The Supreme Federal Court

14 minutes • 2916 words

Article 101. The Supreme Federal Court is composed of eleven Justices, chosen from among citizens over 35 and under sixty-five years of age, of notable juridical learning and spotless reputation.

The Justices of the Supreme Federal Court shall be appointed by the President of the Republic, after their nomination has been approved by the absolute majority of the Federal Senate.

Article 102. The Supreme Federal Court is responsible, essentially, for safeguarding the Constitution, and it is within its competence:

to institute legal proceeding and trial, in the first instance, of:

a) direct actions of unconstitutionality of a federal or state law or normative act, and declaratory actions of constitutionality of a federal law or normative act
b) in common criminal offenses, the President of the Republic, the Vice-President, the members of the National Congress, its own Justices and the Attorney-General of the Republic
c) in common criminal offenses and crimes of malversation, the Ministers of State and the Commanders of the Navy, the Army, and the Air Force, except as provided in article 52, I, the members of the Superior Courts, those of the Federal Audit Court and the heads of permanent diplomatic missions
d) habeas corpus, when the petitioner is any one of the persons referred to in the preceding subitems; the writ of mandamus and habeas data against acts of the President of the Republic, of the Directing Boards of the Chamber of Deputies and of the Federal Senate, of the Federal Audit Court, of the Attorney-General of the Republic and of the Supreme Federal Court itself
e) litigation between a foreign State or an international organization and the Union, a state, the Federal District or a territory
f) disputes and conflicts between the Union and the states, the Union and the Federal District, or between one another, including the respective indirect administration bodies
g) extradition requested by a foreign state
i) habeas corpus, when the constraining party is a Superior Court, or when the constraining party or the petitioner is an authority or employee whose acts are directly subject to the jurisdiction of the Supreme Federal Court, or in the case of a crime, subject to the same jurisdiction in one sole instance
j) criminal review of and actions to overrule its final judgements
l) claims for the preservation of its powers and guarantee of the authority of its decisions
m) enforcement of court decisions in the cases where it has original competence, the delegation of duties to perform procedural acts being allowed
n) a suit in which all members of the judicature are directly or indirectly involved, and a suit in which more than half of the members of the court of origin are disqualified or have a direct or indirect interest
o) conflicts of powers between the Superior Court of Justice and any other courts, between Superior Courts, or betweeen the latter and any other court
p) petitions of provisional remedy in direct actions of unconstitutionality
q) writs of injunction, when drawing up of the regulation is the responsibility of the President of the Republic, of the National Congress, of the Chamber of Deputies, of the Federal Senate, of the Directing Boards of one of these legislative houses, of the Federal Audit Court, of one of the Superior Courts, or of the Supreme Federal Court itself; r) lawsuits against the National Council of Justice and against the National Council of the Public Prosecution;

to judge on ordinary appeal: a) habeas corpus, writs of mandamus, habeas data and writs of injunction decided in a sole instance by the Superior Courts, in the event of a denial; b) political crimes;
to judge, on extraordinary appeal, cases decided in a sole or last instance, when the decision appealed: a) is contrary to a provision of this Constitution; b) declares a treaty or a federal law unconstitutional; c) considers valid a law or act of a local government contested in the light of this Constitution; d) considers valid a local law challenged in the light of a federal law. Paragraph 1. A claim of non-compliance with a fundamental precept deriving from this Constitution shall be examined by the Supreme Federal Court, under the terms of the law. Paragraph 2. Final decisions on merits, pronounced by the Supreme Federal Court, in direct actions of unconstitutionality and declaratory actions of constitutionality shall have force against all, as well as a binding effect, as regards the other bodies of the Judicial Power and the governmental entities and entities owned by the Federal Government, in the federal, state, and local levels. Paragraph 3. In an extraordinary appeal, the appealing party must demonstrate the general repercussion of the constitutional issues discussed in the case, under the terms of the law, so that the Court may examine the possibility of accepting the appeal, and it may only reject it through the opinion of two thirds of its members. Article 103. The following may file direct actions of unconstitutionality and declaratory actions of constitutionality: (CA No. 3, 1993; CA No. 45, 2004)
the President of the Republic;
the directing board of the Federal Senate;
the directing board of the Chamber of Deputies;
the Directing Board of a State Legislative Assembly or of the Federal District Legislative Chamber;
a State Governor or the Federal District Governor;
the Attorney-General of the Republic;
the Federal Council of the Brazilian Bar Association;
a political party represented in the National Congress;
a confederation of labour unions or a professional association of a nationwide nature.

Paragraph 1. The Attorney-General of the Republic shall be previously heard in actions of unconstitutionality and in all suits under the power of the Supreme Federal Court.

