Brazil is a democracy with a civil law system based on Roman and German traditions. It is the largest, most populous, country in Latin America. Brazil’s diverse population of over 200 million includes descendants of the Portuguese, descendants of African slaves, indigenous communities, and immigrants from Europe, the Middle East and Asia. There are 305 indigenous tribes in Brazil comprising .8% of the population. The government recognizes 690 indigenous territories, mostly in the Amazon, covering 13% of Brazil’s land mass. There are over 200 languages spoken in Brazil, including its official language of Portuguese, German, and many indigenous languages.
The Portuguese Empire ruled Brazil for over three hundred years, with slavery the driving force of the economy. In 1822, the son of King Dom João VI declared Brazil’s independence but the nation continued to be ruled by the Portuguese royal family. Slavery was abolished in 1888 and one year later, landowners joined the military to oust the Portuguese and establish the first Republican government of Brazil. The next hundred years included intermittent periods of calm, violence, dictatorship, as well as military coups. In 1985, after twenty years of a repressive military dictatorship and with the economy in shambles, a democratic government was elected. A new constitution was enacted in 1988.
Judicial System
Brazil’s constitution sets forth a federal system of government with one federal district and 26 states. There is a federal judiciary, and each state has its own constitution and courts. In Brazil, the word ‘tribunal’ is used in lieu of ‘court.’
Brazil has a career judiciary with a competitive appointment and promotion process. Applicants to the lower courts must have at least three years of legal practice and pass an entrance exam. Most judges enter the judiciary within a few years of graduating university and usually begin their careers in rural areas, working their way up to more desirable jurisdictions and higher court positions. All civil servants in Brazil, including judges, have a mandatory retirement age of 75.
Federal Courts
The federal judiciary includes tribunals of general and specialized jurisdiction.
First Instance
The first instance federal courts (Juízes Federais) hear criminal cases involving federal crimes and other crimes designated by the constitution as well as civil cases involving the states, disputes between a municipality or resident of Brazil and a foreign state or international organization, and cases involving treaties and international agreements.
Federal Regional Tribunals (Tribunais Regionais Federais)
The Federal Regional Tribunals review appeals of lower court cases and have first instance jurisdiction over cases of national interest. There are six judicial regions: Brasília (1st Region), Rio de Janeiro (2nd Region), São Paulo (3rd Region), Porto Alegre (4th Region), Recife (5th Region) and Belo Horizonte (6th Region).
Each regional tribunal has judges appointed by the President from lists prepared by the courts. Judges from the career judiciary with at least five years of experience are appointed based upon merit and seniority.
However, one-fifth of the judges on the regional tribunals are chosen by respected members of the bar and by representatives of the Public Prosecutor’s Office (the Ministério Público Federal). They must have at least ten years of experience. The rest of the judges are appointed from the career judiciary; candidates must have at least five years of experience and are selected on the basis of merit or length of tenure, alternately.
Federal Supreme Court (Supremo Tribunal Federal)
The Federal Supreme Court has exclusive authority to review the constitutionality of federal and state laws, preside over extradition requests, and review lower court judgments that raise constitutional questions. It also presides over criminal charges against high level political officials and hears writs of habeas corpus and mandamus as well as “extraordinary appeals” involving constitutional violations. The court hears cases in panels of five justices, with the most senior justice presiding.
The court has eleven justices. They must be native Brazilians and at least 35 years old. Supreme Court justices are appointed by the president after approval by a majority of senators. The Chief Justice and Adjunct Chief Justice are elected by the members of the court to a two-year term. Supreme Court justices also have a mandatory retirement age of 75.
In 2004, Brazil’s constitution was amended to empower the STF to issue binding judgments on settled questions of constitutional interpretation, referred to as súmula vinculante (or binding pronouncement). These precedential judgments must be approved by two-thirds of the justices. They apply to the courts and all government entities. In 2015, Brazil’s Code of Civil Procedure was amended to codify the use of precedent, a reform intended to address growing case backlogs. The new system of precedent limits judicial discretion and encourages more uniformity, predictability, and stability in the nation’s jurisprudence. However, Brazil did not adopt an expansive common law form of stare decisis. The new system applies only to decisions of the STF on selected (by the Court) constitutional questions, other decisions the STF deems to be binding, and certain “infra-constitutional” questions decided by the Superior Court of Justice.
