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Jurisprudence Print

Selected Decisions

With the adoption of a new Constitution, prior law inconsistent with is considered abrogated, not unconstitutional. 

ADI 2 Justice Gazette (Diário da Justiça) 21/11/1997

The National Federation of Teaching Establishments (Federação Nacional de Estabelecimentos de Ensino – FENEN) filed a Direct Unconstitutionality Action before the Federal Supreme Court against legislation relating the prices charged by such establishments (Articles 1 and 3 of Decree-Law 532/1969 and Articles 2 and 5 of Decree 95921/1988). The plaintiff claimed that those provisions were inconsistent with the (then recent) 1988 Constitution and therefore demanded that they be declared unconstitutional. The Plenary of the Court examined whether the advent of a new Constitution repeals or renders unconstitutional prior law that is inconsistent with the Constitution. The Court reviewed the thesis of simple repeal and of subsequent unconstitutionality.

The theory of the unconstitutionality of law presupposes that a Constitution be in force, which limits the powers of the State and establishes its responsibilities and competences. The law is deemed unconstitutional when written by a Power which oversteps the limits established in the Constitution in force at that moment, proceeding in a manner that is alien to its constitutional competences.The advent of a new Constitution does not have the capacity of rendering unconstitutional a law that was consistent with the previous one. Unconstitutionality is always congenital, never subsequent. Thus, the decision does not nullify a previouslyvalid law, but only declares the pre-existing flaw.

Full text in Portuguese

 

The contracts agreed between the State of Mato Grosso and private entities, in which the domain of public lands was granted in order to colonize them, breach the Federal Constitution of 1946, which then was in force. The lands granted were above ten thousand hectares and, in such cases, the Federal Senate should have previously authorized the granting of lands. Despite this, to declare the nullity of contracts 59 years after they were signed is impossible, otherwise the principles of the legal certainty and of the protection of the reliability could be violated, because the colonization along the years was consolidated, based on the good faith and in the conviction that the contracts were valid

ACO 79 - Official Gazette, 28.05.2012

An original civil action was filed by the Federal Government to declare the nullity of contracts, in which the State of Mato Grosso granted to some private entities the concession of the domain of public lands, once the lands granted were above ten thousand hectares and, in such cases, the Federal Senate should have previously authorized the granting, in accordance to article 156.§ 2º of the Federal Constitution of 1946, then in force.

The Brazilian Federal Supreme Court, by majority, denied the action. Firstly, the Court acknowledge that the contracts breached the rule on article 156.§ 2º of the Federal Constitution of 1946. The evidence showed that, until December 1, 1954, about two hundred thousand hectares of public land were donated to companies and more than ten thousand, to colonizers, without the previous authorization of the Federal Senate, which was required whenever more than ten thousand hectares of public land was granted or sold. The Court emphasized that, through such “colonization contracts”, the State of Mato Grosso handed the domain of public lands to companies that were obliged to people and to manage the selling of such lands to colonizers. On the other hand, these companies should develop the infrastructure and should give a parcel of the amount raised to the State. Despite the benefits of this policy, which contributed to people the inner areas of the country, these benefits did not overcome the mandatory constitutional rule.  

But, the Court stressed that the contracts were signed by one state of the federation; thence, contracting parties presumed that they were legal. As the decision on this action occurred 59 years after these contracts were confirmed, many others were signed, following them, providing land for families and, as a result, cities, airports and other infrastructure were created, spanning an area of almost four millions hectares. Thus, the declaration of nullity could revert or weaken this condition, which was stabilized with the passage of time. Accordingly, the Court decided to uphold these contracts, in accordance with the principle of legal certainty, in order to protect the reliability and the good faith of citizens. Although the contracts were upheld, overcoming the unconstitutionality, the Court stated that this would not validate other contracts, such as those dealing with the occupation of natives’ lands or unproductive farms, because these were not the subject of this action and they must be discussed in their proper context.

In separate opinions, dissenting Justices stated that the passage of time could not overcome the constitutional rule that established the previous authorization by the Senate. This rule is so relevant that it was reproduced in the following Constitutions, including the in force Constitution of 1988. This Constitution transferred the previous authorization to the National Congress and reduced the limit of the lands to two thousand five hundreds hectares (article 49.XVIII). Furthermore, there was not a clear explanation on who was benefitted with these contracts, colonizers or big companies and big landowners.

 

Full text in Portuguese

 

          The Judicial Branch cannot review the political decision to divert water from the San Francisco River. It can only verify the compliance with the conditions of the project prior license. In addition, the National Congress does not need to authorize the project, since it does not involve water from an indigenous community.

ACO 876 MC-AgR - Official Gazette, 01.08.2008

This case refers to an internal interlocutory appeal filed by the Federal Prosecution Office against decision that denied the preliminary injunction on a civil action in order to stop the Integration Project of São Francisco River with the watersheds of the north region of the Northeast of Brazil. This project aims at diverting part of the natural course of the river, to meet the demand for water resources in the so called drought polygon region of Brazil. The appellant argued the possibility of irreversible environmental damages, given the irregularities on the project license, and the lack of the National Congress authorization, as part of the collected water would be extracted from sources close to some indigenous communities.   

The Brazilian Federal Supreme Court, by majority, denied the internal interlocutory appeal. The Court found that it was proved that, from the 31 conditions established on the prior project license, 25 had been strictly observed by the Federal Government and the Brazilian Institute o Environment (IBAMA, in the Portuguese acronym), only 5 items were partially fulfilled, what authorizes the granting of the installation license to the beginning of the project. The Court found also that several plans and programs were elaborated to enable the work and to ensure the protection of the environment. Furthermore, the Court noted that although the success of the project requires the State effective monitoring, the Judiciary Power should not interfere in the project conduction, nor stand in favor or against the decision to divert part of São Francisco river, since such measures are within the scope of the Executive Branch typical activity. Such interference is only justified if there were legal or constitutional violations, which had not been demonstrated.

Finally, the Court decided that the National Congress authorization (articles 49.XVI and 231.§3 of the Constitution) would only be required if the project had taken advantage of water resources located within Indian lands. In the case, it had not been proved that this would happen, but only that the water would be captured from a source located 100 meters from the nearest Indian community.

In a separate opinion, the Justice argued that due to the size of some projects, a previous authorization of the National Congress would always be needed (articles 48.IV; 58.§2; 165.§4 of the Federal Constitution). Moreover, as the environmental impacts of the project would still be uncertain and may be irreversible, the precautionary principle would require that when in doubt, the project should be stopped.

 

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The Provisional Presidential Decree, issued to tackle the Brazilian electricity crisis of 2000 and 2001, was constitutional. It established a program of targets for electricity rationing, according to the consumption average, and also established the payment of a special fee for those who did not reach the targets, allowing the suspension of the electric power supply in case of recurrence.

ADC 09 - Official Gazette, 23.04.2004

This case refers to a direct action of unconstitutionality filed by the President of Brazil in order to declare constitutional the articles 14, 15, 16, 17 and 18 of the Provisional Presidential Decree 2.152-2/2001. Due to the lack of rainfall between 2000 and 2001, the water level in the hydroelectric reservoirs of the country lowered beyond the minimum, making it impossible to generate enough electric power. As a result, the Federal Government adopted the Emergency Program to Reduce Electric Power Consumption, setting targets for electric power rationing, in accordance to the consumption average of each consumer. Thus, those articles established the discount of a determined value on the monthly electric power bill to those who reached that goal and the payment of a special fee for those who did not reach it. In case of recurrence, the provisions allowed the suspension of the electric power supply. 

The Brazilian Federal Supreme Court, by majority, granted the request in order to declare constitutional the challenged provisions. The Court decided that the establishment of a special fee was part of the program and that it did not have a levy nature as it was not directed to the State collection, but to the electricity distributors, since it aims at covering the expenses of the program. In addition, the special fee stimulated the electric power saving and helped to enable the bill´s reduction of those who met the established goals.

The Court held that there was no offense to equal-rights or to proportionality, inasmuch as the program concerned the consumers in general, encouraging them to consume electricity sparingly and avoiding the so-called "blackouts." There was no violation to property rights, since there is no property involved in consumer relations, and even if it was, the property should always meet its social function and be subject to the conditions defined by law.

Moreover, the Court decided that the suspension of electric power supply was not a double punishment, as the suspension and the collection of the additional fee relied on different facts: non-achievement of the set target and the recurrence of the non-achievement. In addition, this suspension intended to stimulate social solidarity, especially to those who enjoyed greater purchasing power, since the special fee could not engage them enough to participate in the program. Finally, the Court stressed that the decree determined that the suspension would only occur after previously notification (article 14.§4.II) and the assessment of exceptional circumstances (article 15.§5).

 

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The default of the contracted company does not transfer to the Government, by itself, the liability for the payment of labor charges due. The liability of the State only occurs in exceptional circumstances and only if proved that there was a failure in its duty of supervision, by guilt in vigilando.

ADC 16 - Official Gazette, 09.09.2011

This case refers to a declaratory claim of constitutionality that aims at recognizing the validity of article 71.1 of Law 8666/1993, according to which it is not possible to transfer to the State, among others, the liability for the payment of labor charges not honored by companies contracted to render services for the Government.

The Brazilian Federal Supreme Court, by majority, granted the claim and declared the constitutionality of article 71.1 of Law 8666/1993. The Court decided that the default of the contracted company does not transfer to the Government, by itself, the responsibility for the payment of labor charges due. That happens because the nonpayment of these charges does not generate employment relationship between the Government and the employees of the private company. In this situation, the liability of the State only occurs in exceptional circumstances and only if proved that there was a failure in its duty of supervision, by guilt in vigilando.

Moreover, the Court highlighted that the automatic liability of the State would imply a double burden, because the government would have to fulfill both its regular contractual obligations and the company's duties.

In a separate opinion, a dissenting Justice stated that the liability of the State would be possible, since the Government would have benefited from the labor of the contracted company workers.

Full text in Portuguese

 

The application of the Supplementary Law 135/2010 (the Clean Record Act) to conducts and legal facts that happened before it was issued is constitutional.

ADC 29 - Official Gazette, 29.06.2012

This case refers to a declaratory claim of constitutionality filed to support the Supplementary Law 135/2010 – “the Clean Record Act” – which amended the Supplementary Law 64/1990, introducing new disqualifications to hold an elective office. Among other disqualifications, the Act disqualified persons who: were sentenced by a collective body of judges (in electoral, criminal or administrative dishonesty cases); had their accountings for holding a public office rejected (such rejection is issued by a collective body – either the Legislative Branch or the Accountings Court); were expelled from office (either an elective or a civil service office); resigned the office in the brink of a procedure that could expel them from office; or  were prohibited to exercise a regulated profession by the respective regulatory council because of the violation of professional ethics duties. 

The Brazilian Federal Supreme Court, by majority, granted the claim and declared that the application of the Supplementary Law 135/2010 to conducts and legal facts that occurred before the Act was issued is constitutional. The Court stated that such application does not breach the non-retroactivity of law principle, because the Supplementary Law 135/2010 applies to the electoral processes after its issuance. The Court explained that the Act does not imply a case of retroactivity, but it establishes the retrospectivity, as it brought, after its issuance, new consequences to facts that had occurred before. The Act would incur in retroactivity if the legal effects of such facts were changed. Besides, the Court stated that the disqualification for elections is not a penalty; hence, the non-retroactivity principle of the more stringent criminal law is not applicable. Actually, the electoral qualifications of a person must be assessed at each election. Thus, no one has a vested right to stand for elections.

The Court also defined that the new disqualifications do not breach the presumption of innocence principle (article 5.LVII of the Constitution), as this principle relates to penal and procedural penal law. In electoral law, this principle can be balanced. Considering this fact and also considering that the sentence must be issued by a collective body of judges – which gives more certainty on its correction – there is no necessity to wait that it becomes res judicata. In this case, the burden on the citizen’s freedom to stand for election does not surpass the social desired benefits of morality and honesty of those who hold an office.

On the other hand, the Act did not breach the essential core of political rights, once it only limits the right to stand for election (passive right), allowing that disqualified people vote (active right).

Lastly, the Court emphasized that the Act was an outcome of a popular initiative, conveying the effort of the Brazilian population to set a rule to moralize the political arena. Accordingly, even though the Court is not bound by the public opinion, the Act represents a meaningful democratic advance aiming at removing from the politics people who do not comply with the requirements of morality, honesty and legitimacy to stand for elections, when their previous record is considered, following the rule of article 14.9 of the Constitution.

In a separate opinion, a dissenting Justice partially granted the claim, to interpret the article of the Supplementary Law 135/2012 that established the lapse of 8 years of disqualification to stand for election after the penalty is executed. The Justice defended that the period between the time the sentence is issued and the time it becomes res judicata should be compensated in the count of the lapse of 8 years.

In other separate opinions, dissenting Justices denied the claim, on the grounds that the Supplementary Law 135/2010 only could have legal effects to facts that happened after its issuance, because it established electoral disqualifications that limit rights. They argued that the popular initiative should not legitimate Acts that limit fundamental rights or breach the Constitution. These Justices also argued that the disqualification of someone who had been  sentenced by a collective body of judges, before the sentence becomes res judicata, would breach the presumption of innocence principle and the legal certainty principle.

 

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The rights granted to lawyers and to the Brazilian Bar Association (OAB, in the Portuguese acronym), provided for in the Law 8906/1994, suffer from restrictions, to be compatible with the Federal Constitution.

ADI 1.127 - Official Gazette, 11.06.2010

This case refers to a direct claim of unconstitutionality against rights assured to lawyers and to the Brazilian Bar Association (OAB, in the Portuguese acronym), established by Law 8906/1994. The claimant challenged the indispensability of lawyers in lawsuits; their professional immunity for crimes of disrespect or contempt of court, or defamation; the inviolability of their workplace and their communications; and the need for the presence of an OAB representative in searches and seizures and in their detentions in flagrante delicto of unbailable crimes. The claimant also challenged the need for prior consent of OAB to prisons´ facilities to its members; the possibility of oral arguments after the vote of the judge rapporteur; and the prohibition of lawyers´ arrest in case of flagrante delicto of unbailable offenses committed when performing their professional duties. Moreover, the claimant challenged the incompatibility of the practice of law by members of the Judiciary, the OAB control over rooms of lawyers in forums, and the power of that entity to request documents of Courts.  

The Brazilian Federal Supreme Court, by majority, partially granted the claim. As for the indispensability of lawyers in court proceedings, the Court found that article 133 of the Constitution, which establishes that lawyers are indispensable to the administration of justice, is not absolute, as one can file suits on their behalf in Labor Courts, in habeas corpus and in criminal review. Regarding the immunity of lawyers, the Court decided that they are immune to defamation uttered in court, provided that it is related to the case, in which they act; however, as for the crime of disrespect or contempt of court, the immunity is unconstitutional because it is inconsistent with the judge´s authority to hold procedural acts.

