Legal systems in Brazil: overview

Brazil has a formal, written constitution, recorded in a single document, which was enacted in 1988 and since then has been amended by 106 constitutional amendments. The Federal Constitution is the supreme law of the land and no law or regulation can contradict it. The Federal Constitution is extensive, containing 250 Articles. It provides, among other things, for: many rights and guarantees; a division of tasks between the federation, states and municipalities; and a division of powers between the executive, judicial and legislative branches.

The Federal Constitution contains some provisions that are considered permanent and cannot be amended:

Other constitutional provisions may be amended by a long and complex legislative process, including a decision by a qualified quorum in Congress.

Each Brazilian state also has its own state constitution. The Federal Constitution provides for the autonomy of each state, which includes self-organisation, self-legislation (whenever the subject is not restricted to federal law), self-government and self-management, all with due respect to the provisions of the Federal Constitution. These matters are addressed in each state's own constitution.

Brazil is a federative and presidential republic. The government is secular and is headed by the President. The government is independent of any religious group or organisation.

The President is the head of state, holding executive power and representing the country at official events.

The executive branch is divided into three levels: federal, state and municipal. The executive branch is headed by the President at the federal level, governors at state level and mayors at municipal level.

At the federal level, the legislative power is bicameral. Congress is divided into the Senate (composed of 81 senators) and the House of Representatives (composed of 513 deputies). Legislative powers at state and municipal levels are held by one entity at each level.

Judicial power is divided into lower courts, courts of appeals and superior courts. The Supreme Court, sitting in the capital Brasília, is the highest court and only reviews constitutional matters.

The federal constitution provides for a separation of powers between the executive, judicial and legislative branches.

There are certain checks and balances to allow each power to oversee the others and to avoid abuses of power. Some examples are:

Bills of law may be proposed by:

Bills of law must be approved by both houses and sanctioned by the President. Either house can propose a bill; once that house approves the bill, it will be sent to the other house for approval (see below).

Bills must be reviewed by at least two commissions:

The bill is then put forward to the members of the house to vote on. Voting on ordinary laws can only take place if the majority of deputies or senators are present. The bill is approved on the favourable vote of the majority of those present. Certain matters (such as the creation of territories and granting states the authority to legislate on matters that are under the federal government’s competence) must be the subject of supplementary laws, which aim to supplement constitutional provisions. Supplementary laws must be approved by the majority of all deputies or senators, and not just of the majority of those present.

If a bill is rejected, it is filed and another bill with the same purpose can only be proposed in the same legislative period if approved by the majority of votes in one of the houses of Congress.

If a bill is approved by the first house, the bill is submitted for approval by the second house. If it is amended by the second house, it will be returned to the first house for approval of the amended section.

Once approved by both houses of Congress, the bill is submitted to the President for sanctioning. The President must review the constitutionality of the bill and ascertain whether it is in the public interest to enact the law. The President may veto the bill in whole or in part. If the President vetoes the bill, Congress will hold a special joint session to discuss whether to overturn the presidential veto. A quorum of the majority of all senators and deputies is required to do this. If the President does not either approve or veto the bill in 15 days, the bill will be considered approved.

Laws are enacted by the President and then published in the Official Gazette. Some laws may contain a vacatio legis, that is, a given period of time following publication in the Official Gazette in which the general public may become better acquainted with the contents of the law before it becomes fully effective.

The Brazilian judiciary can only act when prompted to do so by a person or entity. The control of constitutionality of laws and executive actions and rules by the judiciary can occur either in a diffused or concentrated manner.

This occurs when lower court judges decide, when judging a claim, whether or not to apply a law or regulation. This decision only affects the parties to the case, and so the law or regulation will not be automatically applied or disapplied to third parties. Third parties must file their own claims, and can only use the decision as a precedent.

The concentrated control of constitutionality is effected by specific judicial claims, the effects of which apply to all persons. These claims may only be filed by the following persons:

In certain urgent cases, the President can enact provisional measures which have the effect of law. While provisional measures can come into effect immediately, they are subject to approval by Congress. Congress has 60 days, which may be extended for another 60 days, to review the provisional measure and decide whether or not it will become law.

If Congress has not made a decision within 45 days of issue of a provisional measure, all other votes in each house of Congress will be suspended until the provisional measure is voted on.

