The Judicial Power

Section 1: General Provisions

Article 92.

The following are the bodies of the Judicial Power:

1. the Supreme Federal Court; a. the National Council of Justice;
2. the Superior Court of Justice;
3. the Federal Regional Courts and the Federal Judges;
4. the Labour Courts and Judges;
5. the Electoral Courts and Judges;
6. the Military Courts and Judges;
7. the Courts and Judges of the states, of the Federal District and of the territories

Paragraph 1. The Supreme Federal Court, the National Council of Justice, andthe Superior Courts have their seat in the Federal Capital.

Paragraph 2. The Supreme Federal Court and the Superior Courts have their jurisdiction over the entire Brazilian territory.

Article 93. A supplementary law, proposed by the Supreme Federal Court, shall provide for the Statute of the Judicature, observing the following principles:

1. admission into the career, with the initial post of substitute judge, by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all phases, at least three years of legal practice being required of holders of a B.A. in law, and obeying the order of classification for appointments;
2. promotion from level to level, based on seniority and merit, alternately, observing the following rules: a) the promotion of a judge who has appeared in a merit list for three consecutive times or for five alternate times is mandatory; b) merit promotion requires two years in office in the respective level and that the judge should appear in the top fifth part of the seniority list of such level, unless no one satisfying such requirements is willing to accept the vacant post; c) appraisal of merit according to performance and to the objective criteria of productivity and promptness in the exercise of the jurisdictional function and according to attendance and achievement in official or recognized improvement courses; d) in determining seniority, the court may only reject the judge with the longest service by the justified vote of two-thirds of its members, according to a specific procedure, full defense being ensured, the voting being repeated until the selection is concluded e) promotion shall not be granted to a judge who unjustifiably withholds case records beyond the legal deadline, and he may not return them to the court archives without providing the necessary disposition thereof or decision thereon
3. access to the courts of second instance shall obey seniority and merit, alternately, as determined at the last or single level;
4. provision of official courses for preparation, improvement, and promotion of judges, while the participation in an official course or in a course recognized by a national school for the education and further development of judges shall constitute a mandatory stage of the tenure acquisition process
5. the compensation of the Justices of the Superior Courts shall correspond to ninety-five percent of the monthly compensation stipulated for the Justices of the Supreme Federal Court, and the compensation of the other judges shall be stipulated by law and distributed, at the federal and state levels, according to the respective categories of the national judiciary structure, and the difference between categories may not be higher than ten per cent or lower than five per cent, nor higher than ninety-five per cent of the monthly compensation of the Justices of the Superior Courts, with due regard, in any of the cases, for the provisions of articles 37, XI, and 39, paragraph 4
6. the retirement of judges as well as the granting of pensions for their dependents shall comply with the provisions of article 40;
7. a permanent judge shall reside in the respective judicial district, except when otherwise authorized by the court;
8. the acts of removal, of placement on paid availability, and of retirement of a judge, for public interest, shall be based on a decision by the vote of the absolute majority of the respective court or of the National Council of Justice, full defense being ensured
9. A – the removal upon request or the exchange of judges of same-level judicial districts shall obey, insofar as pertinent, the provisions of subitems a, b, c, and e of item II;
10. all judgements of the bodies of the Judicial Power shall be public, and all decisions shall be justified, under penalty of nullity, but the law may limit attendance, in given acts, to the interested parties and to their lawyers, or only to the latter, whenever preservation of the right to privacy of the party interested in confidentiality will not harm the right of the public interest to information
11. administrative decisions of courts shall be supported by a recital and shall be made in open session, and disciplinary decisions shall be taken by the vote of the absolute majority of their members
12. in courts with more than twenty-five judges, a special body may be constituted, with a minimum of eleven and a maximum of twenty-five members, to exercise delegated administrative and jurisdictional duties which are under the powers of the full court, half of the positions being filled according to seniority and the other half through election by the full court;
13. courts will operate continuously, without interruption, collective vacation being forbidden for first instance judges and courts of second instance, and there must be judges on duty at all times on days in which courts are closed;
14. the number of judges in each court shall be proportional to the effective judicial demand and to the respective population;
15. court employees will receive delegation to carry out administrative acts and acts aimed at the mere disposition of matters, without a decisional nature;
16. proceedings will be assigned immediately upon filing, at all levels of jurisdiction.

Article 94. 1/5 of the seats of the Federal Regional Courts, of the Courts of the States, and of the Federal District and the Territories shall be occupied by members of the Public Prosecution, with over ten years of office, and by lawyers of notable juridical learning and spotless reputation, with over ten years of effective professional activity, nominated in a list of six names by the entities representing the respective classes.