Paragraph 2. When unconstitutionality is declared on account of lack of a measure to render a constitutional provision effective, the competent Power shall be notified for the adoption of the necessary actions and, in the case of an administrative body, to do so within thirty days.

Paragraph 3. When the Supreme Federal Court examines the unconstitutionality in abstract of a legal provision or normative act, it shall first summon the Advocate- General of the Union, who shall defend the impugned act or text.

Article 103-A. The Federal Supreme Court may, ex-officio or upon request, upon decision of 2/3 of its members, and following reiterated judicial decisions on constitutional matter, issue a summula (restatement of case law) which, as from publication in the official press, shall have a binding effect upon the lower bodies of the Judicial Power and the direct and indirect public administration, in the federal, state, and local levels, and which may also be reviewed or revoked, as set forth in law.

Paragraph 1. The purpose of a summula is to validate, construe, and impart effectiveness to some rules about which there is a current controversy among judicial bodies or among such bodies and the public administration, and such controversy brings about serious juridical insecurity and the filing of multiple lawsuits involving similar issues.

Paragraph 2. Without prejudice to the provisions the law may establish, the issuance, review, or revocation of a summula may be requested by those who may file a direct action of unconstitutionality.

Paragraph 3. An administrative act or judicial decision which contradicts the applicable summula or which unduly applies a summula may be appealed to the Supreme Federal Court, and if the appeal is granted, such Court shall declare the administrative act null and void or overrule the appealed judicial decision, ordering that a new judicial decision be issued, with or without applying the summula, as the case may be.

Article 103-B. The National Council of Justice is composed of 15 (fifteen) members appointed for a two-year term of office, one reappointment being permitted, as follows:

the Chief Justice of the Supreme Federal Court; 84 Court;
a Justice of the Superior Court of Justice, nominated by said Court;
a Justice of the Superior Labour Court, nominated by said Court;
a judge of a State Court of Justice, nominated by the Supreme Federal
a state judge, nominated by the Supreme Federal Court;
a judge of a Federal Regional Court, nominated by the Superior Court of Justice;
a federal judge, nominated by the Superior Court of Justice;
a judge of a Regional Labour Court, nominated by the Superior Labour Court;
a labour judge, nominated by the Superior Labour Court;
a member of the Public Prosecution of the Union, nominated by the Attorney-General of the Republic;
a member of a state Public Prosecution, chosen by the Attorney-General of the Republic from among the names indicated by the competent body of each state institution;
two lawyers, nominated by the Federal Board of the Brazilian Bar Association;
two citizens of notable juridical learning and spotless reputation, one of whom nominated by the Chamber of Deputies and the other one by the Federal Senate. Paragraph 1. The Council shall be presided over by the Chief Justice of the Supreme Federal Court and, in the event of his absence or impediment, by the most senior Associate Justice of the Supreme Federal Court. Paragraph 2. The other members of the Council shall be appointed by the President of the Republic, after their nomination has been approved by the absolute majority of the Federal Senate. Paragraph 3. If the nominations set forth in this article are not effected within the legal deadline, selection shall be incumbent upon the Federal Supreme Court. Paragraph 4. It is incumbent upon the Council to control the administrative and financial operation of the Judicial Branch and the proper discharge of official duties by judges, and it shall, in addition to other duties that the Statute of the Judicature may confer upon it:
ensure that the Judicial Branch is autonomous and that the Statute of the Judicature is complied with, and it may issue regulatory acts within its jurisdiction, or recommend measures;
ensure that article 37 is complied with, and examine, ex-officio or upon request, the legality of administrative acts carried out by members or bodies of the Judicial Branch, and it may revoke or review them, or stipulate a deadline for the adoption of the necessary measures to achieve due execution of the law, without prejudice to the powers of the Federal Audit Court;
receive and examine complaints against members or bodies of the Judicial Branch, including against its ancillary services, clerical offices, and bodies in charge of notary and registration services which operate by virtue of Government delegation or have been made official, without prejudice to the courts’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the National Council of Justice, determine the removal, placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full defense being ensured;
present a formal charge to the Public Prosecution, in the case of crime against public administration or abuse of authority;
review, ex-officio or upon request, disciplinary proceedings against judges and members of courts tried in the preceding twelve months;
prepare a twice-a-year statistical report on proceedings and judgements rendered per unit of the Federation in the various bodies of the Judicial Branch;
prepare a yearly report, including the measures it deems necessary, on the state of the Judicial Branch in the Country and on the Council’s activities, which report must be an integral part of a message to be forwarded by the Chief Justice of the Supreme Federal Court to the National Congress upon the opening of the legislative session. Paragraph 5. The Justice of the Superior Court of Justice shall occupy the position of Corregidor-Justice, in charge of internal affairs, and he shall be excluded from the assignment of proceedings in said Court, the following duties being incumbent upon him, in addition to those that may be conferred upon him by the Statute of the Judicature:
to receive complaints and accusations from any interested party regarding judges and judiciary services;
to exercise executive functions of the Council concerning inspection and general correction;
to requisition and appoint judges, charging them with specific duties, and to requisition court employees, including in the States, the Federal District, and the Territories. Paragraph 6. The Attorney General of the Republic and the Chairman of the Federal Board of the Brazilian Bar Association shall be competent to petition before the Council. Paragraph 7. The Union shall establish Justice ombudsman’s offices, including in the Federal District and in the Territories, with powers to receive complaints and accusations from any interested party against members or bodies of the Judicial Branch, or against their ancillary services, thus presenting formal charges directly to the National Council of Justice.

