, however, it is a long, contradictory and confusing document. In order to guarantee every possible protection, the Original Constitutional Legislator (Legislador Constituinte Originário), represented by different political parties in the National Congress, some more of the left, others more of the right, of the political spectrum, has drafted a document that try to predict all sort of constitutional protections and regulations.[1]

The Brazilian Constitution is extremely programmatic and guiding (programática e diretiva) and specifically predicts, among other things, how the tax system is going to function, how political parties are going to operate and how the distribution of federal funds among the states and municipalities is going to take place.

3. Changes brought by the Constitutional Amendment 45/2004

In 2004, Congress passed a constitutional amendment that changed a couple of rules to try to speed up the Judiciary (EC 45/2004).

Now, Labor Courts rule not only on employment relations, but also on work relations (for example, independent contractors). The last was, prior to 2004, competence of Federal Courts.

The amendment also requires that Law Bachelors have a minimum three years experience in juridical activities in order to be admitted into certain careers, such as judges and public prosecutors (articles 93 e 129, CF). For public defenders, however, there is no such obligation.

There have been some conceptual changes, as the immediate distribution of proceedings in all levels of jurisdiction (article 93, XV, CF).

Besides, Brazil now is submitted to the jurisdiction of the International Criminal Court (article 5o, § 4º, CF) – the ICC, based in The Hague, Netherlands, prosecutes individuals for genocide, crimes against humanity, war crimes and crimes of aggression.[2]

The new amendment, likewise, elevated treaties and conventions on Human Rights to the category of constitutional amendments, if approved at each House of the National Congress, in two rounds, by three fifths (3/5) of the votes of their respective members (article 5o, § 4º, CF).

Also, since 2004, the STF can write binding enunciates (súmulas vinculantes).

All higher courts write súmulas – which are enunciates of their understanding on some major topic (i.g. how a state tax shall be applied) –, but only the STF can write binding ones. Nevertheless, since 2006, the Brazilian Civil Procedure Code (CPC) allows for a judge to refuse admitting an appeal when its decision was based on a súmula from the STJ or STF (CPC, 518 § 1o). Naturally, the appellant can always appeal from such decision arguing that the presented súmula does not apply in that case.

The EC 45/2004 has also created a new admissibility standard, similar to the US Supreme Court, for cases reaching the Supreme Federal Court (Supremo Tribunal Federal – STF) on extraordinary appeal (when STF is the court of last degree), the so called repercussão geral (general repercussion). We shall deal more deeply with this important mechanism in our next article.

Finally, another important innovation was the creation of the Conselho Nacional de Justica (CNJ) – (article 103-B, CF), which oversees the judicial system by making recommendations, enacting rules, etc…

There was some controversy about its creation. Many in the judiciary perceived it as a police body, but, at the end, most of the judicial community accepted its existence.

The CNJ is comprised of fifteen members from the judicial branches (the Department of Justice, the Public Prosecutor’s Office, by Federal and State Judges, etc.), who are recommended by their peers, appointed by the President and confirmed by the Senate. Its Chairman is the STF’s Chief Justice. In Brazil, unlike the United States, every two years a new Chief Justice is nominated by antiquity.

4. Administrative Agencies (Agências Administrativas)

One final observation. Brazil has several administrative agencies, as the Receita Federal do Brasil (Brazilian IRS) and the Instituto Nacional do Seguro Social – INSS (Brazilian Social Security Department).

Claims challenging administrative acts, such as fines, can be filed at those agencies. However, if a party chooses to do so, given the interpretation of different súmulas, its claim has to go all the way up to the last administrative court of appeals, before that party can file another claim before regular courts.

However, a party can always file an urgent measure before regular courts, as a writ of mandamus, if any of its rights are being violated by an administrative court (i.g. a resolution by the INS that mandates a party to deposit 20% of the value of the fine, if a party wishes to appeal an administrative ruling – a possible violation of due process and the right to appeal).

The right to always appeal before regular courts was brought by the Princípio da Inafastablidade do Judiciário (which can be translated as the redressability principle), a fundamental right, written in the Brazilian Constitution.

Brazil also has Sports Courts (Tribunais Desportivos), which are constitutionally predicted, and that are not part of the regular Judicial System (article 217, § 1º and § 2º, CF). We shall deal more extensively with them in a separate article. Regular courts rarely reverse a sports court ruling and when they do it, it is normally only because of a gross technical mistake. Regular courts show much deference to the sports courts system.

Article 5o, XXXV, Federal Constitution – “the law shall not exclude any injury or threat to a right from the consideration of the Judicial Power;”

To read the Brazilian Federal Constitution in English, please access (http://www.v-brazil.com/government/laws/titleII.html)


[1] In respect check the article “Limitations on Foreign Investments in Brazil”, by this author in cooperation with José Samurai Saiani, from Machado, Meyer, Sendacx e Opice.

[2] Site – Cour Pénale Internationale/ International Criminal Court (http://www.icc-cpi.int/Pages/default.aspx).

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