Upon receiving the nominations, the court shall organize a list of three names and shall send it to the Executive Power, which shall, within the subsequent twenty days, select one of the listed names for appointment.

Article 95.

Judges enjoy the following guarantees:

1. life tenure, which, at first instance, shall only be acquired after two years in office, loss of office being dependent, during this period, on deliberation of the court to which the judge is subject, and, in other cases, on a final and unappealable judicial decision;
2. irremovability, save for reason of public interest, under the terms of article 93, VIII;
3. irreducibility of compensation, except for the provisions of articles 37, X and XI, 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I. Judges are forbidden to:
4. hold, even when on paid availability, another office or position, except for a teaching position;
5. receive, on any account or for any reason, court costs or participation in a lawsuit;
6. engage in political or party activities;
7. receive, on any account or for any reason, financial aid or contribution from individuals, and from public or private institutions, save for the exceptions set forth in law;
8. practice law in the court or tribunal on which they served as judges, for a period of three years following their retirement or discharge.

Article 96. It is of the exclusive competence of

1. the courts:

a) to elect their directive bodies and to draw up their internal regulations, in compliance with the rules of proceedings and the procedural guarantees of the parties, and regulating the competence and the operation of the respective jurisdictional and administrative bodies; b) to organize their secretariats and auxiliary services, as well as those of the tribunals connected with them, guaranteeing the exercise of the respective inspection activities; c) to fill, under the terms of this Constitution, offices of career judges within their respective jurisdiction; d) to propose the creation of new courts of first instance; e) to fill, by means of a civil service entrance examination of tests, or of tests and presentation of academic and professional credentials, according to the provisions of article 169, sole paragraph 3 , the offices required for the administration of justice, except for the positions of trust as defined in law; f) to grant leave, vacations and other absences to their members and to the judges and employees who are immediately subordinated to them; 2. the Supreme Federal Court, the Superior Courts and the Courts of Justice, to propose to the respective Legislative Power, with due regard for the provisions of article 169: a) alteration in the number of members of the lower courts; b) creation and abolishment of offices and the remuneration of the auxiliary services and of the courts connected with them, as well as the establishment of the compensation for their members and for the judges, including those of the lower courts, if existing; c) creation or abolishment of lower courts; d) alteration of the judicial organization and division;

3. the Courts of Justice, to try judges of the states, of the Federal District and of the Territories, as well as members of the Public Prosecution, for common crimes and crimes of malversation, except in those cases within the competency of the Electoral Courts.

Article 97. The courts may declare a law or a normative act of the Government unconstitutional only by the vote of the absolute majority of their members or of the members of the respective special body.

Article 98. The Union, in the Federal District and in the territories, and the states shall create:

1. special courts, filled by togated judges, or by togated and lay judges, with powers for conciliation, judgement and execution of civil suits of lesser complexity and criminal offenses of lower offensive potential, by oral and summary proceedings, allowing, in the cases established in law, the settlement and judgement of appeals by panels of judges of first instance
2. remunerated justice of peace, formed by citizens elected by direct, universal and secret vote, with a term of office of four years and competence to, under the terms of the law, perform marriages, examine qualification proceedings, ex officio or in view of the presentation of a challenge, and exercise conciliatory functions, of a non-jurisdictional nature, besides others established by law.

Paragraph 1. Federal legislation shall provide for the establishment of special courts within Federal Justice.

Paragraph 2. Judicial costs and fees shall be assigned exclusively to fund services related to activities which are specific of Justice.

Article 99. The Judicial Power is ensured of administrative and financial autonomy.

Paragraph 1. The courts shall prepare their budget proposals, within the limits stipulated jointly with the other Powers in the law of budgetary directives.

Paragraph 2. The proposal shall, after hearing the other interested courts, be forwarded:

1. at the federal level, by the presidents of the Supreme Federal Court and of the Superior Courts, with the approval of the respective courts;
2. at the level of the states and of the Federal District and the territories, by the presidents of the Courts of Justice, with the approval of the respective courts.

Paragraph 3. If the government bodies referred to in paragraph 2 do not forward their respective budget proposals within the time period stipulated in the law of budgetary directives, the Executive Power shall, with a view to engrossing the annual budget proposal, take into account the figures approved in the current budgetary law, such figures adjusted in accordance with the limits stipulated under the terms of paragraph 1 of this article.

Paragraph 4. If the budget proposals referred to in this article and thus forwarded do not obey the limits stipulated under paragraph 1, the Executive Power shall effect the necessary adjustments with a view to engrossing the annual budget proposal.