Regarding the inviolability of the workplace and communications, the Court decided that it does not cover the possibility of interception authorized by a judge as article 5.XII of the Constitution establishes. Moreover, the Court held that the search and seizure orders against lawyers shall be valid only if OAB is notified beforehand with the necessary secrecy, so it may send a representative to monitor the diligence. The same procedure should occur in the issuance of arrest warrants in flagrante delicto.

On the need for prior consent of OAB to prison facilities to its members, the Court found the law unconstitutional. The Court stated that the administration of prisons is the State´s prerogative. The Court stressed, however, that prisons should have decent facilities.

As to the possibility of oral arguments by lawyers after the vote of Judge Rapporteur, the Court found that the provision violates the principle of adversary proceeding. Such principle takes place among adversarial parties and not the parties and the judge. Moreover, the adversary proceeding must be prior to the ruling issuance.

About the prohibition of arrest in flagrante delicto in non bailable offenses committed in the exercise of the profession, the Court decided that such rule is not unconstitutional because it is in compliance with the principle of presumption of innocence assured by the Constitution. Regarding the OAB control over rooms of lawyers in forums, the Court decided that the rule is unconstitutional because public goods should be under the control of the Public Administration.

On the incompatibility of the practice of law by members of the Judiciary, the Court decided that the rule does not reach the electoral judges, since the Constitution stipulates the integration of lawyers in the composition of the electoral courts. In addition, electoral judges do not exercise exclusively dedicated function, so that the prohibition would prevent them having the means to provide their livelihood, which would hinder access to that activity.

Finally, the Court held that the OAB has the prerogative to request documents to the Judiciary, provides that it shows ground and that it bear the costs. The Court banned, however, the access to documents under seal.

 

Full text in Portuguese

 

The article 7.IV of the Constitution requires the Federal Government to set a value of the minimum wage that is able to satisfy all basic living needs of the worker and his family. The establishment of an insufficient value is an omission of the State and it only allows the filing of a direct action of unconstitutionality by omission.

ADI 1.439 MC - Official Gazette, 30.05.2003

This case refers to a direct action of unconstitutionality filed against paragraph 1 of the Provisional Presidential Decree 1.415/1996, whereby as of May 1st of 1996 the value of the minimum wage would be of R$ 112,00. The claimants alleged that such amount was calculated based on a lower rate than the inflationary loss suffered by workers, what violated article 7.IV of the Constitution. Furthermore, the claimants required a preliminary injunction in order to suspend the challenged article effects until this action was decided on the merits.

The Brazilian Federal Supreme Court, by majority vote, dismissed the direct action of unconstitutionality. The Court acknowledged the insufficiency of the value established by the decree and stated the violation of the article 7.IV of the Constitution. This provision does not only aims at assuring a minimum monthly wage, but also requires the Federal Government to set a proper value - able to satisfy all basic living needs of the worker and his family -, and to adjust it periodically in order to maintain its purchasing power. The set value is insufficient to attend those goals what represents a partial breach of what is determined by the Constitution. Thus, the insufficient action of the legislator constitutes an omission of the State.

Accordingly, the Court stated that the appropriate procedural measure to challenge the provision would be a direct action of unconstitutionally by omission, which has a different goal from the direct action of unconstitutionality. On the first one, the Court acknowledges the omission by the State, that can be either total or partial, and the Court must only notify the legislator of his omission. On the second one, the Court acknowledges that the State did act, but not in compliance with the Constitution, what can lead to the withdrawal of the rule from the legal system. As the actions have different goals, it is not possible to hear the case as a direct action of unconstitutionality by omission. Moreover, it is not possible to grant the preliminary injunction as the Court would act as if it were the Legislative Branch, since the previous and worse value of the minimum wage (R$ 100.00) would be enforced.

In a separate opinion, a dissenting Justice argued that the direct action of unconstitutionality could be heard on grounds that the challenged provision is a concrete act not pursuant to the Constitutional norm. The Justice added that it would be a case of omission if the State had not acted to regulate the constitutional provision. However, the challenged decree did not aim at regulating the article 7.IV, but at adjusting the minimum wage value, even though insufficiently.

 

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Amendments to a bill, made by the revising House, that only introduce formal changes of legislative technique, are not amendments on the merit. In this case, the bill does not have to pass again through the House where the legislative procedure had begun.

ADI 2.182 - Official Gazette, 10.9.2010

This case refers to a direct claim of unconstitutionality filed against Law 8429/1992 (Administrative Dishonesty Act), which establishes penalties to public officers in cases of unjust enrichment while holding a mandate or a public office in the government, in governmental agencies and in governmental foundations.

               The plaintiff alleged the unconstitutionality of the law because of a formal defect during the legislative procedure. He explained that the bill that was first introduced in the House of Representatives was significantly modified in the Federal Senate. When it returned to the House of Representatives, a third version was consolidated and sent to the presidential approval. Nevertheless, it  was not re-sent to the Federal Senate to be revised. Thus, the legislative procedure breached article 65 of the Federal Constitution, according to which the bill that is approved by one House must be revised by the other one and sent to approval or promulgation; but, if there is an amendment, it must return to the House where it had originated.

               The Brazilian Federal Supreme Court, by majority vote, denied the direct claim of unconstitutionality. Preliminarily, the Court analyzed if the reviewing of the substantive unconstitutionality of the law could be done, as the cause of action only indicated the formal defect. The Court stated, by majority, that, in this case, the reviewing of the substantive constitutionality would be impossible, due to the limited cause of action, otherwise the Court would have to analyze the whole law, under all the norms of the Constitution. However, the Court also stated that, due to the open cause of action in constitutional objective procedures, it could review the constitutionality of the law under other grounds, diverse from the ones indicated by the plaintiff.

               On the merits, the Court denied the claim, as it reviewed the law only under the formal perspective. The Court stated that, though the original bill had thirteen articles and in the Federal Senate the number of articles was increased to thirty seven, the amendments were more about the legislative technique than about the merits. Hence, the bill that passed in the Senate was not a new bill, but only a revision of the original one; thus, a second revision by the Senate was unnecessary.

               In a separate opinion, a concurring Justice explained that the amendments were not only formal ones, but amendments on the merit, as they added new rules about the administrative acts. However, the return of the bill to the revising House would be unnecessary, because the House of Representatives had rejected the bill that passed in the Senate and approved the original bill, with some additions.

               In another separate opinion, a dissenting Justice argued that the amendments were a new bill. When the matter returned to the House where it had originated, it became a third version. Such third version should have been sent to the revising House, as the matter must be analyzed by both Houses of Congress.

 

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The dismemberment of federated members must be preceded by a plebiscite that comprises both the population of the territory that will be dismembered, as well as the population of the territory that will be created.

ADI 2.650 - Official Gazette, 17.11.2011

This case refers to a direct claim of unconstitutionality filed against article 7 of the Law 9709/1998, which establishes that the plebiscite before the dismemberment of the states of the federation must comprise both the population of the territory that will be created, as well as the population of the territory that will be dismembered. According to the plaintiff, the wording of the Federal Constitution established that, only in cases of the dismemberment of municipalities, the population of both territories should be consulted, once article 18.4 includes the expression “populations of Municipalities concerned”. On the other hand, in respect to the dismemberment of states, the wording of the Federal Constitution limited the plebiscite to “the population directly interested” (article 18.3). This wording, thus, excludes the population of the territory remaining, once it has only indirect interests.

The Brazilian Federal Supreme Court, unanimously, declared the constitutionality of the article 7 of the Law 9709/1998. The Court stated that, though the wording in the Constitution is different in each case of dismemberment of federated entities, to construe such wording in different manners would mean the attribution of different meanings to similar situations. Hence, in compliance to the principle of the unity of the Constitution, the Court decided that the dismemberment of whatever federated entity must occur after a plebiscite that comprises both the population of the territory that will be dismembered, as well as the population of the territory that will be created. The Court emphasized that both populations have direct interest in the dismemberment, once such measure is not only the territory or population division, but it is also the division of the socio-cultural, economic and financial unity of the state. Thus, the will of the territory remaining must not be unconsidered.

 

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Law 10.826/2003 (Disarmament Statute) does not breach the exclusive initiative of the Head of the Executive Branch, as it does not regulate the creation or dissolution of organs, nor breaches the Federal Government competence, as it is about topics of national interest.

The provisions that establish that the crimes of illegal bearing or shooting of firearm are not bailable are unconstitutional, as it would equal these crimes to others unbailable of higher offensive potential established in the Constitution.

The provisions that forbid the pretrial release in the crimes of international trafficking and illegal trade of firearms, as well as the crimes of possession or bearing of allowed firearm are also unconstitutional, as they violate the principles of presumption of innocence and the due process.

ADI 3.112 - Official Gazette, 26.10.2007

This case refers to a direct claim of unconstitutionality filed against Law 10.826/2003 (Disarmament Statute), which established rules about the registry, possession and trade of firearms, rules about the National System of Arms (Sinarm, in the Portuguese acronym), and that also criminalized some acts related to the use and trade of them.

The Brazilian Federal Supreme Court, unanimously, denied the claim that the Statute was formally unconstitutional, as it was not proposed by the Head of the Executive Branch. The Court explained that the Statute was issued after the Constitutional Amendment 31/2001 came into force. This Amendment suppressed the exclusive initiative of the President to propose bills dealing with the structure and the establishment of attributions of ministries and bodies of the Government, like the Sinarm. Furthermore, the Statute does not create or extinguish bodies, offices or employments in the Government, which is still exclusive attribution of the President.

The Court decided that the Federal Government did not violate the competence of States to regulate the public safety and the consumption, because, according to the principle of the prevalence of the general interest, the formulation of policies of national scope, which are superior to regional interests, is a responsibility of the Federal Government.

The Court decided that the mandatory periodical renewal of the registry of the firearms, under the payment of a tariff, does not breach the property right, since the bearer can give his firearm to the adequate body and receive an indemnity. The Court also considered legitimate the requirement that the firearm and the ammunition be identified, because it eases the tracking of the respective manufacturers and buyers.

The Court denied the claim that the minimum age of 25 years to get a firearm was unreasonable, if compared to the age to have full legal capacity (18 years). The Court stated that the Statute had as a parameter statistical data that indicated the increase of the quantity of persons less than 25 years, who were killed by firearm.

The Court, unanimously, declared unconstitutional the prohibition of the pretrial release in the crimes of international trafficking and illegal trade of firearms. By majority, the Court decided that the mentioned prohibition is unconstitutional for the crimes of possession or bearing of allowed firearm. The Court decided that the Constitution does not allow the automatic detention, because this could violate the principles of the presumption of innocence and the due process. It is only allowed that the judge decrees the provisional detention, before the sentence become "res judicata", if, case-by-case, there is evidence that the accused could cause harm to society or to the trial (article 312 of the Criminal Code).

By majority, the Court declared unconstitutional the provision that established that the crimes of illegal bearing or shooting of firearm are not bailable. This prohibition is unreasonable, as it would equal these offences to other offences specified as not bailable in the Constitution, because of their high offensive potential, such as the heinous crimes, terrorism, torture, and drug trafficking.

In separate opinions, dissenting Justices stated that the Constitution did not establish a limited set of not bailable crimes. Accordingly, the ordinary legislator could establish other cases in which the payment of the bail is impossible.

 

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The scientific research with embryonic stem cells to therapeutic objectives does not violate the right to life nor the dignity of the human person.

ADI 3.510 - Official Gazette, 28.05.2010

This case refers to a direct claim of unconstitutionality against the article 5 of Law 11.105/2005 (Biosafety Law), that allows, to research and therapeutic objectives, the use of embryonic stem cells, obtained from human embryos produced through “in vitro” fertilization and not used in the proceeding. The claimant alleged that human life begins since fertilization and the zygote (embryo in the beginning stage) is an embryonic human being; hence, its use to get stem cells breaches the inviolability of the right to live and the dignity of the human person. He argued, also, that researches with adult stem cells are more promising than those with embryonic stem cells.

The Brazilian Federal Supreme Court, by majority, denied the direct claim of unconstitutionality on the ground that the human life is only possible after the implantation of the embryo in the womb and the consequent live birth. The Court understood that the zygote is not the same as the foetus and the natural person. The ordinary law protects with diverse regimes each stage of the gestation development, but as a good to be protected, not as a person. The Federal Constitution, in the chapter that provides about individual rights and safeguards, refers to the individual, as a natural person; hence, the inviolability of the right to live is an exclusive prerogative of a personalized being, born alive. Furthermore, the Court stated that the Law 9.434/1997 (Transplantation of Organs Law) establishes that there is no life after the brain death. Thus, if the brain activity is pre-condition of life, the embryo, which has not a complete brain, cannot be considered human life.

The Court explained that the couple’s decision to have children, as well as the option to do an “in vitro” fertilization, is a constitutional right. Such option does not oblige the couple to use all embryos, because, besides the lack of a legal norm setting this obligation, such obligation would violate the free will and the autonomy to family planning, which is a right that derives from the principles of the dignity of the human person and the principle of the responsible paternity (article 226.7 of the Federal Constitution). The Court emphasized that the Biosafety Law set norm about an artificial fertilization, which was not the result of a sexual intercourse; thus, the use of embryonic stem cells is not an abortion.

The Court stated, further, that researches made with embryonic stem cells, because those cells are pluripotent, in other words, they can generate any human tissue, as they can differentiate into other cells, cannot be replaced by other research programs, like those made with adult stem cells, as they have low degree of differentiation. The Court explained, at last, that the research with stem cells is in accordance with the Constitution, as it establishes that the State must promote and encourage the scientific development, the technological research (article 218) and must ensure the right to health (article 196), and such researches are an instrument to implement this right.

In separate opinions, partially granting the direct claim, without reduction of text, dissenting Justices argued that embryos are human life and the researches can be made, if there is control over the activity of fertility clinics, mainly the “in vitro” fertilization procedures and since they adopt methods that do not destroy or dispose human embryos. The dissenting Justices stated that the fertility clinic, in which the embryos were produced, must preserve the exceeding embryos, until they are unviable to implantation. Besides, they stated that measures to limit the fertilization and implantation of four embryos and to prohibit the artificial selection must be taken. They argued that, once the expression “unviable embryos”, written in the law, has an undetermined meaning, only the embryos that had their development stopped because of a spontaneous lack of cleavage after 24 hours since fertilization could be considered unviable. Thus, if they had potential to life, even if they were frozen, they could not be destroyed. The dissenting Justices also argued that the use of embryos in researches could only be done under the permission of the parents.

In other separate opinions, partially dissenting Justices that denied the direct claim stated that there is no human life in the embryos before their implantation in the womb and that a central committee under the Health Ministry should be created to control researches. They stated, lastly, that members of committees and ethics commissions must be criminally liable, whenever they fail to act in accordance with their controlling duties, and that such conducts must be enacted as autonomous criminal offences.