Section 3: The Superior Court of Justice

Article 104. The Superior Court of Justice is composed of a minimum of 33 Justices.

The Justices of the Superior Court of Justice shall be appointed by the President of the Republic chosen from among Brazilians over 35 and under 65 years of age, of notable juridical learning and spotless reputation, after the nomination has been approved by the absolute majority of the Federal Senate, as follows:

1/3 shall be chosen from among judges of the Federal Regional Courts and 1/3 from among judges of the Courts of Justice, nominated in a list of three names prepared by the Court itself;
one-third, in equal parts, shall be chosen from among lawyers and members of the Federal Public Prosecution, the Public Prosecution of the states, the Public Prosecution of the Federal District and the Territories, alternately, nominated under the terms of article 94.

Article 105. The Superior Court of Justice has the competence to:

institute legal proceeding and trial, in the first instance, of: a) in common crimes, the Governors of the states and of the Federal District, and, in such crimes and in crimes of malversation, the judges of the Courts of Justice of the states and of the Federal District, the members of the Audit Courts of the states and of the Federal District, those of the Federal Regional Courts, of the Regional Electoral and Labour Courts, the members of Audit Councils or Courts of the municipalities and the members of the Public Prosecution of the Union who act before courts b) writs of mandamus and habeas data against an act of a Minister of State, of the Commanders of the Navy, the Army, and the Air Force, or of the Court itself; c) habeas corpus, when the constraining party or the petitioner is any of the persons mentioned in subitem a, or when the constraining party is a court subject to its jurisdiction, a Minister of State or Commander of the Navy, the Army, or the Air Force, except for the competence of the Electoral Courts d) conflicts of competence between any courts, except as provided in article 102, I, o, as well as between a court and the judges not subject to it and between judges subject to different courts e) criminal review of and actions to overrule its final judgements f) claims for the preservation of its competence and guarantee of the authority of its decisions g) conflicts of duties between administrative and judicial authorities of the Union, or between judicial authorities of one state and administrative authorities of another or of the Federal District, or between those of the latter and those of the Union; h) writs of injunction, when the drawing up of a regulation is the responsibility of a federal body, entity, or authority, of the direct or indirect administration, with the exception of the cases within the competence of the Supreme Federal Court and of the bodies of the Military Justice, of the Electoral Justice, of the Labour Justice and of the Federal Justice; i) the homologation of foreign court decisions and the granting of exequatur to letters rogatory;
judge, on ordinary appeal: a) habeas corpus decided in a sole or last instance by the Federal Regional Courts or by the courts of the states, of the Federal District and the Territories, in the event of a denial b) writs of mandamus decided in a sole instance by the Federal Regional Courts or by the courts of the states, of the Federal District and the Territories, in the event of a denial c) cases in which the parties are a foreign state or international organization, on the one part, and a municipality or a person residing or domiciled in the country, on the other part
judge, on special appeal, the cases decided, in a sole or last instance, by the Federal Regional Courts or by the courts of the states, of the Federal District and the Territories, when the decision appealed: a) is contrary to a treaty or a federal law, or denies it effectiveness; b) considers valid an act of a local government challenged in the light of a federal law c) confers upon a federal law an interpretation different from that which has been conferred upon it by another court. The following shall operate in conjunction with the Superior Court of Justice:
the National School for the Education and Further Development of Judges, which shall be in charge, among other duties, of regulating the official courses for admission into and promotion in the career
the Council of Federal Justice, which shall, under the terms of the law, exercise administrative and budgetary supervision over the Federal Courts of first and second instances, in the quality of the main body of the system, having powers to correct administrative acts, and whose decisions shall have a binding nature.