Paragraph 5. In the implementation of the budget of a specific fiscal year, no expenses may be incurred and no obligations may be assumed that exceed the limits stipulated in the law of budgetary directives, except when previously authorized, by opening supplementary or special credits.

Article 100. Payments owed by the federal, state, Federal District, or municipal treasuries, by virtue of a court decision, shall be made exclusively in chronological order of submission of court orders and charged to the respective credits, it being forbidden to designate cases or persons in the budgetary appropriations and in the additional credits opened for such purpose.

Paragraph 1. Support-related debts include those arising from wages, salaries, pay, pensions, and their supplementations, social security benefits and compensation for death and disability, such compensation being based on civil liability, by virtue of a final and unappealable judicial decision, and shall be paid before any other debts, except those referred to in Paragraph 2 of this article.

Paragraph 2. Support-related debts owed to persons aged 60 (sixty) or over on the date the respective court order is issued, or to persons with serious diseases, as defined by law, shall be paid before any other debts, up to an amount equivalent to three times the amount stipulated by law for the purposes of Paragraph 3 of this article, parceling for such end being permitted, whereas the remaining amount shall be paid according to the chronological order of submission of respective court order.

Paragraph 3. The provision contained in the head paragraph of this article, regarding the issuance of court orders, does not apply to obligations defined by law as small amounts, which must be paid by the treasuries herein referred to by virtue of a final and unappealable court decision.

Paragraph 4. For the purposes of the provision of Paragraph 3, different amounts may be stipulated for the federating units through their own legislation and according to their various economic capabilities, whereas the minimum amount shall be equal to the amount of the highest benefit paid by the general Social Security scheme.

Paragraph 5. It is mandatory for the budgets of the federating units to include the funds required for payment of debts arising from final and unappealable judicial decisions, stated in court orders submitted until or on July 1, and payment shall be made before the close of the subsequent fiscal year, on which date their amounts shall be adjusted for inflation.

Paragraph 6. The budgetary allocations and the credits opened shall be assigned to the Judicial Power, it being within the competence of the Presiding Judge of the Court which rendered the decision of execution to determine full payment and to authorize – upon petition of a creditor and exclusively in the event that his right of precedence is not respected or that the amount necessary to satisfy the debt has not been set aside – attachment of the respective amount.

Paragraph 7. The Presiding Judge of the appropriate Court who, by means of an act or omission, delays or attempts to frustrate the regular payment of a court-ordered debt shall be liable to crime of malversation and shall also appear before the National Council of Justice.

Paragraph 8. The issuance of a court order as a supplementation to or in addition to an amount already paid, as well as the parceling, apportionment, or reduction of the amount under execution – so that the provision of Paragraph 3 may be applied to a portion of the total amount – are forbidden.

Paragraph 9. At the time a court order is issued, irrespective of the relevant regulation, there shall be deducted from such court order, for the purpose of a set-off, an amount corresponding to clear legal debits, either registered or not under debts in execution and attributed to the original creditor by the Treasury in debt, including future accruing installments of parcelings, save for those whose execution has been stayed by virtue of administrative or judicial challenge.

Paragraph 10. Before a court order is issued, the relevant court shall request that the Treasury in debt must provide, within 30 (thirty) days, otherwise subject to loss of the right to offset, information on the debits which meet the conditions stipulated in Paragraph 9, for the purposes set forth in said Paragraph.

Paragraph 11. In accordance with legislation of the federating unit in debt, a creditor may employ court order credits to purchase public property belonging to the respective federating unit.

Paragraph 12. As from the date Constitutional Amendment no. 62 is enacted, the amounts stated in court orders, after such court orders are issued up until effective payment, irrespective of their nature, shall be adjusted according to the official rate applied to savings accounts, whereas, for the purpose of compensation of delay in the payment, simple interest will be applied at the same percentage of interest applied to savings accounts, the employment of compensatory interest being excluded.

Paragraph 13. Creditors may assign their court order credits, in whole or in part, to third parties, irrespective of consent by the debtor, and the provisions of Paragraphs 2 and 3 shall not be applied to the assignee.

Paragraph 14. Assignment of court order credits shall only produce effects after communication to the court of origin and to the federating unit in debt by filing a relevant petition.

Paragraph 15. Without prejudice to the provisions of this article, a supplementary law to this Federal Constitution may establish a special regime for the payment of court-ordered debts owed by States, the Federal District, and Municipalities, providing for earmarked net current revenues and for payment term and methods. Paragraph 16. The Federal Government may, at its own discretion and under the terms of relevant law, take on debts resulting from court orders issued against a State, the Federal District, or a Municipality, and refinance them directly.