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The crime of inducting, instigating or helping somebody to use an illegal drug cannot be interpreted to hinder the realization of public demonstrations for the legalization of drugs, otherwise the right to assembly and the freedom of expression could be breached.

ADI 4.274 - Official Gazette, 2.5.2012.

This case refers to a direct claim of unconstitutionality filed against the article 33.2 of the Law 11343/2006, which provides that to induct, instigate or help somebody to use an illegal drug is a crime. The plaintiff alleged that this provision was used to hinder demonstrations for the legalization of drugs, breaching the freedom of expression and the freedom of assembly.

               The Brazilian Federal Supreme Court, unanimously, granted the claim, to establish the constitutional interpretation of the norm challenged, excluding any meaning that could give rise to the prohibition of demonstration and public debates about the decriminalization or the legalization of illegal drugs or other substance that causes episodic or addicted torpidity.

               The Court emphasized that the criminalization of the conduct should not be mistaken as the debate about the criminalization. If the debate were prohibited, criminal norms could be eternal. Accordingly, the prohibition of the discussion about a public policy and the respective demonstrations breaches the fundamental right to assembly, besides breaching the freedom of thought and of expression and the right to information.

               The Court added that the Constitution only requires that the assemblies must have pacific aims and that they must be previously notified to the competent public official, in order to organize the act. Furthermore, other restrictions established in the Constitution could only be enforced in cases of state of defense or state of siege.

               In a concurring vote, granting the claim under a diverse ground, the concurring Justice emphasized that the right to assembly has some objective limits, as it would be impossible to admit demonstrations for the decriminalization of murder, for example. Hence, such limits should be analyzed case by case, under the light of constitutional principles.

 

Full text in Portuguese

 

The state law that establishes the election, by the State Legislature, in a roll call vote, to the posts of Governor and Vice-Governor, when such posts are vacated in the last two years of the term, is constitutional.

ADI 4.298 - Official Gazette, 27.11.2009

This case refers to a preliminary injunction on direct action of unconstitutionality filed against Law 2.154/2009 of the State of Tocantins, which establishes the election, by the State Legislature, in a roll call vote, to the posts of Governor and Vice-Governor, when such posts are vacated in the last two years of the term. The plaintiff argued the principle of annuality (article 16 of the Constitution) breach, according to which the law could only be applicable to the elections that happen after one year it was passed.

The Brazilian Federal Supreme Court, by majority, denied the preliminary injunction on the direct action of unconstitutionality. Firstly, the Court stated that the article 81.§1º of the Constitution does not require the application of the federal symmetry principle. This article sets the rules for the election of the President and the Vice-president of the Republic, when these posts are vacated in the last two years of the term. The federal symmetry principle is only applicable when local rules that are diverse from federal rules can cause contradictions to the legal system, to the balance of powers or to the national unity.

Considering the challenged decision under the proportionality principle, the Court did not held it unconstitutional. The indirect election, by the State Legislature, in such cases is adequate, as it promotes a democratic choice. Furthermore, it is necessary, because it is fast, economical, apt and less harmful to the direct and universal vote system. It is also strictly reasonable, because it is an admissible method, if compared to its benefits. Despite this, the eligibility conditions of the article 14 of the Constitution are applicable to such elections.

Besides, the Court decided that the challenged rule does not breach the Federal Government competence to legislate on electoral matter, because this case is about a political-administrative question, which is under the state autonomy. By virtue of this specific aspect of the rule, the principle of annuality (article 16 of the Constitution) is not applicable, because it only regulates general elections.

Lastly, the Court analyzed the roll call vote. The Court decided that this method of election was adequate, because the federal symmetry principle is not applicable, in compliance with the thesis that states have political autonomy in this matter.

In a separate vote, a partially dissenting Justice held unconstitutional the roll call vote, because the member of parliament would act as a common voter, to whom the secret ballot is ensured.

Full text in Portuguese

 

The Constitutional Amendment 62/2009 breaches the principles of administrative morality, reasonability and substantive due process, because it establishes new restrictions to the payment of certificates of judgment debt of the Government, allowing the nonpayment of governmental debts.

ADI 4.425 – Official Gazette, 19.12.2013

This case refers to a direct claim of unconstitutionality filed by the National Confederation of Industry against rules of the article 100 of the Federal Constitution (hereinafter CF) and article 97 of the Temporary Constitutional Provisions Act (hereinafter ADCT), added through Constitutional Amendment 62/2009, which introduced a special regime of payment of certificates of judgment debt of States, the Federal District and Municipalities. The plaintiff alleged that the regime breaches the safeguard of the reasonable duration of the process, the res judicata and the principle of the separation of powers, as it postpones the full payment of debts from definitive judicial decisions for fifteen years. The plaintiff also alleged that the mandatory setoff of certificate of judgment debt of the Government with debts of the creditor would violate the right to freedom and isonomy. The plaintiff further alleged that the adjustment for inflation and the interests for late payment of the Government debts using the savings’ rate breach the principle of morality and the constitutional safeguard of res judicata.

The Brazilian Federal Supreme Court, by majority, partially granted the direct claim, in order to declare unconstitutional the rules of article 100.9, 100.10 e 100.15 of the CF and article 97 of the ADCT, both added through Constitutional Amendment 62/2009. The Court decided that the mandatory setoff of debts, established in article 100.9, 100.10 e 100.15 of the CF, hinders the effectiveness of jurisdiction and the due process of law and violates the res judicata. Furthermore, it breaches the isonomy principle, as it establishes a great procedural superiority to the Government against citizens because it does not allow citizens to set off their credits with the Government.

The Court decided that the special regime established in article 100.15 of the CF and article 97 of the ADCT breached the safeguards of the free and efficient access to justice, the due process of law, the reasonable duration of the process and the authority of judicial decisions, as this special regime postpones for 15 years the full payment of debts from judicial decisions and allows creditors to auction their credits and tolerate discounts, in order to receive them. Furthermore, those provisions, as they allow the payment by direct agreement or in cash, in a single and increasing value order, breached the principle of impersonality and the rule that binds the payment to the chronological order of request of certificates of judgment debts of the Government, because they favor later creditors, notwithstanding earlier ones, who wait longer for the payment.

The Court deemed partially unconstitutional the article 100.2, which gives preferred payment only to those that are sixty years old or older in the date of the issuance of the certificate of judgment debt of the Government, because it breaches the equality principle. Such preferred payment shall be given to all creditors that reach sixty years between the issuance of the certificate of judgment debt of the Government and its payment.

The Court also declared partially unconstitutional the adjustment for inflation of the certificate of judgment debt of the Government using the savings’ rate, because this rate does not maintain the purchasing power, if compared to inflation rates, and infringes the res judicata. About the interest rates for late payment applicable to certificate of judgment debt of the Government, the Court decided that, when the debt is related to taxation, the rate should be the same applicable to tax credits.

At last, the Court stated that the Constitutional Amendment 62/2009 breached the principles of administrative morality, reasonability and substantive due process, because it established new restrictions to the payment of governmental debts, allowing the nonpayment of governmental debts.

In separate opinions, dissenting Justices defended that the regime of payment of the certificate of judgment debt of the Government was not an institutional regression, because it should not be assessed according to an ideal regime, but according to the previous one. They emphasized that the possible declaration of unconstitutionality of the new regime of payment of certificate of judgment debt of the Government would mean the return to the inefficient older regime. The older regime was worse than the new one to creditors, because it, in practice, does not provide a term or penalty to the fulfillment of governmental debts.

In other separate opinion, a dissenting Justice argued that the constitutionally adequate procedure to challenge the nonpayment of certificates of judgment debt of the Government is the federal intervention request. However, this measure was inefficient, because federated entities have scarce resources. 

 

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Members of the national party coalition may participate in the local free propaganda of political parties.

Limiting the access to free electoral propaganda only to parties that have elected federal deputies in the House of Representatives is unconstitutional. However, the representation in the House and its proportion can be taken into account to establish parameters for time division in the propaganda.

 The parties formed after the elections can have access to the free electoral propaganda considering the amount of elected federal deputies they have in the House of Representatives.

ADI 4.430 – Official Gazette, 19.9.2013

This case refers to a direct action of unconstitutionality filed against provisions of the Elections Act (Law 9.504/1997). The plaintiff challenged the provision of article 45.§6º, which  allowed, in the local free electoral propaganda of a political party, the participation of members or candidates of other parties of the national party coalition. Were also challenged the rules of article 47.§2º.I and 47.§2º.II, which granted free electoral propaganda time on radio and television only to political parties that have had elected federal deputies to the House of Representatives and divided a third of the airtime equally between the parties with members in the House and two-thirds proportionally to their number of members in the House. Such rule would exclude the participation of parties that have no deputies elected and would create an undue distinction among parties that should receive equal treatment. In another lawsuit, jointly decided, the plaintiff required that the article 47.§2º.II would not be interpreted to forbid the division of the proportional free electoral propaganda between new parties that were created after the elections, as the elections were the criteria to identify the amount of airtime to each party.

The Full Court of the Brazilian Federal Supreme Court, by majority, partially granted the request. The Court held that the permission for members of the national party coalition to participate in local free electoral propagandas of political parties is legitimate. Such rule reinforces the national character of the parties, as provided in Article 17.I of the Constitution.

The Court held that the free access to radio and television only to parties that have elected federal deputies violates Article 17§3º of the Constitution. The Act that regulates the constitutional right to participate in elections cannot impose obstacles to enjoy such right, as it would be a restriction to the right to be a candidate. On the other hand, the Court deemed that the distinction set between parties that have elected members in the House of Representatives and those who have not is legitimate. The Court considered that these groups of parties weight differently and that the Constitution allows this difference in other hypothesis, as it grants the parties with representation the standing to sue the direct action of unconstitutionality and the request for a collective writ of mandamus.

The Court stated yet that the division of the airtime according to the result of the elections violates the freedom to form parties under article 17 of the Constitution, because it hinders the formation of new parties as it disregards a prerogative of the deputy that adhered to the new party. Thus, parties formed after the elections shall be granted access to the free propaganda in the proportion of their number of deputies in the House. This would ensure the pluralism of parties established in the Constitution. Furthermore, parties formed after the elections should have the same rights of those that resulted from the fusion or incorporation, as the freedom to form parties is jointly established with these two rights.

Finally, the Court held that the access to television and radio must follow the parameters already set by the Superior Electoral Court: one third of the period is equally divided among all parties and two thirds equally divided among the parties that have members in the House of Representatives, considering the number of deputies of each party.

In separate opinions, dissenting Justices held that the request was legally impossible, as the declaration of unconstitutionality could only declare null the rule that divides unequally the air and radio time of the free electoral propaganda, but it could not set other criteria of time division.      

 

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The law that forbids radio and television broadcasting stations to, since the 1st of July of an electoral year, produce or broadcast programs using trickery, montage or other means that degrade or ridicule candidate or party and that forbid them to publicize their opinion for or against a candidate or party breaches the freedom of the press. 

ADI 4.451 MC - Official Gazette, 24.8.2012

This case refers to a direct claim of unconstitutionality filed by the Brazilian Association of Radio and Television Broadcasting Stations, with a preliminary injunction request, against items II and III of the article 45 of the Law 9.504/1997. These items forbid radio and television broadcasting stations to, since the 1st of July of an electoral year, produce or broadcast programs using trickery, montage or other means that degrade or ridicule candidate or party (item II) and forbid them to publicize their opinion for or against a candidate or party (item III). 

The plaintiff alleged that the challenged items hindered the publication of polemic political subjects, since it would be considered the disclosure of opinions about candidates. Furthermore, the rules hindered the publication of political cartoons. Thus, the items breached the freedom of expression and the freedom of the press.

The Brazilian Federal Supreme Court, by majority vote, confirmed the preliminary injunction granted individually by the Rapporteur Justice and suspended the rules of item II and the second clause of item III, both form article 45, and, as a consequence, the paragraphs 4 and 5 of the same article, as they mentioned item II. The Court emphasized that the Government cannot previously establish what broadcasting stations can publicize, mainly during the electoral season. The freedom of the press, which includes the freedom to create and to express, is strongly tied to the democracy. The full exercise of this freedom is paramount to publicize facts and ideas without the Government bias. The humor, through cartoons and caricatures, is one of the most typical means of expression. It is, thus, as free as other means of expression and it cannot be previously censored. On the other hand, it can always be subject to the tort, if there is the breach of other constitutional rights.

The Court emphasized, also, that the radio and the television are public services that depend upon the concession of the Government and, thus, they have a constitutional regime different from the written press. Its activities are equally free, but they must be impartial. However, it does not mean that broadcasting stations must not express opinion or journalistic criticism. Accordingly, the assessment of such opinion must be done in a case-by-case basis and only the opinion that tends to be a party propaganda would be illegal.

In separate opinions, dissenting Justices stated that the challenged rules, as they were presented to the Court, would not hinder the publication of cartoons. Strictly speaking, the law intended to impede the inadequate use of the means of social communication, avoiding that the political preferences of its owners influenced the people’s will. Thus, the rule partially restricted the freedom of the press to favor the isonomy between candidates. Accordingly, the dissenting Justices suggested that the items should be considered valid and only the interpretations that impeded the publication of cartoons or satire in radio and television would be considered unconstitutional.

 

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Legal provisions that allow corporate donations to electoral campaigns are unconstitutional since they do not neutralize the influence of economic power in the elections.

ADI 4.650 - Official Gazette, 24.2.2016

The Federal Council of Brazil Bar Association filed a direct action of unconstitutionality, questioning the constitutionality of corporate donations to parties and electoral campaigns, the limit proportional to income for donations made by singular individuals and the absence of limits on the use of the candidates’ own resources in electoral campaigns. The claimant  stated that the current rules violate the democratic and republican principles as well as the principles of equality and proportionality because they make the electoral dispute uneven for citizens who lack financial resources, favoring those who have more access to economic power. The Federal Attorney General, in defense of the rule, argued that the Federal Constitution does not establish a political funding model. Thereby, the choices made by lawmakers are legitimate, including the financing by legal person.

Given the interdisciplinary nature of the matter, a public hearing was held. In the occasion, it was shown that there is an increasing influence of economic power over the political process as a result of a raise on electoral campaign spending. In 2002, candidates spent R$ 798 million (R$, the Brazilian currency), while, in 2012, the figures exceeded R$ 4.5 billion, an increase of 471%. In Brazil, the expense would be of R$ 10.93 per capita; in France, R$ 0.45; in the UK, R$ 0.77; and in Germany, R$ 2.21. As a proportion of GDP (Gross Domestic Product), Brazil is one of the countries that spends the most on electoral campaigns.

The Brazilian Federal Supreme Court, by majority, partially granted the request to declare the unconstitutionality of legal provisions that authorize corporate donations to electoral campaigns. The Court dismissed the claim regarding the limit proportional to income for donations made by singular individuals and the lack of limits on the use of the candidates’ own resources.