If the provisional measure is rejected by Congress, the legal framework goes back to its original state before the issue of the provisional measure. In this case, the President may not reissue the provisional measure within the same legislative session.

The Federal Constitution defends fundamental rights and guarantees. It deals with individual, collective, social and political rights. The constitutional provisions regarding individual rights and guarantees cannot be amended. As part of the Federal Constitution, these rights take priority over any law or regulation. International treaties signed by Brazil addressing human rights, after being duly approved by Congress, ratified and enacted by the President (as well as published in the Official Gazette) are put on a par with the constitution.

Among other human rights, the Federal Constitution:

Amendments to the constitution may be proposed by either:

Amendments must be approved by Congress, first by the House of Representatives and then by the Senate, with the positive vote of at least three-fifths of all members of each house. If rejected, the amendment cannot be proposed again in the same legislative period.

There cannot be any amendments to the Federal Constitution while the country is under federal intervention, a state of siege or a state of defence.

Federal intervention is an exceptional and temporary measure which takes away the states’ and municipalities’ autonomy. It can only happen if there is coercion of the judicial power, to ensure its free exercise, when a judicial order or decision is not complied with, or when required by the Attorney General.

A state of siege is an emergency measure whereby the President temporarily suspends the powers of the judiciary and the legislature.

A state of defence is an emergency measure taken, for example, when there is a calamity, whereby the President may, temporarily suspend the rights to confidentiality of mail and telephone and telegraphic communications, among other measures.

The Federal Constitution contains certain provisions (cláusulas pétreas, or stone-embedded clauses) which are considered to be permanent and which cannot be amended (see Question 1).

Brazil adopts a civil law system, based on the Roman-Germanic tradition. Although custom and case law are part of the legal framework, written law prevails over them from an interpretive point of view. Federal law provides that a judge can only resort to analogy, custom and general principles of law if the law is silent on a matter. Parties to arbitration can freely choose the body of laws and norms to govern the resolution of a dispute, including general principles of international trade law.

The Federal Constitution is the highest law and no other legal provision can contradict it. Each state has its own constitution, and state and municipal laws cannot contradict their respective state constitutions.

Laws are divided into:

Laws are created at federal, state and municipal levels. The Federal Constitution provides for matters that must be the subject of federal laws, those which may be the subject of either federal or state laws, and those which should be regulated by municipal laws.

When both the federation and the states are to regulate a matter, the federal law should create general concepts and guidelines, while the state law should regulate the details.

The executive branch may issue decrees to regulate matters provided for in law.

Governmental entities and agencies can also issue administrative norms to regulate in greater detail matters under their jurisdiction. Such administrative norms are prohibited from modifying laws enacted by the legislature.

International treaties signed by Brazil are incorporated into the Brazilian legal system after their text is approved by Congress and then ratified and enacted by the President. They are then published in the Official Gazette. International treaties addressing human rights issues are considered as having the same authority as the Federal Constitution. Treaties tackling tax issues have the same authority as supplementary laws and all other treaties and conventions are put on a par with ordinary laws.

An international treaty incorporated into the Brazilian legal system revokes an existing law of the same hierarchy addressing the same subject matter. If a law of equal hierarchy and subject matter is enacted after the international treaty becomes law, the new law will supersede the treaty. This may occur even before Brazil has formally withdrawn from the treaty.

Brazilian courts are divided into federal and state courts. Federal courts have jurisdiction whenever the government or a governmental company or entity are a party to the claim. The labour, electoral and military courts deal with specialised matters.

All branches of the Brazilian judiciary are divided into lower courts and courts of appeal. The specialised courts also have their own specific superior courts. For the labour courts this is the Superior Labour Court, for the electoral courts it is the Superior Electoral Court and for the military courts it is the Superior Military Court.

Two higher courts are hierarchically superior to all other courts:

These courts do not review any factual matters, but rather whether the lower courts have correctly interpreted the federal constitution or federal law.

Generally, lower courts are free to decide claims regardless of the decisions issued by superior courts. However, in 2006, the Federal Constitution was amended to allow the Supreme Court to issue binding precedents regarding matters which it has repeatedly reviewed. If the binding precedent is ignored by a lower court, the Supreme Court may be petitioned directly.