The Superior Tribunal of Justice (Superior Tribunal de Justiça)
The Superior Tribunal of Justice is the highest court for all non-constitutional civil and criminal matters. It is responsible for interpreting legislation and handling issues involving foreign court judgments, including requests for letters rogatory. The STJ also exercises administrative authority over the judiciary through the Federal Justice Council and oversees judicial education through the work the National School of Training and Improvement of Magistrates.
There are 33 justices on the STJ. They are appointed by Brazil’s president after approval by a majority of senators. One-third of STJ members are drawn from the federal courts of appeals, one-third from the state courts of appeals, and one-third from the bar or the Public Prosecutor’s Office.
Military Justice
Brazil’s military justice system, established in 1808, is the oldest judicial branch entity. Its courts adjudicate cases involving the armed forces and military law. The first instance tribunals, called Audits, have mixed jurisdiction over the navy, army, and air force. Proceedings are heard by the Council of Justice, an assembly of four officials with a judge-auditor. There is one level of appeal to the Superior Military Tribunal, which has authority to review cases and also adjudicate cases against officers. Military cases are prosecuted by the office of State Military Justice, a specialized branch of the judiciary.
Labor Courts
The labor court system applies Brazil’s labor laws. Its first instance courts handle individual claims and administrative matters. The regional second-instance courts hear appeals. The Superior Labor Tribunal, composed of 27 members, is at the apex.
Electoral Justice
The electoral justice system was created in 1932 to oversee the electoral process and adjudicate all disputes related to elections, referendums, and plebiscites. There is a first instance electoral judge in each election zone around the country, selected from among state court judges.
Each state has a Regional Electoral Tribunal. The Superior Electoral Tribunal (Tribunal Superior Eleitoral) has seven ministers: three are selected by the Supreme Court, two are elected by the Superior Tribunal of Justice, and two are lawyers with relevant expertise appointed by the President. Each minister serves for a once renewable two-year term; this tenure was kept short to reduce the risk of political influence.
The National Council of Justice
The National Council of Justice is an administrative entity that manages Brazil’s judicial system. It is tasked with managing court operations, developing national judicial policy, disseminating best practices, and overseeing judicial conduct and discipline. The Council keeps data of all court filings and pending cases on its website. The Chief Justice of the Supreme Court presides over the Council and the President of the Superior Tribunal of Justice serves as national inspector magistrate and executive director of the Council. This role includes reviewing complaints about judicial conduct and services.
In 2023, the National Council of Justice issued a ruling to promote greater gender equality within Brazil’s courts of appeal and address the underrepresentation of women on appellate tribunals. The new rule mandates that courts must alternative between a mixed gender list of recommended judges and a list composed of only female judges.
State Courts
Each state in Brazil has at least one first instance court, a court of appeals, and a supreme court. The state courts have residual jurisdiction, hearing criminal and civil cases not within the jurisdiction of the federal judiciary. The first instance courts are divided into districts called comarcas. Cases are heard by a single judge or, in very limited criminal cases, a jury. In criminal cases, the judge overseeing the investigation will preside over all case-related proceedings through trial.
Appeals are heard by a panel of three judges. The state supreme court (tribunal de justiça) exercises supervisory authority over the lower courts and can appoint special state judges to hear cases involving agriculture. First instance judges are selected by competitive examination, court of appeals judges are appointed by the governor, and supreme court justices are appointed by the governor, with the approval of the State Assembly.