Initially, the Court reported that campaign financing, as a subject that directly affects the interests of lawmakers, is more likely to a biased treatment at a parliamentary level. Thus, the expansive and particularistic role of the Court would be justifiable since it is not subject to these interests, so as to induce a constitutional dialogue, leading the debate between the Powers and society. Furthermore, although the Federal Constitution does not have specific rules on the model of campaign financing, it establishes a regulatory framework that limits the discretionary power of lawmakers.

 

On the merits, the Court held that the exercise of citizenship, in the strict sense, presupposes three modalities of procedure: the right to vote; the right to be voted; and the right to influence the formation of political will by the instruments of direct democracy. The Justice Rapporteur emphasized that such rules are inherent to singular individuals and therefore they could not be extended to companies, whose main purpose is obtaining profit. The Court pointed out that article 14.9 of the Federal Constitution prohibits the influence of economic power over the elections and that the participation of legal entities may turn the campaign costs very expensive, without causing, on the other hand, the improvement of the political process.

The Court rejected the argument that donations from legal entities to campaigns and parties are a demonstration of their freedom of expression, because this kind of donation would favor the candidates who had links with major donors, making the electoral dispute overly unequal. Moreover, it was verified that a single company donates to campaigns of leading candidates. This fact does not indicate an ideological preference of the legal entity.

Regarding the claim that the flaws in the electoral financing by legal entities could be resolved by the supervision and transparency of donations, the Court stated that such methods do not eliminate the problems of the current system. Even if there were more supervision, economic power would still have an important role in the electoral process.

In separate opinions, dissenting Justices alleged that the Federal Constitution only prohibits the abusive influence of economic power over the elections. As they said, the fact that corporations do not vote could not restrain them from donating since many singular individuals, who are not entitled to vote, can also make donations. The dissenting Justices asserted that in Brazil corporate donations to electoral campaigns had been once forbidden, but the prohibition has not avoided the influence of economic power due to fraudulent donations. In this sense, the failure of the current electoral funding model would be in the systematic breach of the rules.

 

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The consent of the main character of a biography, of supporting characters or their relatives (in the cases of deceased or missing people) is not indispensable to literary or audiovisual biographical works.

ADI 4.815 - Official Gazette, 1.2.2016

The National Association of Books’ Editors (ANEL, in the Portuguese acronym) filed a direct action of unconstitutionality against Articles 20 and 21 of the Civil Code (CC), which establish the previous authorization of the main character of a biography, of people presented as supporting characters or their relatives as a condition to publish literary or audiovisual biographical works.

The plaintiff argued that such requirement is a non-governmental censorship and it violates the freedom of speech, the exercise of the free expression of thoughts and the right to information (items IV, IX and XIV of the article 5 of the Federal Constitution – CF in the Portuguese acronym). The plaintiff alleged that public figures have limited privacy and intimacy, because their lives are part of events of public interest. It asserted that the indispensable consent discourages authors and harms the editorial market, once authorizations are negotiated under high values, converting information into merchandise. Furthermore, the distortions in stories that are only reported by its characters are serious, which compromise the historical accounts and the building of the national memory. The plaintiff warned that it did not intend to block the application of the rules of the CC, but to obtain an interpretation in accordance with the CF (which saves the constitutionality of the statute), promoting the conciliation between the fundamental rights of intimacy of the subjects of biographies and the prohibition of censorship.

The General-Attorney’s office requested the denial of the claim. It stated that the freedom of speech and the right to information are limited by personal rights: right to privacy, to honor, to intimacy and to image (rule 5.X of the CF). It defended that the consent of the subject of a biography is necessary, because he or she is the one able to examine the truth of the information and to appraise if the disclosure of a fact of his or her personal life has social interest.

A public hearing was held and the citizenry could express itself about the topic.

The Brazilian  Federal Supreme Court, unanimously, granted the claim, in order to establish an interpretation of articles 20 and 21 of the Civil Code in accordance with the Constitution, without nullifying the text of these provisions. Following the fundamental rights of freedom of thought  and of its expression, freedom of artistic creation and of scientific output, the Court declared that the consent of the main character of a biography, of people presented as supporting characters or their relatives (in the cases of deceased or missing people) is not indispensable for the production of literary or audiovisual biographies.

The case was about a false conflict of norms and the Court was demanded to make the right to create biographical works, as an exercise of the freedom of expression, compatible with the inviolability of intimacy, privacy, honor and image. The Court understood that the civil rule should not be amended, but it should be interpreted coherently with the constitutional text, using the method of balancing values. For this purpose, the Court considered that the CF sets forth the freedom of thought and of its expression –  as well as the freedom of intellectual, artistic, literary, scientific, and cultural activities –  as fundamental rights and ensures the right to access of information and the freedom of academic research, hence, any form of censorship, governmental or non-governmental, is forbidden. Furthermore, the CF ensures the inviolability of intimacy, privacy, honor and dignity of people, establishing forms of compensation if this inviolability is breached. The Court highlighted that biographies have a relevant social function to the knowledge of history and to the preservation of the national memory. The Court considered, as well, that a norm below the Constitution (the civil statute) could not restrict fundamental constitutional rights, even under the pretext that it would protect other right ensured by the Constitution, such as the inviolability of private life.

In case of conflict between the individual and the collective interest, the Court opted to prioritize the collective interest. It concluded that the prerequisite of an authorization to publish biographical works is an excessive restriction to the freedom of speech and the freedom of expression of thought of writers and to the right to information of citizens, being a non-governmental censorship.

In a separate opinion, a concurring Justice stated that, even though the articles 20 and 21 of the CC prioritize the rights of personality instead of the freedom of speech, this right should prevail over, because it is a preferential liberty. This does not mean to put this right above other fundamental rights, something that is not allowed in the Brazilian legal system. The prevalence occurs because the previous censorship or the licensing is forbidden and because the freedom of speech is a premise to the exercise of other fundamental rights, such as the right to take part in politics, the freedom of association and the right to assemble. Furthermore, the burden of reasoning must be transferred, that is, the one who wants to hinder the freedom of speech is the one who must be demanded to give his or her reasons. The Justice asserted that any form of restriction on the freedom of speech must be analyzed and avoided. Information illegally obtained or based on a lie could compromise the disclosure of a fact, but the courts can intervene afterwards. Finally, the Justice pointed out that the freedom of speech is not a guarantee of truth or fairness, but a guarantee of democracy, in the light of the importance of the free flow of ideas and the diversity of opinions.

In other separate opinions, concurring Justices stressed that the writer of a biography can request authorization to publish his or her work, avoiding a possible later control by the courts. However, this request should be only a possibility. They warned that the exemption of consent does not allow the full use of the image or the private life of others, being possible the intervention of courts in cases of abuse or overt untruth, as well as compensation for damages, right to reply or to publish a new work with corrections.

Justices underscored the existence of various versions about a historical fact; hence, trying to control biographies would amount to attempt to control history. They recalled that only renowned figures would be the subject of a biography and that, as renown grows, privacy wanes. They considered that the biography after the authorization is only publicity. Finally, they warned that biographies are not only exposed in books, but also in the internet. This fact makes easier the dissemination of apocryphal, offensive and non-authorized stories, with a global reach. As it is a complex issue, ways to restrain abuses must exist.

 

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Disqualification due to party switching does not apply to candidates who were elected by the majority electoral system, because it violates popular sovereignty and the choices of the voter.

ADI 5.081 - Official Gazette, 19.8.2015

This case refers to a direct action of unconstitutionality filed by the Prosecutor General of the Republic against Articles 10 and 13 of Resolution 22610/2007 of the Superior Electoral Court. The claimant alleged that the disqualification of someone who was elected by the majority electoral system, in case of party disaffiliation, offends against popular sovereignty, breaches the constitutional features of the majority system and violates the cases of parliamentary disqualification (Articles 14.caput, 46.caput, 55 and 77 of the Federal Constitution).

The Federal Attorney General argued, preliminarily, that the claim should not be heard, as this subject had already been judged in other direct actions of unconstitutionality (ADI 3999 and ADI 4086, in the Portuguese acronym). On the merits, he held that the duty of party loyalty and the obligation of party affiliation as a condition of eligibility are rules set forth in Articles 14.§3º.V, and 17.§1º of the Federal Constitution, respectively. Both provisions regulate elections ruled by proportional and majority electoral system.

Preliminarily, the Brazilian Federal Supreme Court, by unanimous vote, stated that the question raised in this action is different from the one discussed in ADI 3999 and ADI 4086, which was: party loyalty from the standpoint of proportional system. On the merits, the Full Court, unanimously and in accordance with the vote of the Justice Rapporteur, upheld the request and set the following thesis: disqualification due to party switching does not apply to candidates who were elected by the majority electoral system, because it violates popular sovereignty and the choices of the voter.

The core of the discussion focused on the different characteristics of both electoral systems adopted in Brazil: majority and proportional. The Court emphasized that, in the majority system, which is applied to elections of Mayors, Governors, Senators and the President, the candidate is considered elected if he or she wins the most votes. In this case, the votes received by other candidates are dismissed. However, in the proportional system, which rules the elections for City Council members, State and Federal Representatives, the election will be defined quite differently, taking into account the total number of valid votes received by all candidates and political parties. This number is divided by the number of seats to be filled in the Parliament, an operation from which the electoral quotient is obtained. Afterwards, the number of votes received by each party or coalition is divided by the electoral quotient. The result is the party quotient, which is equivalent to the number of candidates elected for each party.

The Court explained that the proportional system emphasizes the political parties, i.e., the voter elects the party and not the candidate. On the other hand, in the majority system, the focus is on the candidate themself. Therefore, disqualifying a candidate who has switched  parties frustrates the will of the voter and undermines popular sovereignty (Articles 1, sole paragraph, and 14.caput of the Federal Constitution).

In a concurring vote, a Justice pointed out that applying the rule of party loyalty to majority system elections would create a new hypothesis of losing seat in an elective office which is not foreseen in the Federal Constitution.

 

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The internal rule issued by a Court of Appeals to regulate custody hearings within that body is constitutional, since it did not innovate in the legal system, but only explained existing normative content of the Code of Criminal Procedure and the American Convention on Human Rights, enacted in Brazil.

Conventions and human rights treaties ratified by Brazil have “supralegal” hierarchy and therefore have the power to halt the legislation in conflict with its precepts. Thus, when the American Convention on Human Rights provided for the prisoners´ soon presentation before a judge, it legitimized custody hearings across the country.

ADI 5.240 – Official Gazette, 1.2.2016

The Association of Chief Police Officers of Brazil filed a direct action of unconstitutionality, with request for preliminary injunction,  questioning whether it is legitimate to regulate the custody hearings (prisoner´s soon presentation before the judge in case of flagrant arrest) by means of an administrative rule.

In the case, the claimant questioned the Internal Joint Rule 3/2015 (Provimento Conjunto 3/2015) of the State Court of  São Paulo and the General Internal Affairs of the State of São Paulo, which determines the presentation of the detained person, within 24 hours, before the competent judge, to attend custody hearing at that Court.  The Association stated that the contested internal rule provides an innovation by introducing functional duties to police chiefs, exceeding the regulatory power of the Court. In this sense, it argued that the establishment of such rules could not be made through an administrative act and depended on federal law regulation, given the fact that the content is of procedural matter (Article 22.I and 22.5 of the Constitution). It was emphasized that the American Convention on Human Rights has “supralegal” nature and, for this reason, it could not be the legal ground to the internal rule issuing. Finally, the claimant pleaded for the unconstitutionality of the internal rule, in the light of the principle of prohibition of excess and operational difficulties in implementing the hearings.

The Brazilian Federal Supreme Court, by majority, in accordance with the rapporteur´s opinion, did not hear the action concerning the Articles 1, 3, 5, 6, and 7 of the Joint Internal Rule 3/2015, which only delineate, without exceeding the content, the provisions of the American Convention on Human Rights and the Criminal Procedural Code concerning the legal procedure of habeas corpus filed before the first instance. In the event, the Court concluded that any noncompliance between the regulation and the law should be resolved at the legal level.

With regard to Articles 2, 4, 8, 9, 10, and 11, the Court heard the action and denied the request, on the grounds that the provisions convey internal organizational commands of the State Court of  São Paulo, which is competent to issue its internal rules of organization, under Article 96. I of the Federal Constitution. In such case, the rule has ground on the Constitution itself, and the direct control of constitutionality is admissible. The Court emphasized that the contested rules clearly bring administrative provision, determining how and when the implementation of the custody hearing will be held within the Court. Therefore, the principles of legality (Article 5.II of the Constitution) and of federal law reservation (Article 22.I CF) were not violated, neither was the principle of separation of powers (Article.2 of the Constitution),  given that the rule only regulated provisions of the Convention and of the Article 306.§1 of the Criminal Procedural Code already enforced, without bringing new assignments to police chiefs.

 

The Court stated that, although it was not possible to decide on the custody hearings, because the matter is part of the merit of the administrative act, subject not heard by the Court, the effectiveness of custody hearings in reducing the population of pre-trial detainees in Brazil should be emphasized.  The soon presentation of the prisoner allows the judge to know, by the detainee himself, why he was arrested and under what conditions he is imprisoned, which is closely linked to the fundamental guarantee of freedom and the constitutional remedy of habeas corpus. The Court noted that the American Convention on Human Rights, ratified by Brazil, had already established that the person arrested or detained should be quickly brought before the court (Article 7, item 5). In this sense, the Court reaffirmed its jurisprudence concerning the “supralegal” hierarchy of the Convention and treaties on human rights, which implies that all legislation in conflict with this provision has its effect suspended.

In a dissenting opinion, one of the Justices understood that the case could not be heard, on the grounds that the internal rule questioned is a normative act of secondary category, which is not subject to the direct control of unconstitutionality. On the merits, the Justice considered the rule unconstitutional as it innovated in the legal system of exclusive competence of the Federal Government to regulate on.

 

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The Federal Constitution assigns to the Federal Government, exclusively, the exploitation of the post service and the national airmail post.

ADPF 46 - Official Gazette, 26.2.2010

This case refers to a claim of non-compliance with a fundamental precept filed against the Law 6.538/1978, which establishes the exclusive exploitation of the post services by the Empresa Brasileira de Correios e Telégrafos (ECT). The plaintiff alleged that this monopoly violates the constitutional principles of the free enterprise and the free competition. He also alleged that the monopolies of the State are exhaustively enumerated in the Constitution and that the post service is not included.

               The Brazilian Federal Supreme Court, by majority vote, denied the claim, on the grounds that the post service is not strictly an economic activity, but it is a public service. The Court stated that the difference between strict economic activity, in which the free competition and the free enterprise are the standard, and the public service derives from the wording of the Constitution. Accordingly, the article 20.X of the Constitution establishes that the Federal Government will exclusively exploit the post service and the national airmail post; diversely, in other activities, such as healthcare and education, the Constitution sets forth the free enterprise and the free competition, pursuant to articles 199 and 209.