The issue of a binding precedent requires approval of at least two-thirds of the Supreme Court justices, and is subject to the same control of constitutionality as all laws.

Federal courts have jurisdiction to rule on civil and criminal matters relating to the government or public entities, foreign governments or organisations, political crimes, the rights of indigenous people and so on.

Labour courts rule on individual and collective claims between workers and employers, even if the employer is a governmental entity. Labour courts include lower courts, regional courts of appeal and the Superior Labour Court. Labour courts tend to favour employees.

Electoral courts protect the constitutional right to a direct and secret vote. They are in charge of organising, monitoring and overseeing elections, and rule on irregularities in campaigning and the conduct of elections. The Supreme Court recently decided that crimes relating to electoral illegalities will be ruled upon by electoral courts. They are composed of lower courts, courts of appeal and the Superior Electoral Court.

The military courts have jurisdiction over military crimes. There are lower courts, courts of appeals and the Superior Military Court.

The decisions of certain governmental bodies can be appealed to tribunals. For example, a fine issued by a tax authority can be appealed to the corresponding administrative tribunal. However, the existence of such administrative tribunals does not exclude the jurisdiction of the courts and there is no obligation to litigate before an administrative tribunal before accessing judicial courts.

The government has created an official online platform to mediate complaints between companies and consumers. While most sectors of the economy are not legally required to enrol, it is strongly encouraged as a means to reduce litigation. There are administrative level entities that mediate consumer relations, which can apply penalties to companies. All such penalties may be reviewed in court.

The judiciary is independent but subject to the Brazilian system of checks and balances. Arbitration and mediation are both formally recognised and accepted by Brazilian law. If parties contractually agree to resort to arbitration, the commitment will be binding and they can resort to the judiciary only for injunctive relief and to annul or enforce the arbitral award.

All judges must hold a Bachelor of Laws qualification.

Lower court judges are selected by public examination and must have at least three years' experience of legal practice. Lower court judges begin their careers as substitutes of the permanent judges, and usually work in rural areas. As the judges progress in their careers, they earn permanent chairs and tend to work their way towards the capital, are promoted to the courts of appeals and may be promoted to one of the Superior Courts.

Each federal court of appeals is composed of seven judges appointed by the President. One fifth of judges sitting in all courts of appeals must be lawyers or members of the Federal Public Prosecution Service with at least ten years of experience. The rest must be federal judges with at least five years of experience. Appointments alternate between those who earn the position on merit and those who earn it for time in office.

Judges serving on the Supreme Court and the Superior Court of Justice must have renowned legal knowledge and a sound reputation. They are appointed by the President after being approved by a majority of senators.

The Superior Court of Justice is composed of at least 33 members, of which one-third must be judges from the federal courts of appeals, one-third must be judges from the state courts of appeals and the last third must be lawyers and members of the State Public Attorney's office.

Brazilian courts use an adversarial system.

Generally, in both civil and criminal law, the person making a claim is responsible for gathering the evidence to support it. Certain exceptions apply and the burden of proof can be shifted from the claimant to the respondent, especially in consumer and labour claims.

In criminal proceedings, evidence can be produced before or during the trial. When investigating a crime, the police must collect all evidence that may shed light on what happened and the circumstances under which it happened.

In civil claims, the production of evidence occurs after the statement of claim is filed, although preliminary evidence-collecting proceedings are possible when there is a risk that the evidence will perish.

During civil and criminal trials all parties may request the production of evidence. The judge may determine what must be produced. Judicial approval is required before some types of evidence, such as recordings of telephone conversations, can be gathered. The judge can appoint experts to draft reports and review documents, to determine that the parties undergo medical examinations, to order that documents be filed and so on.

In civil trials the parties may appoint their own experts to draft reports, in addition to the court appointed expert. This is not possible in criminal trials.

There is a constitutional provision that allows the parties to a case not to produce or submit evidence that negatively impacts their case. This also means that in their depositions, the parties may omit any information that is damaging to their case. This does not apply to witnesses who are sworn in under oath and have a duty to tell the truth under penalty of committing the crime of perjury if caught lying.

There is no formal independent examination of evidence before a trial. Each party will assess its ability to prove the facts it will defend in court, and must provide the court with all existing documentary evidence when filing a claim or a statement of defence.

