Law of Brazil
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Brazilian law derives from Portuguese civil law and is based on statutes and, partly and more recently, stare decisis. According to the judiciary structure framed in the Brazilian Constitution, judicial power is divided between the State judicial branch and the Federal judicial branch, each having a different jurisdiction. State-level courts make decisions on all criminal and civil cases, with regional federal courts acting as courts of appeal. A Supreme Court exists to make final, binding decisions in legal cases and on interpretations of the Constitution.
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[edit] History
Brazilian law was introduced with the arrival of the first Governor-General of Brazil. There was only one judge at the time. For several years Portuguese law - the "Ordenações do Reino" - prevailed in Brazil.
When Brazil became independent, in 1822, the country was organised as an empire and its first Constituinte, the people's representatives assembled to make a constitution, was put aside by the Emperor, Dom Pedro I, who granted it by his turn, the first Brazilian Constitution then deriving from a tyrannical gesture.
[edit] Constitution and law
Brazilian is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition. This means that the legal system is based on statutes, although a recent constitutional reform (Amendment to the Constitution 45, passed in 2004) has introduced a mechanism similar to the stare decisis, called Súmula Vinculante. Nevertheless, according to article 103-A of the Brazilian Constitution, only the Supreme Court is allowed to edit binding rules. Inferior judges and courts, and the public administration, are hence obliged to obey the interpretations of the Supreme Court.
Nowadays, according to the Judiciary Structure framed in the Brazilian Constitution, judicial power is divided between the State judicial branch and the Federal judicial branch, and they have different jurisdictions. The prerogatives and duties of judges are the same, the differences being only in the competences, structure and composition of the Courts.
[edit] State-level judiciary
[edit] Trial courts
Each state territory is divided into judicial districts named comarcas, which are composed of one or more cities. The 27 State Courts have their headquarters in the capital of each State and the Federal District have jurisdiction only over their State territories. Each comarca has at least one trial court, a court of first instance. Each court of first instance has a law judge and a substitute judge. In some districts there are specialized trial courts for family cases and bankruptcy. The judge decides alone in all civil cases and in most criminal cases. Only intentional crimes against life are judged by jury. The judges of the courts are nominated after a selection process. There are specialized courts of first instance for family litigation or bankruptcy in some cities and states. Judgments from theses district courts can be the subject of judicial review following appeals to the courts of second instance.
[edit] Justice tribunals
The highest court of a state judicial system is its court of second instance, the Justice Tribunal. In each Brazilian state there is one Justice Tribunal (Tribunal de Justiça in Portuguese). Some states, as São Paulo and Minas Gerais, used to have Courts of Appeals (Tribunal de Alçada in Portuguese) too, but with different jurisdictions. Justice Tribunals are courts of appeal, meaning they can review any decisions taken by the trial courts, and have the final word on decisions at state level - though their decisions may be overturned by the federal courts.
Second instance judgments are usually made by three judges, called desembargadores. Judges of the Justice Tribunals are appointed by the state governor. Justice Tribunals are divided into civil chambers, which judge civil cases, and criminal chambers. Judges of the justice tribunal overview one another. A Tribunal can expel any judge who has displayed unethical behavior.
[edit] Federal-level judicial branch
Federal Courts (in number of 5) have jurisdiction over circuits of several states and tend to be headquartered in the largest city of their territory. The regional courts are:
- The Regional Federal Court of the 1st Region has jurisdiction over 14 States: the Federal District, Minas Gerais, Bahia, Piauí, Maranhão, Goiás, Mato Grosso, Amapá, Tocantins, Pará, Amazonas, Roraima, Rondônia and Acre, with headquarters in Brasília, Federal District.
- The Regional Federal Court of the 2nd Region has jurisdicion over two States: Rio de Janeiro and Espírito Santo, with headquarters in Rio de Janeiro.
- The Regional Federal Court of the 3rd Region has jurisdicion over two States: São Paulo and Mato Grosso do Sul, with headquarters in São Paulo.
- The Regional Federal Court of the 4th Region has jurisdicion over three States: Rio Grande do Sul, Santa Catarina and Paraná, with headquarters in Porto Alegre, Rio Grande do Sul.
- The Regional Federal Court of the 5th Region has jurisdicion over six States: Sergipe, Alagoas, Pernambuco, Paraíba, Ceará and Rio Grande do Norte, with headquarters in Recife, Pernambuco.
[edit] Superior courts
There are two national superior courts making up the Supreme Court, which grant writs of certiorari in civil and criminal cases: the Superior Court of Justice ("Superior Tribunal de Justiça" in Portuguese, shorthand STJ) and the Supreme Federal Court ("Supremo Tribunal Federal" in Portuguese, shorthand STF), the highest Brazilian court (decides issues concerning offences to the Brazilian Constitution).
The "Superior Tribunal de Justiça – STJ" is the Brazilian highest court in non-constitutional issues and grants a Special Appeal (Recurso Especial in Portuguese) when a judgement of a court of second instance offends a federal statute disposition or when two or more second instance courts make different rulings on the same federal statute. There are parallel courts for labor law, electoral law and military law.
The STF grants Extraordinary Appeals (Recurso Extraordinário in Portuguese) when judgements of second instance courts violate the constitution. The STF is the last instance for the writ of habeas corpus and for reviews of judgments from the STJ.
The superior courts do not analyze any factual questions in their judgments, but only the application of the law and the constitution. Facts and evidences are judged by the courts of second instance, except in specific cases such as writs of habeas corpus.
[edit] See also
[edit] External links
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