               The Court emphasized that it is not a case of state monopoly, as this concept only applies to cases of strict economic activity, which can be exploited by the private sector, but in which the state has the exclusive exploitation. The post service is a public service, which is exploited under the regime of privilege, and it is characterized by the exclusiveness of exploitation, since it is diverse from the strict economic activity.

               In a separate opinion, a dissenting Justice granted the claim, on the grounds that the Constitution did not expressly establish the monopoly of the post service. He alleged that the State must have a subsidiary role, following the changes in the Administrative Law, in order to increase the efficiency of the service and, thus, to serve the public interest.

               In other separate opinions, concurring Justices granted partially the claim to state that only the post services of letters, postcards and bulk mail are under the monopoly of the Federal Government. Other services, like the delivery of invoices, printed matter and other kinds of parcels, are not under the monopoly.

 

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The construction that the therapeutic anticipation of the birth in cases of anencephalic fetus constitutes the crime of abortion is unconstitutional. The anencephaly is an abnormality, equivalent to the brain death, lethal in all cases, and the brain death is the criteria to declare the death. Thus, the pregnant has the right to choose between keeping the pregnancy and interrupting it, because the interruption is not a crime, due to the absence of the subject of the criminal act.

ADPF 54 - Official Gazette, 30.4.2013

This case refers to a claim of non-compliance with a fundamental precept filed by the National Confederation of Health Workers aiming at declaring unconstitutional the interpretation that considers the therapeutic anticipation of the birth of anencephalic fetus a kind of abortion, as established in the articles 124, 126, 128.I and 128.II of the Penal Code.

The claimant argued that the anticipation of the birth was not a kind of abortion, because abortion presupposes a potential life outside the womb. Accordingly, the prohibition of the therapeutic anticipation of the birth of anencephalic fetus would breach the woman’s freedom, under the legality principle; her right to health; and the principle of the human dignity.

The Brazilian Federal Supreme Court, by majority vote, granted the claim. Firstly, the Court emphasized that, according to the fundamental precepts that guarantee the Brazilian secular state, this controversy should be judged without a religious moral bias. The Court explained that, until the empire period, the Brazilian state was catholic, but since the first Republican Constitution of 1891, the secularism was established as a constitutional principle and was reiterated in the subsequent constitutions, including the 1988 one.

The Court distinguished the discussion about the therapeutic anticipation of the birth from the decriminalization of abortion and from the prejudice against the deficiency of the fetus (eugenic abortion). Abortion would presuppose a healthy fetus, while the anencephaly deficiency, according to the testimony of experts in the public hearing, held to produce evidence for this decision, is an abnormality characterized by the absence of the brain and the skull, which is equivalent to the brain death and, therefore, it is lethal in all cases. Accordingly, the Court stated that this case depicted a false conflict of fundamental rights, because, opposing the rights of the woman, there was a being which, though biologically alive, was legally dead, as the Law 9.434/1997 establishes that the brain death is the criteria to declare the death. Thus, the interruption of the gestation is not a crime, due to the absence of the subject of the criminal act.

The Court added that the Penal Code establishes two possibilities of abortion: the necessary (when there is risk to the life of the woman) and the humanitarian (when the pregnancy is the result of rape). To consider illegal the therapeutic anticipation of the birth, when the fetus has an incurable lethal anomaly, would be disproportionate, as the law establishes the humanitarian abortion, when the fetus is healthy. In both cases the aim is the physical and mental health of the woman. Thus, the Court considered that the legislator did not insert such possibility of “abortion”, because the Code dates back to 1940, when there was not exam to diagnose such anomaly.

In a separate concurring opinion, with a diverse fundament, a concurring Justice considered that the interruption of the gestation is the criminal conduct defined as abortion, as the anencephalic fetus could be born alive, though with a short life. But the anencephaly of the fetus would be a justification to the crime of abortion. He distinguished the situations of brain death and anencephalic fetus. In the former the person only breathes through medical ventilators, whereas in the later the person has cardiac and respiratory autonomy. The Justice decided to set a progressive construction that updated the penal law, in accordance with the 1988 Constitution. Thus, he understood that the lack of the justification of the interruption of gestation would be a legislative omission, which is not compatible with the Penal Code (as it establishes the humanitarian abortion), nor with the Constitution (which protects the woman’s right to privacy, intimacy and the autonomy of the will). He emphasized that, in this case, the Court was issuing an interpretative decision with additive effects in penal matter. He highlighted that, as it was a in bonam partem decision, the principle of legality and the principle that the elements of the crime must be previously defined were not breached.

In a dissenting opinion, a Justice denied the claim, on the ground that the interpretation of the rule in accordance with the Constitution only can be done when the rule is constitutional. This method does not allow the creation of a new rule to authorize abortion; otherwise the Court would usurp the competency of the National Congress.

In another dissenting opinion, another Justice denied the claim because not only when the fetus is capable of full organic and social development he has legal protection. Hence, as the anencephalic fetus is alive and is not equivalent to the brain death, the interruption of the pregnancy is the crime of abortion. He added that the argument of the unviable life would fundament the abortion in cases of another anomalies and, even, in cases of euthanasia.

 

Full text in Portuguese

 

The rules issued by the Ministry of Development, Industry and Foreign Trade and the Environment National Council prohibiting Brazil´s importation of used consumer goods, especially tires, are constitutional, since such measures meet the constitutional right of a heath, ecologically and balanced environment, and the pursuit of a sustainable economic development.

ADPF 101 - Official Gazette, 04.06.2012

This case refers to a claim of non-compliance with a fundamental precept, filed by the President under the allegation that judicial decisions were breaching the constitutional principles of the right to health (article 196) and the right to an ecologically balanced environment (article 225), because those decisions authorized the import of worn tires, which could be used as raw materials or as final goods in the domestic market. The plaintiff alleged that those decisions also breached various rules issued by the Ministry of Development, Industry and Foreign Trade and by the National Counsel of the Environment, which prohibited the import of worn consumer goods, mainly, the import of tires.

The Brazilian Federal Supreme Court, preliminarily and by majority, decided to hear the case, since the claim of non-compliance with a fundamental precept was the adequate procedure, because it has a subsidiary nature and the solution of controversies about the interpretation of fundamental principles does not have a specific procedure.

On the merits, also by majority, the Court partially granted the claim, to declare constitutional the rules that prohibit the import of worn tires. Hence, the Court held unconstitutional the judicial decisions that authorized the import of these tires. The Court excluded from this ruling the decisions that became res judicata, if they were not challenged in a motion for relief, and the decisions that authorized the import of worn tires from the countries of MERCOSUR, if they were remolded, due to a ruling of an ad hoc Arbitration Tribunal of MERCOSUR, on grounds of agreements signed between Brazil and other countries of the bloc.

The Court stated that the rules are constitutional, because they are in compliance with the constitutional rights to health, to an ecologically balanced environment and to the pursuit for a sustainable economic development. Such prohibition aims at avoiding the increase of the domestic liability since there are not efficient means to give an environmentally satisfactory disposal of such goods. Nowadays, serviceable tires are recycled or recapped and those unserviceable are incinerated, emitting pollutant gases in the atmosphere, or are disposed outdoors, serving as a place for the dissemination of tropical diseases. The government must act in the face of this situation, either under the principle of foreseeability (which states that the government must act when there is an actual harm) or under the principle of precaution (which states that the government must act to avoid possible or future harm).

These rules also comply with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which, signed by Brazil and incorporated to the national legal order, allows signatories to ban the import of hazardous wastes. Furthermore, the rules are in accordance with the legality principle, since they were issued by the bodies that are responsible for the regulation of activities related to the foreign trade.

The Court also highlighted that the import of worn tires could help the recycling industry and the creation of jobs. However, striking a balance between constitutional principles, the Court decided that the import of worn tires actually causes more harm to the environment and that the right to free enterprise and free trade can only be ensured to economic activities that are compromised with the environment (article 170.IV).

In a separate opinion, a dissenting Justice, on the preliminary question, argued that the claim of non-compliance with a fundamental precept should not be heard, because there were appeals to challenge the judicial decisions. On the merits, the dissenting Justice stated that the rules were not the adequate mean to prohibit the import of worn tires, because citizens only could be prohibited of performing an act if there was an expressly statute forbidding it, issued by the National Congress.

 

Full text in Portuguese

 

The press’ freedom is full and free and may not suffer any type of restriction or previous censorship. The issuance of laws shall be restricted only to secondary matters related to the press activity and shall not refer to its elementary characteristics. Despite being free, the press must respect other fundamental rights equally relevant, such as: the prohibition of anonymity; the right to reply; the right of the confidentiality of the information’s source, when the profession so requires; the right of compensation for damages or suffering loss, when there is a violation of intimacy, of the private life, of honor or of image.

ADPF 130 - Official Gazette, 06.11.2009

It refers to a Claim of Noncompliance with a Fundamental Precept filed by political party against the Law 5.250/1967 (Law of the Press). The subject of the constitutional claim is the declaration of the non-reception of the Law of the Press by the Federal Constitution of 1988 or the reception of some of its articles, grounded on the interpretation according to the Constitution, through which these norms should be considered constitutional only if they were interpreted in a manner that is compatible with the constitutional text in force. The claimant argued that the Law of the Press was framed in a period of military dictatorship, in order to abridge the freedom of expression. It is, thus, incompatible with democratic times.

The Brazilian Federal Supreme Court, by majority vote, granted the claim to declare that the Law of the Press was not received by the Federal Constitution of 1988. It was decided that each article has the same fundaments of the whole Law and of the dictatorship period in which it was issued. As these fundaments can not be amended, in order to keep only a part of the Law’s text, it is impossible to establish any type of hermeneutic conformation between the Law of the Press and the Constitution currently in force.

The Court asserted that the press’ freedom is strongly related to democracy and to the Rule of Law. The full freedom of the press, protected by the article 220.1 of the Federal Constitution, is necessary as a mean to instruct the public opinion and to divulge information that is not bound to the State. It was stated that the press’ freedom encompasses the freedom of opinion and the freedom of expression; it is, thus, related to the principle of human dignity and to the realization of the rights of personality.

It was decided, however, that, despite the press being “free” (Article 5.4) and “full” (Article 220.1), it must also observe other fundamental rights guaranteed by the Constitution, such as the prohibition of anonymity (Article 5.4), the right to reply (Article 5.5), the right to compensation for damages or suffering loss in case of violation of intimacy, of the private life, of honor or of image (Article 5.10), and the right to confidentiality of the information’s source, when the profession so requires (Article 5.14). Thus, at first, we must ensure the full exercise of the press’ freedom and after check any breach to other fundamental rights, with the consequent civil, criminal or administrative liabilities.

The Court stated that it is not possible to issue laws regarding the basic features of the press, such as, for example, those that may rule the content, establishing restrictions or any type of previous censorship. The only matters which may be subject to law are those that secondarily concern it, such as those that rule the consequences and liabilities from its abusive exercise.

In dissenting opinions, it was argued that the existence of a law of the press is needed, so that other constitutional values can also be fully exercised, such as, the rights to honor, to privacy, to reply, and even to human dignity. It was also argued that the laws regulating the means of communication would not be incompatible with democracy or the Rule of Law. Several democratic countries adopt this type of law. The Court added the argument that the existence of a law of the press, besides ensuring the exercise of the press’ freedom against the State, would also ensure this freedom against possible abuses committed by the press itself. Finally, the application of the technique of the interpretation according to the Constitution of some articles of the Law of the Press would be appropriate in order to avoid the lack of regulation about essential subjects to the exercise and to the effectiveness of the press’ freedom, such as the articles related to the right to reply.

 

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The same-sex unions are considered family units and the rules applied to the steady unions between man and woman are applied to the same-sex unions, until the National Congress enacts specific law that rules the matter.

ADPF 132 - Official Gazette, 14.10.2011

This case refers to a Claim of Noncompliance with a Fundamental Precept (ADPF, in the Portuguese acronym) filed due to the judicial interpretations that were been given to the articles 19.2, 19.5, 33.1 e 33.10 of Decree-Law 220/1975 (Rio de Janeiro Civil Servants’ Statute). The interpretations were withdrawing from homoaffective unions the rights given to hetero ones.

               The claimant requested, in the case the ADPF was not the proper action to file, that the Court would hear it as a Direct Claim of Unconstitutionality (ADI, in the Portuguese acronym) in order to give interpretation according to the Constitution to the abovementioned articles of Decree-Law 220/1975 and to the article 1.723 of the Civil Code, so that same-sex unions would be acknowledged as family units.

               The Brazilian Federal Supreme Court, preliminarily and unanimously, heard the ADPF as ADI considering the fact that another ADI had been filed with the same main theme and considering the subsidiary nature of the ADPF. The Court declared, also preliminarily, that the plea concerning the interpretation of the dispositions of the Decree-Law 220/1975 became moot due to Law 5.034/2007 of the State of Rio de Janeiro, that set forth that partners of same-sex unions are equal to the ones of hetero unions to the purposes of social security benefits.

               The Court, in the merits, granted the action in order to construe interpretation pursuant to the Constitution to the article 1.723 of the Civil Code, so the same-sex unions are acknowledge as family units and to apply to them the rules set forth to steady unions of different-sex couples. The Court held that neither the sex nor the sexual orientation of a person can set grounds to legal inequality, pursuant to the constitutional guarantee that forbids prejudice (article 3.4). The use of one´s sexuality falls into a sphere of private autonomy and it is also a fundamental right, which is the reason why it is considered an indelible clause.

               The Court stated that as the Constitution established the family as the society ground (article 226, caput), it gave a especial state protection to it, without making any distinctions to its format or composition. The Constitution limits itself to acknowledge family as a private institution, voluntarily composed by adults, and it maintains a trichotomous relationship between the State and the society. Thus, what is not legally forbidden – or mandatory – is legally allowed. 

In complementary votes, the Justices stated that the homoaffective relationship does not feature as steady unions – that requires the partners to be of different sex (article 226.3 of the Constitution) and are a specific kind of family unit.  However, the Court should utter its view on the matter in order to apply the rules of steady different-sex unions to the ones of same-sex – if provided all factual elements of visibility, durability and continuality (article 1723 of the Civil Code) - until the Brazilian Congress enacts law ruling the matter

 

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Law 6.683/1979 (Amnesty Act) was received by the Federal Constitution of 1988. The act granted broad and comprehensive amnesty, which comprised agents of repression and the opponents of the dictatorial military regime who have committed electoral or political crimes or crimes related to those offenses – that is, any kind of crime that had political motivation – during the period from September 2, 1961, until August 15, 1979.