The Federal Constitution provides that all judicial proceedings, including trials and hearings, are open to the public, except when confidentiality is required to preserve the right to privacy or the social interest.

Proceedings must be treated as confidential if:

Criminal proceedings must be treated as confidential in the same circumstances as civil cases. Confidentiality will be determined by the presiding judge. The most common causes for treating a criminal proceeding as confidential are:

There are no legal reporting restrictions. Provided no illegal acts are committed, the press is free to publish news about ongoing, future or past litigation. The Brazilian Bar Association Statute, enacted by Law No. 8,906/1994, prohibits lawyers from publicly commenting on specific cases handled for their clients.

The main function of the trial is to record the depositions of parties, witnesses and experts. The lawyers can also provide closing statements.

In civil law, if the documentation submitted is sufficient to allow the judge to review the merits of the case and therefore the production of oral evidence is not required, the judge may opt for an early judgment, where a decision is given without holding a trial.

The main parties in a trial are the:

Lawyers must submit their questions to the opposing party, their witnesses and the judge. The judge asks the questions to the witness in the judge's own words. There is no cross-examination. The new Code of Civil Procedure, effective since 18 March 2016, contemplates the possibility of the lawyers asking the questions directly to the deponents, a procedure resembling cross-examination. Given that the tradition of asking questions through the judge is embedded in Brazilian trial custom, Brazilian courts have not widely adopted the practice of cross-examination.

Judicial power is provided for and protected by the Federal Constitution. Certain measures can only be taken with judicial authorisation. Each judge has a duty to act in a proactive manner to obtain the required information and make an adequate decision. To this end, judges may request the production of evidence, question witnesses and judge the relative strength of different pieces of evidence. Judges may grant injunctive relief and take the measures deemed required to ensure the trial is conducted properly.

Judges cannot:

Lawyers must defend their client's best interest while acting within the confines of the law. Only lawyers duly enrolled with the Brazilian Bar Association may represent clients before courts and provide legal counselling.

It is a lawyer's role to represent clients in administrative or judicial proceedings, in management meetings to assist with decision making and other tasks that require legal assistance.

There are no jury trials in civil law litigation.

Jury trials only occur in respect of wilful crimes against life, namely: homicide, abortion, encouragement or assistance to commit suicide, infanticide and genocide, including attempts to commit such crimes.

The Federal Constitution provides that no illegal evidence can be used in court. Examples of illegally obtained evidence include confessions obtained under torture, illegal phone interceptions, stolen documentary evidence, evidence obtained by trespassing, false documents, and so on.

The production of evidence must always respect the adversarial principle, that is, that all parties should have the right to be heard. Evidence from other court proceedings can be used in new court proceedings, provided the adversarial principle is observed in the new proceeding.

The Federal Constitution also provides that no one will be forced to provide evidence against themselves. A person cannot be forced to testify about a fact that may suggest they have criminal liability or that may harm their case.

No proof obtained by illegal means may be used in criminal proceedings. Evidence derived from illegally obtained evidence is also inadmissable, unless:

With a few exceptions, the party claiming a fact has the burden of proving it.

While the party claiming a fact must generally prove it, certain relationships are considered unbalanced. In these cases, the weaker party may be unable to produce the evidence, and therefore the burden of proof can be shifted. The burden of proof may be shifted, for example, for consumer and labour claims.

The prosecution must prove that the defendant is guilty.

Court proceedings can be awarded with or without prejudice. A without prejudice (decisão sem julgamento do mérito) decision will be given when certain procedural rules were not followed and this defect was not, or could not, be remedied, meaning that it was not possible to reach a decision on the merits of the case. Without prejudice decisions do not prevent the filing of a new court proceeding with the same purpose, within the applicable statute of limitation.

However, a judicial decision that does review the merits of the case can only be questioned on appeal. A new court proceeding with the same purpose may not be filed. Extraordinarily, judicial awards can be modified by means of a rescissory action, but only in those cases where there is a violation of the appropriate proceedings.

A definitive award will either recognise or deny a party's supposed right, and may determine the consequences arising from such recognition or denial.

The judge or jury may find the defendant guilty or not guilty.

A judge may:

If the defendant is found guilty, they may be sentenced to:

The death penalty is only permitted in times of war and must be authorised by the President. Life imprisonment is not permitted in Brazil.