Small Claims Courts
Small Claims Courts Brazil has a robust system of small claims courts, Juizado Especial Cível, popularly known as Tribunal de Pequenas Causas or JEC on the state level and Juizados Especiais Federais or JEF on the federal level. There are JEC or JEF offices in cities throughout the country. JEC have jurisdiction over a broad range of issues including conflicts between neighbors, minor property damage, consumer rights violations, problems with service providers, claims relating to pension plans, small traffic incidents, debt collection, and landlord tenant disputes. JEC do not have jurisdiction over cases involving labor disputes, divorce, custody, or taxes. JEF handle cases that fall within the jurisdiction of the federal courts that may involve damages up to a statutorily designated monetary limit.
Claims may be filed orally or in person at a JEC or JEF and must include documentary evidence. Once the claim is reviewed and registered, a hearing is scheduled within 15 days. No attorney is required for claims under a certain amount. The first hearing involves mediation. If this fails, the case is transferred to a judge to review the evidence and take testimony; the judgment is issued the same day. Parties have ten days to appeal to a panel of three judges. Legal representation is mandatory for appeals. A final appeal may be taken to Brazil’s supreme court if the case implicates a constitutional issue.
Office of the Public Prosecutor
The Office of the Public Prosecutor (Ministério Público) is a constitutionally independent body at both the federal and state levels. Usually denoted to as ‘MP,’ it has been referred to as a “Fourth Branch” of government. The MP is led by the Prosecutor General and has three independent bodies: the Public Procurator’s Office, Public Defender’s Office, and the Public Prosecutor’s Office. For both the federal and state systems, there are three levels of public prosecutors, one for each level of court. Although the MP supervises police investigations, prosecutors only investigate major criminal cases including those involving misconduct by the police or public officials.
Jury Trial
The jury trial was first introduced in Brazil in 1822; it was limited to prosecutions involving freedom of the press. The 1988 constitution recognized the right to trial by jury for “willful crimes against life” (intentional homicide, infanticide, assisted suicide, and later term abortion). Citizens who would like to serve as a juror volunteer through a formal registration letter. Before a trial commences, twenty-five prospective jurors are called to court. Seven are selected by the prosecution and defense to serve as the “Conselho de Sentenca” (Judgment Council). The prosecution and defense can reject up to three potential jurors without providing a reason.
During the first phase of the jury trial in Brazil, the judge determines whether the case should proceed, be dismissed, suspended, or a judgment of acquittal issued. If the case moves forward, jurors hear testimony from prosecution and defense witnesses. Brazil’s criminal procedure code entitles each side to five witnesses whose testimony must be completed within five days. At the conclusion of this testimony, the defendant is given the opportunity to add new information and testify. Opening and closing statements are made after the conclusion of witness testimony. Each side has 90 minutes, with the defense arguing first. The defense may then offer a one-hour rebuttal to the prosecution’s argument and the prosecution has an hour to offer a rejoinder. The case is next sent to the jurors for deliberation.
Each juror deliberates alone; they are not permitted to communicate with one another or with anyone else. At the conclusion of their deliberations, each juror is asked about the facts, the accused’s actions, whether the accused should be acquitted and if not, whether there are reasons to reduce or increase the prescribed sentence. Jury verdicts do not have to be unanimous; a simple majority is sufficient.
Plea Bargaining
A formal system of plea bargaining (delação premiada) was introduced in 2013. The judge has authority to pardon or reduce the sentence of defendants who voluntarily cooperate with the criminal investigation and provide the following types of information: the identity of other perpetrators, details about the criminal organization, prevention of related crimes, recovery of crime-related assets, the location of a living victim. A plea agreement may be entered at any time, even after a conviction. The negotiation process takes place between the defendant (or suspect) and the police or public prosecutor. The judge is not involved but must approve the agreement. Plea negotiations involving high level political officials are handled by the Supreme Court.
Brazil also has a simplified trial process for criminal charges subject to less than two years of incarceration. The prosecutor and accused can enter into an agreement, called a transaction, to suspend the case for two – four years; if the accused does not engage in new criminal conduct, the case dismissed. This process is discretionary with the prosecutor who will consider the character of the accused and circumstances under which the crime was committed.