ADPF 153 - Official Gazette), 06.08.2010

This case refers to a claim of noncompliance with a fundamental precept was filed to declare that the article 1.1 of Law 6.683/1979 (Amnesty Law) was not received by the Federal Constitution of 1988. Alternatively, the claimant demanded that the Act should have an interpretation according to the Constitution through which the amnesty granted would not include non-political crimes committed by agents that carried out the repression of political opponents during the dictatorial regime.

The Brazilian Federal Supreme Court, by majority, denied the claim. The Court declared that Law 6.683/1979 is compatible with the Constitution and that the amnesty then granted is broad and comprehensive, as it comprises the agents of repression and the opponents of the military regime who have committed electoral or political crimes or crimes related to those offenses – that is, any kind of crime that had political motivation.

The Court denied the argument that the act would violate the right of citizens to get from public bodies information related to individual or collective interests. It explained that the right to access information related to the dictatorship period does not depend on the prosecution of those responsible for crimes. Besides, the access to information does not depend on the prosecution of those responsible, because the amnesty was objective, as it comprised facts and offenses, instead of determined individuals.

The Court also rejected the argument that the act breached the democratic and republican principles, once it was approved and sanctioned by military personnel that were not chosen by the people. The Court stated that such argument would imply the negation of the legal institute of the reception of laws approved before the Constitution of 1988. It added that the amnesty of the act of 1979 was restated in the text of the Constitutional Amendment 26/1985, which established the guidelines for the constitutional power of the Constitution of 1988. Hence, to question whether the amnesty was received by the Constitution of 1988 or not does not make sense.

The Court stated that the concept of “crimes related” to political offenses must be construed according to the historical moment of the sanction of the act. The Amnesty Law is an act-measure that rules interests that have immediate and concrete effects. Such acts must be interpreted according to the historical moment in which they are issued. During the transitional period from dictatorship to the new democratic order, there was a lasting debate that leaded eventually to the approval of a political agreement. One outcome of this agreement was the Amnesty Law. In that context, the amnesty was bilateral, broad and comprehensive, but it was not unrestricted because it did not comprise those who already were sentenced.

Lastly, the Court also emphasized that the Amnesty Law was issued before the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Law 9.455/1997, that defines the practice of torture as a crime. Hence, the Amnesty Law is not under such norms. Besides, the article 5.43 of the Federal Constitution that declares the practice of torture as a crime that is not subject to grace or amnesty does not rule amnesties granted before the promulgation of the Constitution.

In a separate opinion, a dissenting Justice interpreted the article 1.1 of the Amnesty Law according to the Constitution in order to permit judges to analyze in a case-by-case basis, considering the preponderance and the atrocity of the means, if there was a non-political crime, not related to political offenses.

In another separate opinion, the dissenting Justice, interpreting the act according to the Constitution, excluded from the amnesty those that committed heinous crimes established in the article 5.43 of the Federal Constitution and the equivalent crimes, such as murder and rape.

Full text in Portuguese

 

The Brazilian prison system falls within the concept of “unconstitutional state of affairs”, considering the factual situation of the prisons that implies widespread violation of prisoners´ fundamental rights, due to persistent acts and omissions of public authorities and whose change relies on regulatory, administrative and budgetary measures.

ADPF 347 - Official Gazette, 19.2.2016

The Socialism and Freedom Party (PSOL, in the Brazilian initials) filed a Claim of Non-compliance with a Fundamental Precept, with a preliminary injunction, in order to acknowledge the “state of unconstitutional affairs” of the Brazilian prison system and to impose broad normative, administrative and budgetary remedies to relief the violation of prisoners´ fundamental rights.

The claimant stated that the request is based on the representation of the Clinic of Fundamental Rights of the Law School of the University of the State of Rio de Janeiro, which offered a report on the Brazilian prison system. According to the claimant, the data demonstrates that the factual condition of prisons is incompatible with several constitutional provisions. It argued that such a situation results from acts and omissions of the three branches, involving the three levels of government. Therefore, it requested the release of resources from the National Penitentiary Fund, the implementation of custody hearings and other measures related to Brazilian judges, especially the adoption of alternatives to pretrial detention. On the merits, the claimant required the development of national, state and district plans by the Government, to be monitored by the Supreme Court, in order to overcome the unconstitutional situation.

The Brazilian Federal Supreme Court examined the injunction and partially granted the motions, by majority, in accordance with the rapporteur’s opinion. Unprecedentedly, the Court acknowledged the concept of "unconstitutional state of affairs", initially formulated by the Constitutional Court of Colombia, and stated that, although it is difficult to conceptualize such terminology, it may be identified from the opposite direction, i.e., acknowledging what doesn´t fall within that concept. From this premise and considering the requirements stipulated by the Colombian Court –  widespread violation of fundamental rights, inertia of  public authorities and the need for joint action to overcome the problem –  prison system in Brazil fit into the frame of "unconstitutional state of affairs".

According to the Court, the data about prisons´ lack of capacity, overcrowding in the cells and the poor condition of building installations (hydraulic and electrical) demonstrates this scenario. The prisoners´ situation implies violation of several constitutional provisions – especially the ones related to the dignity of the human person, the prohibition of inhuman or degrading treatment, and the prohibition on cruel penalty – and of domestic and international law. In addition, the penalty does not achieve the purpose of rehabilitation. On the contrary, the data shows high recurrence rates (around 70%), reflecting in the increase of crime and social insecurity.

The Court pointed out that the responsibility for the widespread and permanent violation of prisoners´ fundamental rights cannot be attributed to a single public authority. In fact, it is a historical malfunction framework of the State, including the Federal Government, the states and the Federal District, and considering the three branches, including the Judiciary, given the high number of pretrial prisons ordered. Therefore, the solution of the problem involves the coordinated action of all these entities.

In this context, the role of the Supreme Court is precisely to coordinate the actions of the bodies involved and to monitor the results. The Court stressed, however, that the competent bodies will choose the content of the actions to be monitored. Therefore, there is no offense to the separation of powers. The intervention of the Court is legitimized by the State’s failure to ensure minimum conditions for dignified existence to the prisoners. The Court highlighted that this group has no direct political representation – as the convicts have their political rights suspended while the criminal sentence is effective – neither is part of the political program of the candidates, what reinforces the Court´s intervention.

On these grounds, the Court ordered the release of the accumulated budget of the National Penitentiary Fund, which was established in order to promote improvements in the prison system. The Court also determined that judges and courts of Brazil perform custody hearings in up to ninety days, enabling the attendance of people arrested in flagrante delicto before the judge within 24 hours, counted from the time of arrest, as provided for in the Articles 9.3 of the Covenant on Civil and Political Rights, and 7.5 of the American Convention on Human Rights, signed by Brazil and thus incorporated into domestic law. The Court considered that the measure will entail the reduction of prison overcrowding and the decrease of spending on pretrial custody.

On the other hand, the Court denied, by majority, the request in order to demand that judges expressly justify whenever alternative measures other than pretrial custody are determined. The majority considered that such requirement is already included in the Code of Criminal Procedure and the Court´s pronunciation on this regard would give rise to constitutional claims for non-compliance with its own decision.

Finally, considering the request on the merits about improvement plans, the Court, by majority and with no specific request to do so, determined the federal and state governments to provide information about their each prisons´ situation.

 

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The proceedings to impeach the President of the Republic under Law 1079/1950 are legitimate, if the legal text is interpreted appropriately, in the light of the current Constitution.  

ADPF 378 MC – Official Gazette, 8.3.2016

The Communist Party of Brazil (PCdoB) filed a complaint of non-compliance with fundamental precept to determine whether the impeachment proceedings under Law 1079/1950 are compatible with the current Constitution.

In the case, on December 2, the Chamber of Commons Speaker authorized the initiation of impeachment proceedings against the President of the Republic, Dilma Rousseff. On December 8, the Chamber elected Deputies to form the special committee responsible for analyzing the request and issuing a report on the allegations. At the time, each political party leader appointed representatives to form candidacies of deputies to join the committee, after the Full Chamber vote. However, the opposition understood this procedure privileged the government. As so, it launched alternative candidacies, formed by deputies from parties of the opposition and dissidents from the governing coalition. At the end, the election of members to the special committee included the spare candidacies and it was held by secret vote.

The claimant rebelled against the procedure in this election and requested an injunction relief to determine the voting to be opened, observing the rules concerning the representatives’ appointment by party leaders – hindering alternative candidacies – and parties´ proportional representation. It also required the annulment of the Chamber Speaker’s decision, which had received the impeachment claim, arguing the right to prior defense was not respected. 

Initially, the rapporteur partially granted the relief to suspend the proceedings, until the Full Court rule on the complaint requests. The Brazilian Federal Supreme Court decided on the constitutional legitimacy of the proceedings under Law 1079/1950 for the impeachment of the President of the Republic. The law was analyzed in the light of the 1988’s Constitution to determine which rules had remained in force after its promulgation and how these rules shall be interpreted. As a general line, the Court affirmed the rules established to 1992’s impeachment.

The Court unanimously held that the President has no right to prior defense to the decision of the House Speaker that authorizes the impeachment proceedings to initiate, since such decision  consists of a mere admissibility act and the full defense is ensured by numerous opportunities to further manifestation. Moreover, the prior defense is not a requirement of the full defense constitutional principle, but an exception that must be provided by law. However, as regards to the procedure of the special committee election, the Court ruled the vote shall be opened and candidacies must be formed by the representatives appointed by the leaders of political parties.

The Court stated that the House internal rule provides that the leaders of both parties and parliamentary groups shall appoint their representatives. Therefore, the Full Chamber cannot choose other members alternatively. Such spare candidacies weaken the party autonomy and the constitutional guarantee to a proportional representation of parties or parliamentary groups in the committees. In dissenting opinions, Justices claimed this matter is interna corporis and the Judiciary could not hinder a choice made by the Chamber when performing its duties.

As for the opened vote, the Court held that Legislative acts´ publicity stems from the democratic principle, the republican regime and the representative system. It allows greater transparency, popular control over the representatives and the process legitimacy. Moreover, the rules on the procedure of impeachment (CF, Law 1079/1950 and internal rules) do not provide for secret vote on this matter. Therefore, the Chamber Speaker cannot take such an individual decision, based on his own discretion. Secret vote is an exception that must be established by law specifically. Furthermore, it is incompatible with the nature and severity of the impeachment proceeding. In contrast, the dissenting Justices stated secret ballot ensures freedom and independence of Congress, as the voters would not suffer pressure and undue interference.

Regarding the compliance of the impeachment law with the current Constitution, the Court held the competence of congress houses had changed. In the 1946’s Constitution, the Chamber of Deputies was responsible for both admitting the impeachment proceedings to initiate and trialing the charges with the President of the Republic. The current Constitution has set the Chamber of Deputies shall only authorize the start of proceedings (Article 51, I), while the Senate shall exclusively prosecute and trial the President (Article 52, II). The Court held that such authorization is a proceeding condition to start the case. The procedure is not initiated by the Chamber, not this House has the power to determine the Senate to do so. Thus, the phrase "prosecute and trial" which refers to the Senate´s competence encompass issuing a prior decision on whether the process shall actually be established. The understanding that the Senate could not dismiss the Chamber´s authorization did not prevail.

Due to the change of roles of congress houses concerning the impeachment procedure, the Court decided unanimously that probative finding within the Chamber is not appropriate. It shall occur within the Senate, which is currently responsible for judging the merits of impeachment charges. 

The Court established that all the probative finding developed in the Senate must obey the rule that the defense presents arguments after the prosecution. Thus, the procedure follows the usual procedure of criminal actions filed directly before the supreme court, in accordance to the principles of legal defense and contradictory, so that the accused hearing is the final act of probative finding. In a dissenting opinion, a Justice decided the need for the President´s hearing before the prosecution, at the time when the procedure is received in the Senate, on the ground that it is a consequence of the due process clause.

The Court decided, by majority, that the initial procedure requires a simple majority of votes instead of two-thirds (higher quorum). As the Law 1079/1950 does not provide a specific standard for this initial act, it shall follow the solutions adopted on the 1992’s impeachment. At the time, the Supreme Court decided to apply, by analogy, the rules to impeach the Supreme Court Justices and Attorney General of the Republic. Thus, the Court set supermajority vote is required exclusively for the Chamber´s initial authorization and to the Senate´s trial on the merits of impeachment charges. The Court also ruled, on the same grounds, that the Senate has no competence to dismiss the impeachment procedure forwarded by the Chamber of Deputies. 

Unanimously, the Court established the rules of suspicion and impediment provided for judges in the Code of Criminal Procedure cannot be supplementary applied to the Chamber Speaker. Law 1079/1950 provides for specific situations and there is no legal gap to be filled by supplementary application. Moreover, it is not even appropriate to equate judges, from whom is required full impartiality, to congressmen, who must perform their duties, supervising and judgment, based on their political and party convictions and the will of the ones they represent.

The Court established senators can accumulate both roles, to judge and accuse, and take all measures needed to assess the President´s impeachment charges. The impeachment proceeding is a constitutional instrument of political and administrative control to oust the occupant from public office through political institutions (in this case, the Chamber of Deputies and the Senate), in order to protect the State.  The person in charge of office in not the object of impeachment, but the office– regardless of who is in charge –, since it aims at maintaining or reestablishing proper functioning of the public administration and the State´s institutions as a whole. Considering the procedure is not judicial, it is not appropriate to convey guarantees inherent to ordinary criminal cases to the political sphere of impeachment crimes.

Finally, the Court ruled the legitimacy to supplementary apply the congress houses’ internal rules to the impeachment proceeding, as long as the provisions comply with appropriate legal and constitutional provisions, and are limited to the congress houses’ self-organization. There is no violation of the principle of reservation to special law, since it is not required that only laws passed by congress can provide about the matter.

 

Full text in Portuguese

 

The disclosure of civil servants´ names and salaries, on websites maintained by the Public Administration, is legitimate. 

ARE 652.777 - Official Gazette, 1.7.2015

This case refers to an extraordinary appeal in which the Supreme Court discussed whether the disclosure of civil servants’ names and salaries, on the official website of the Municipality of São Paulo, is legitimate.

The judge, in the first instance, determined the removal of a civil servant’s name and salary from the official website, as well as a compensation for non material damages, reasoning that the disclosure had no legal or constitutional basis. The judge considered legitimate only the disclosure of the salaries of each office, preserving civil servants´ names, under penalty of violating the rights to intimacy and individual safety.

The Municipality of São Paulo alleged the violation of Articles 5.XIV; 5.XXXIII; 37, caput and; §3.II; 39.§6; 31.§3 and 163.V of the Federal Constitution. It argued that the disclosure is constitutional and it is based on the principles of publicity, information and transparency. It also pointed out that the disclosure of the salaries received by holders of public offices is a self-enforcing constitutional duty of the Public Administration. The municipality asserted that the salary is public information and is linked to the civil servants; therefore, the disclosure does not violate their personal intimacy or privative life. It affirmed that the exposure of government spending allows a more effective control by society. It claimed also that the disclosure of these data does not feature among the secrecy exceptions established in the Constitution. Finally, the municipality stated that, on the subject of access to information, the Constitution itself prioritizes the public interest over the private interest of inviolability of intimacy and safety of the individual.

The Brazilian Federal Supreme Court unanimously upheld the extraordinary appeal. The Court based the decision on the case SS 3902 AgR reasoning (Agravo Regimental na Suspensão de Segurança 3902). The Court highlighted that the case presented an apparent conflict between the principle of administrative publicity and the individual right to privacy and inviolability of private life. According to the Court, civil servants are ruled by the constitutional provision that everyone is entitled to receive from the Public Administration information concerning private, collective or general interest. Information about salary, offices, and organs where civil servants work are all of general interest and may be revealed. The duty of transparency is removed when the secrecy is essential to society and state safety. It is not what happened in this case. Thus, there was neither violation of personal intimacy and private life nor any non-material damages justifying compensation since the data released refer to a civil servant holding public office. The possibility of threat to civil servants’ personal security as well as to their family caused by nominal disclosure of their salary is diminished by the prohibition to reveal details such as address and identity documents.

Finally, the Full Court established the following thesis with general repercussion effects:  the disclosure of civil servants´ names and corresponding salaries, on websites maintained by the Public Administration, is legitimate. The Court stressed that this understanding is in accordance with the Access to Information Federal Act (Law 12527/2011) that establishes the duty of governments to disclose information of general interest, produced or guarded by them, upon request or not, within their competence.

 

Full text in Portuguese

 

The statute of limitation to recover uncollected contributions for the Unemployment Guarantee Fund runs in five years.

ARE 709.212 - Official Gazette, 18.2.2015

This case refers to an extraordinary appeal in which the Court discussed whether the thirty-year period of limitation to recover uncollected contributions into the Unemplyoment Guarantee Fund (hereinafter FGTS, as in the Portuguese acronym) is constitutional.

A Bank of Brazil employee filed a labour complaint in 2007 requiring uncollected amounts for the FGTS, from May 2001 to December 2003, when she had worked for the bank abroad. The Superior Labor Court affirmed the decision of the Labor Court of Appeals. The Superior Court understood that the employee was entitled to the values that had not been paid, to be calculated over all salary nature installments, applying the thirty-year period of limitation.

The employer – Bank of Brazil – filed an extraordinary appeal against that decision, arguing that the period of limitation should run in five years under Article 7.XXIX of the Federal Constitution. According to the Bank, the FGTS has a labour nature and such constitutional provision expressly provides that the period of limitation to “credits arising from employment relationships” runs in five years.

The Brazilian Federal Supreme Court, by majority, considered that the period of limitation to recover amounts owed by employers to the FGTS runs in five years. The Court pointed out that its previously prevailing case law, which applied a thirty-year term, is incompatible with the principle of reasonableness. The Court stressed that the discussion core revolves around the Fund’s legal nature: tax, social security, social or labour nature. After the analysis of the case law evolution, the Justices observed that the Court had already acknowledged that the FGTS is an autonomous right, of a social and a labour nature. However, the Court was still applying the thirty-year term as a privilege granted by law.

Accordingly, articles 23.§ 5 of Law 8036/1990 and 55 of the FGTS Regulation, approved by Decree 99684/1990, which provides for the thirty-year privilege period of limitation, were declared unconstitutional. Since the Court found that the Fund has a labour nature, such period is incompatible with the one set under Article 7. XXIX of the Federal Constitution. However, due to the substantial change in the Court’s case law, the Justices, by majority, decided to grant ex nunc effects to this declaration of unconstitutionality.

In dissenting opinions, the Justices found that the FGTS has two different legal relations: the first one, established between the Fund and the employer, in which the FGTS is neither salary nor labour-related payment, ousting the application of the constitutional term. The second one, established between the Fund and the employee, in which there is a substantial labour legal nature, allowing, thus, the application of the constitutional term. Therefore, there are two different periods of limitation. As so, the traditional jurisprudence can be applied due to both the principle of protection to workers and the most beneficial rule. 

 

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As of the Constitutional Amendment 45/2004, the Labor Court System has jurisdiction over actions for damages due to occupational accident.

CC 7.204 - Official Gazette, 09.12.2005

 

A negative conflict of jurisdiction was brought before the Brazilian Supreme Court, in order to determine which jurisdiction should try and judge actions for damages due to occupational accident: the states ordinary courts or the labor courts.

The Brazilian Federal Supreme Court, by majority vote, decided that, as of the Constitutional Amendment 45/2004, the Labor Court System has jurisdiction over actions for damages due to occupational accident. The Court explained that this Constitutional Amendment expressly stated the jurisdiction of labor courts over such cases (article 114.6 of the Federal Constitution), overruling the previous case law, according to which the states ordinary courts had jurisdiction to try and judge them.

The change of jurisdiction conveyed in this decision was applied to all proceedings before the states ordinary courts, in cases pending judgment. These proceedings were delivered to the Labor Court System. Furthermore, the acts already performed in these proceedings before the states ordinary courts could be considered valid by the labor courts. The Brazilian Supreme Court could deliberate on how to apply this decision because, acting as the guardian of the Constitution, it can and must give prospective effects to its judgments, with detailed limitations, in order to guarantee legal certainty. This power can be exercised whenever the Court changes its case law about jurisdiction ex ratione materiae.

A dissenting Justice, in a separate opinion, argued that the labor courts had jurisdiction over actions for damages due to occupational accident, before the Constitutional Amendment 45/2004 was enacted. Accordingly, the previous norm of the head of the article 114 already established the jurisdiction of the Labor Court System over individual and collective controversies between workers and employers.

The understanding set in this case, combined with other precedents, led the Brazilian Supreme Court to issue the Binding Precedent 22, which reads as follows: “The Labor Court System has jurisdiction to try and judge actions for damages due to occupational accident filed by the employee against the employer, even over cases pending judgment, before first degree courts, when the Constitutional Amendment 45/2004 was enacted.”

 

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In extradition cases, the Supreme Court has competence to verify the legal and constitutional requirements of the request. The President of the Republic has the final decision to grant the request, in the exercise of Brazilian international sovereignty. Disputes among sovereign states on treaties enforcement must be resolved by means of international law.

Ext 1.085 PET-AV, Official Gazette, 3.4.2013

This case refers to a motion on extradition to release the person claimed. He was temporarily arrested due to an extradition request filed by the Republic of Italy, which had been previously granted by the Supreme Court, but denied by the President. He alleged that the President´s refusal to extradite would allow his immediate release and that the refusal could not be reviewed by the Judiciary Branch, since it’s a matter of international policy decision.

The Brazilian Federal Supreme Court, by majority vote, granted the request of the person claimed. Initially, the Court established that its role, in the analysis of an extradition request, is limited to verifying the legal and constitutional requirements of the extradition. If there is any irregularity, the Court hinders the delivery of the person claimed. However, if the Court authorizes the delivery, it submits the final decision to the President´s political and international criteria. Such dichotomy exists because the Judiciary is the guardian of the individual´s fundamental rights, even foreigners rights, while the interests of other States should be negotiated before the President, who is responsible for maintaining relations with foreign states, pursuant to Article 84.VII of the Constitution.

The President´s extradition refusal act does not contravene the Court's decision, which had previously granted it. This is because such act is based on Article III.1.f of the Extradition Treaty, which authorizes the extradition refusal, if there is an assumption that the situation of the person claimed could be aggravated, because of his political activity history. The President is the only one who has jurisdiction to enforce such Article as he (or she) represents the international autonomy of the Brazilian State. He will interpret the political context and the legal nature of the crimes to corroborate the decision on the request of extradition. The Brazilian Supreme Court has no constitutional competence to review this act of foreign policy, according to the constitutional principles of sovereignty and separation of powers. Occasional breach of the Extradition Treaty would raise a controversy among sovereign states, whose resolution must be done through international law instruments.

In separate opinions, dissenting Justices defended that the President of the Republic should deliberate about the political expediency of the extradition, before submitting the request to the Supreme Court. After the judicial decision, if there is an extradition treaty, as it occurs in the present case, the President of the Republic should decide in compliance with the treaty, as treaties, after their incorporation into the Brazilian legal system, are binding to all Branches of the State. Hence, the President of the Republic could not arbitrarily refuse to extradite. In this case, there was an illegitimate refusal of the extradition, because the President considered that the crimes attributed to the person claimed were political and such qualification had previously been denied in the first decision of the Brazilian Supreme Court on this case.

 

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The law that establishes the double time to appeal to the Offices of the Public Defenders, despite being unconstitutional, since the Offices of the Prosecutors, which are the adverse party in criminal cases, have simple time to appeal, must continue in force, because the Offices of the Public Defenders have a deficient organization and infrastructure, especially if compared to the Offices of the Prosecutors.

HC 70.514 - Official Gazette, 27.6.1997

This case refers to a petition for a writ of “habeas corpus” filed to declare the constitutionality of article 1.§5º of the Law 1.060/1950, which established the double time to appeal to the Offices of the Public Defenders, both in civil and criminal cases, and to annul a decision that judged the appeal filed by the Office of the Public Defenders untimely. The issue was about the diverse time to appeal applied to the Offices of the Prosecutors, since it is simple in criminal cases, in which they acts as the accusation party, and is doubled in civil cases.

               The Brazilian Federal Supreme Court, preliminarily, by majority vote, declared the law still constitutional (which means that the law is unconstitutional but the Court does not declare its nullity). On the merits, the Court, by majority, annulled the decision challenged and remanded the case to the second degree court. The Supreme Court decided that the due process has as its premise the principle of the procedural equality. However, the facts show that the Offices of the Public Defenders have deficient organization and infrastructure, especially if compared to the Offices of the Prosecutors. Hence, the law, despite being unconstitutional, must not be considered null, while the Offices of the Public Defenders are not organized with the structure that allows them to litigate equally with the Offices of the Prosecutors.

               In a separate opinion, a dissenting Justice defended the equality of time in the criminal procedure, either if it is to the prosecution or to the defense. Furthermore, he alleged that the assessment of the sufficiency of the Offices of the Public Defenders would breach the national uniformity of the Criminal Procedural Law, as some States could have better organized Offices of the Public Defenders, while others would not.

 

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The constitutional clause that provides that nobody shall be considered guilty before the claim has passed into res judicata includes all phases of the judicial proceeding, including that of special and extraordinary appeals. Thus, the arrest before the condemnation has passed into res judicata can only be rendered as a provisional measure.

HC 84.078 - Official Gazette, 26.02.2010

It refers to a petition for a writ of habeas corpus filed against decision that considered legal the issuance of an arrest warrant against the accused after the judgment of the appellate court that affirmed the condemnation of the trial court, even when special and extraordinary appeals were filed against the appellate court decision.

               The Brazilian Federal Supreme Court, by majority vote, granted the writ on the grounds that the arrest of the accused, after the appellation court judgment, is an anticipation of the punishment execution. This breaches the constitutional clause that provides that “nobody shall be considered guilty until the penal sentence has passed into res judicata” (article 5.57).  Accordingly, it was emphasized that, despite those appeals do not have suspensive effects, the full defense clause includes all phases of the judicial proceedings, including those appeals.

               In concurring opinions, it was added that the anticipated execution of the punishment violates the principles of the presumption of innocence, of the human dignity and of the proportionality. It was stated that the principle of the presumption of innocence does not progressively lose its effects as the case is sent to higher courts. It was stressed that the accused has rights and he/she does not lose such rights in order to become an object of the state action. It was alleged, lastly, that there is an offence to the principle of proportionality, because the arrest is unnecessary in such cases, once it is possible to apply the provisional arrest, if the provisions of article 312 of the Procedural Penal Code are met, as, for instance, to secure the administration of the law.  

               In dissenting opinions, it was considered that a balance between the accused rights and the society rights shall be made. It was stated that the finding of facts is completed before the trial and the appellate courts, which are the ordinary jurisdictions, and that the special and extraordinary appeals are set, usually, only to discuss the legal matter. It was added that the principle of the presumption of innocence is not absolute, because such presumption, after the trial court condemnation is affirmed by the appellate court, is superseded by the guilty judgment, grounded on the evidences brought before these low courts. Lastly, it was argued that the decision held by the majority would cause the prescription of punishments that would lead to the inefficiency of the penal system.

 

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It is unconstitutional the law that removes the judge's discretion to decide by replacing the imprisonment by restrictive of rights of the person who was convicted for the crime of drug traffic.

HC 97.256 - Official Gazette, 16.12.2010

This case refers to an habeas corpus filed against decision that found not to be possible to replace the sentence of imprisonment by the restriction of rights in the crimes of drug traffic. The petitioner requested the replace of imprisonment under the argument that the prohibition of this possibility, brought by the Law 11.343/2006, would be unconstitutional for offending the guarantees of the individualization of punishment (article 5.46), not exclusion of the Judicial Branch to ascertain injury or threat to a right (article 5.35) and proportionality between the offense and the punishment state (article 5.54), since the patient had trafficked small quantities of drugs.

The Brazilian  Federal Supreme Court, by majority vote, granted partially the order to declare, incidentally, unconstitutional the articles 33.4 and 44 of the Law 11.343/2006, in the part that forbade the replace of the sentence of imprisonment by the restriction of rights, and to return of the case to the judge of execution of the sentence in order to evaluate the circumstances of the case and verify the possibility of replacing the punishments.

The Court has established that ordinary law can not prescribe more rigorous penal treatment to heinous crimes and to similar offenses above the provisions of the Federal Constitution. The Constitution, in the article 5.43, only consider non-bailable and not subject to grace or amnesty the crimes defined as heinous.

The Court decided that the possibility of replacement of the punishment meets the principle of individualization of punishment, which involves three stages: the legislative, the judiciary and executive. The Court stated that on the judicial stage occurs the effective individualization of punishment when determines the penalty and the manner of its execution, considering the peculiarities of the case which are impossible to be legally exhausted. Thus, ordinary law can not remove from the judge, a priori, the discretion to decide the replacement of the punishment also alternatives. Moreover, the restraint of rights works as an exceptional alternative to imprisonment, since the prison is not the only sanction capable of punishing the criminal or to promote the social recovery or to prevent such behaviors.

In a separate opinion, a dissenting Justice held that the replacement of the sentence of imprisonment would not be appropriate in all of the crimes, according to the article 44 of the Penal Code. Thus, there would be less onerous crimes than the drug traffic (theft, for example) for which there would be no possibility of replacement of the imprisonment and no decision about the unconstitutionality of this prohibition. The Constitution would have treated the heinous crimes as more serious offenses to life in society and it would not serve only to set limits on state action, but also to set limits to human freedom, as an imperative of social life. By setting limits to the punishment for heinous crimes, the article 5.48 of the Constitution would have brought a list of minimum constraints, which would be confirmed by the article 5.46, which states that the law shall regulate the individualization of punishment and "adopt, between others" measures arranged on this (last) article.

 

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Article 41 of Law 11.340/2006 (Maria da Penha Act), which states that the domestic crimes committed against women cannot be processed by the procedural rite of Law 9.099/1995 (Small Courts Act) – directed for crimes of lower potential offensive – is constitutional because it aims at giving special treatment to acts of violence against women.

HC 106.212 – Official Gazette, 10.06.2011

This case refers to a writ of "habeas corpus" filed by the accused in order to not apply to his case the article 41 of Law 11.340/2006 (Maria da Penha Act). The article states that the domestic crimes committed against women cannot be tried by the procedural rite of Law 9.099/1995 (Small Courts Act), which regulates the trial of petty offenses. The plaintiff alleged that the conduct of the accused does not fit the hypothesis of article 41, for having committed a misdemeanor, not a crime, and that such article would be unconstitutional for giving special treatment to women.

The Brazilian Federal Supreme Court, unanimously, denied the order and declared article 41 of the Maria da Penha Act constitutional, under the argument that the Constitution gave the legislator the freedom to define which crimes will be considered petty offenses (article 98.I). In this case, the domestic crimes against women imply greater complexity, because they are also crimes against the family institution to which the Constitution established special protection (article 226).

The Court stated that Maria da Penha Act aims at restraining any violence against women, whether physical, psychological, social, material or moral. Thus, although article 41 of the Act refers to, literally, only "crime", it should apply to any violent act, including the criminal misdemeanors. The different treatment of domestic crimes committed against women does not breach the principle of equality, since this rule implies treating equally the equal ones, and unequally, the unequals.

Finally, the Court highlighted that the equal rights between men and women is recent in Brazil. This equiparation has gone through several steps, for example, by prohibiting the husband to kill the adulterous woman (Penal Code, 1830), the right to vote (Decree 21.076/1932), the acquisition of legal capacity by a married woman, even though it was a relative capacity (Statute of Married Women 1962), culminating today in the enactment of the Maria da Penha Act. Although the enactment of laws does not hold the power to change the social mentality, the Court recognized that they constitute the set of measures that seek to repair the historic differentiation between men and women.

 

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Parliamentary Committees of Investigation may order the disclosure of tax return, bank and phone data information, if they justify the adoption of these measures. They can not determine other actions ordinarily assigned to judges, such as order someone´s detention or seizure of assets.

MS 23.452 - Official Gazette, 12.05.2000

This case refers to a petition for a writ of mandamus filed against act of the Federal Senate Parliamentary Committee of Investigation (CPI, in the Portuguese acronym) which ordered the disclosure of tax return, bank and phone data information of the petitioner, besides issuing a search warrant. The petitioner argued that these acts were restrictive of his rights and were illegal. 

The Brazilian Federal Supreme Court, unanimously, granted the request. Initially, the Court stated that the acts of CPI can be controlled by the Judiciary Power if they violate the Constitution, since pursuant to the principle of limited Powers, there are no hegemonic institutions in the State. Moreover, the principle of separation of Powers does not relieve the parliament to respect the Constitution.

The Court decided that the investigative powers of CPIs, pursuant to article 58.§3º of the Constitution, are limited to evidence investigation. It does not include the powers ordinarily assigned to judges, such as punishment for crimes, arrest or seize assets orders. In addition, CPIs are required to justify the investigative measures that can restrict one´s basic rights.

On the other hand, CPIs may order the disclosure of tax return, bank and phone records data information if there are facts able to be proven in doing so and if they are indispensable for the investigation. The confidentiality relies on the right to privacy, but there are no absolute rights in the Brazilian constitutional system. Public interest reasons or the need to ensure the coexistence of freedoms make it possible to adopt right restricting measures by state agencies. 

Furthermore, the Court highlighted that CPIs may only have access to phone records information, which are the numbers and the duration of the calls made. They can not order call interceptions, which are the recording of conversations conducted through telephone. Only judges can order such measure, since they are only allowed within a research or investigation context of a criminal procedure, as stated in article 5.XII of the Constitution.

Finally, the Court warned that after having access to the confidential information, the CPIs are liable to maintain them secret. The disclosure to other society members can only occur if there is good cause to publish them: either in the final report on grounds of measures that need to be taken; or in the information to the Prosecutor Office or other public organs; or to meet the social interest in exceptional cases.

 

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In the proportional electoral system, it constitutes infidelity against a political party if a member of parliament disaffiliates himself/herself from the party after the consultation submitted to the Superior Electoral Court (27th of March, 2007), unless the situation is an exceptional one that justifies it.

MS 26.603 - Official Gazette, 19.12.2008

It refers to a petition for a writ of mandamus filed by a political party against act of the Deputies Chamber President that denied the party’s solicitation to declare the vacancy of the seats of the deputies that disaffiliated themselves from the party, because it constituted a presumed renouncement. The plaintiff alleged that he has the right to keep the seats he achieved in the election, grounded on a ruling of the Superior Electoral Court (TSE in the portuguese acronym) and on the proportional representative system. The deputies that were co-defendants, on the other hand, alleged that the disaffiliation from the party was legitimate, as there was a change in the party’s political ideals and oppression inside the party. They also argued that they did not renounce to their seats, as they intended to keep the exercise of their mandates. Lastly, it was pleaded that the answer to the consultation to the TSE, aiming at establishing if the party has the right to keep its seat achieved through the proportional electoral system after the member of parliament disaffiliates himself/herself from the party, exceeded the TSE powers, because the question is constitutional. Besides, it was stated that the answer was an innovation in the law, which is forbidden for the Judiciary Branch.

The Brazilian Supreme Court, despite stating that the seat belongs to the political party, because of the proportional electoral system, denied the writ, by majority vote, and acknowledged that the co-defendants members of parliament have the right to keep their seats. It was stated that there was a violation of the proportional system, once the minority’s right was breached and the sovereign will of citizens was deceived. These facts introduced destabilization factors in the practice of power. Despite this, it was explained that the ruling of the TSE is a change in the caselaw of that Court and, in order to safeguard the principle of legal certainty, it shall only be enforced after the answer to the consultation submitted to the TSE, which was held on the 27th of March, 2007. As the disaffiliations were made before that date, the request for a writ of mandamus was denied. It was stated that, exceptionally, the political party will lose the seats achieved in elections, when the disaffiliation from the party is grounded on political oppression or change of the party’s programmatic orientation, but this was not proved by the co-defendants. The Court stated that the consultation is set forth by the Brazilian law and, therefore, the TSE did not exceed its powers. Besides, the TSE, when answering the consultation, exercised its administrative powers, thus, the answer has no binding effects.

In dissenting opinions, it was argued that the dies a quo of this ruling shall not be the date of the answer of the TSE to the consultation, because this answer is not a legal norm and the Supreme Court shall not act as the Legislative Branch. The writ of mandamus shall not have limited retrospectivity or it will become a mere declaratory claim. In a request for a writ of mandamus, the order shall be granted or not. It was argued, lastly, that the affiliation or disaffiliation from the political party are included in the free association right and, although these acts are inconsistent, they are not illicit.  

 

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A vacant seat in the House of Representatives, due to a leave of a representative, must be filled by the deputy representative of the coalition of parties established in the elections, not by the deputy representative of the party to which belongs the representative on leave.

MS 30.260 - Official Gazette, 30.08.2011

This case refers to a preventive petition for a writ of mandamus filed to ensure the claimant the filling of a vacant seat in the House of Representatives due to the leave of a representative. He alleged that a vacant seat in the Parliament belongs to the party of the representative on leave, not to the coalition of parties established in the elections. In the information for the Court, the public official responsible for the impugned act alleged the lack of legitimacy of the claimant, once only the political party could file this claim. Regardless this, the public official also alleged that the claim became moot, because the deputy representative of the coalition had already been nominated to fill the vacant seat; thus, the threat to a right (requirement of the request for a writ of mandamus) no longer existed.

Preliminarily, the Brazilian Federal Supreme Court decided, unanimously, that the claimant, as well as the party, has legitimacy to file the preventive request for a writ of mandamus, because he would be the effective nominee to fill the vacant seat.

On the merits, by majority vote, the Court decided that the vacant seat due to the leave of a representative belongs to the deputy representative of the electoral coalition. The Court highlighted that article 17 of the Federal Constitution allows political parties freely bind together in electoral coalitions, in order to achieve better electoral results, helping small parties to elect their candidates. With such bond, each party loses its individuality and is presented to voters as a coalition. Whereas the Brazilian electoral system to the election of representatives is the proportional system, the electoral quotient helps the division of seats in the House of Representatives to the most voted candidates of the coalition as a whole. In this system, the party has no influence in the result. Even if the coalition is undone after the elections, its effects on the definition of the order to occupy the seats continue valid throughout the entire legislative term, in order to respect the decision of voters.

In a separate opinion, a dissenting Justice stated that the vacant seat always belongs to the party. The article 112.I of the Electoral Code establishes that the deputy is the most voted candidate of the party. Besides, voters do not vote for the coalition, but for the candidate himself, who belongs to a particular party. Furthermore, the coalitions of the elections should not be the parameter, because they are undone after the elections, and the alternation of seats among diverse parties would violate the required stability during a legislative term.

 

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The unions are legitimate to act on their own behalf as a procedural substitute of their members, in defense of collective, common or homogeneous rights. As so, its performance is extraordinary and reaches the several stages of the lawsuit: from cognizance procedure to the execution of the decision, in case of conviction. 

RE 193.503 - Official Gazette, 24.08.2007

This case refers to an extraordinary appeal filed against decision that did not accept the legitimacy of the union to file, as a procedural substitute, cases that aim at applying the labor collective-bargaining agreement.

The Brazilian Federal Supreme Court, by majority vote, granted the extraordinary appeal. Initially, the Court highlighted that the union, within its ordinary powers, may represent its members, on their behalf, if it obtains their express permission. On the other hand, when article 8.III of the Federal Constitution states that it the union is competent to defend the employees’ category rights and their individual or collective interests, including judicial and administrative issues, it allows the union to act as a procedural substitute. Thus, the union acts in its own name to promote the defense of collective, common or homogeneous rights, regardless the authorization of its members. In this case, it is only required a link between the rights defended and the union activity.  

The Court stated that the unions´ performance is extraordinary and it reaches the several stages of the lawsuit: from cognizance procedure to the execution of the decision, in case of conviction. Such prerogative contributes to the procedural economy and a speedy trial, since it prevents every member to, individually, promote the sentence execution. Moreover, such understanding complies with the historical evolution of trade union activities, as it avoids the identification of the employees and their exposure to possible reprisals from employer. 

In separate opinions, that partially granted the appeal, dissenting Justices acknowledged the legitimacy of the union to act as a procedural substitute, but they restrained it to the cognizance procedure step. Thus, the substitution would only be possible in order to obtain the recognition of certain collective rights to the category. Upon the execution of the sentence, it would be necessary to individualize the demand. As of that moment, the individual nature would prevail over the collective, limiting the unions´ action to the procedural representation. As so, the union would only take part in the lawsuit after the cognizance procedure step if the member authorizes.

 

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In disputes of a private nature, foreign states do not have immunity from jurisdiction, but have immunity from execution. The immunity from execution may be refused if the foreign state waives it or if it has assets that are not bound to the essential purposes of the diplomatic activity. 

RE 222.368 AgR - Official Gazette, 14.02.2003

This case refers to an internal appeal filed against decision that did not hear the extraordinary appeal. The challenged decision established that foreign states have no immunity from labor cases, but have immunity from execution. The appellant argued that it is innocuous to set aside the immunity from jurisdiction in view of the ineffectiveness of the jurisdictional provision, because of the immunity from execution.

The Second Chamber of the Brazilian Federal Supreme Court, by unanimous vote, denied the internal appeal. The Court acknowledged that, initially, the immunity from jurisdiction was regarded as absolute. However, this understanding was overruled in order to consider the immunity relative, in disputes of a private nature, mainly in labor cases. Such change resulted from legislative innovations in the international (European Convention on State Immunity of 1972) and internal rules of several countries.

On the other hand, immunity from execution still applies, and it may only be refused if the foreign state waives it or if it has assets that are not bound to the essential purposes of diplomatic activity. Nonetheless, the Court stated that the immunity from execution does not interfere with immunity from jurisdiction, they are recognizably different prerogatives, which, among other features, require specific waiver for each one. Moreover, the impossibility of execution does not prevent the ruling from being applied spontaneously.

 

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The inviolability of the res judicata can be relativized in paternity suits, whenever it was impossible to determine the paternity tie, due to the lack of evidence, because the party could not afford the DNA test and the government did not provide it.

RE 363.889 - Official Gazette, 16.12.2012

An extraordinary appeal was filed against decision that denied a paternity claim on the grounds that the res judicata is inviolable. The challenged decision held that a new suit cannot be filed, with the same parties and the same subject matter of others that became res judicata, regardless to the fact that these previous suits became res judicata because the plaintiff could not afford the paternity test. The appellant filed a new suit after the issuance of District Law 1.097/1996, which, after the previous suits became res judicata, established that the government should provide the paternity test for those who are granted legal aid.

The Brazilian Federal Supreme Court, by majority, granted the extraordinary appeal in order to relativize the res judicata of paternity suits, in which the paternity tie was denied due to the lack of evidence, because the party could not afford the DNA test and the government did not provide it.

The Court stated that the right to legal certainty, as every fundamental right, is not absolute and, in this case, it opposes the biological truth – or the filiation right. The right to the biological truth, as a strictly personal right, unavailable and not subject to the statute of limitations (article 27 of the Child and Juvenile Statute), is tightly fastened to the right to personality and to the principle of the human dignity. Accordingly, applying the method of the balance of values, the Court concluded that such right outweighs the principle of the legal certainty.

In separate opinions, dissenting Justices defended the inviolability of the res judicata, on the grounds that, if the res judicata could be relativized whenever it opposes other essential fundamental right, like freedom, criminal decisions would not become res judicata. They added that, even without the DNA test, other evidences established in the law could be used to prove the paternity tie. Lastly, if the test asserts the paternity of the probable father, his dignity could be weakened, because, after many years, such news could unsettle his family.

 

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Professional corporations shall pay the Social Security Contribution (COFINS, in the Portuguese acronym), as the article 56 of the Law 9.430/1996 abrogated the exemption granted to such corporations by the Supplementary Law 70/1991.

There is no hierarchy between the ordinary law and the supplementary law. They differ only in their constitutional grounds, as the Federal Constitution may establish that some affairs shall be provided for by supplementary law.

RE 377.457 - Official Gazette, 19.12.2008

This case refers to an extraordinary appeal filed against decision that judged valid the abrogation of the exemption, to professional corporations, of the Social Security Contribution (COFINS, in the Portuguese acronym), set forth by the article 6.2 of the Supplementary Law 70/1991. Such abrogation was established by the article 56 of the Law 9.430/1996, which is an ordinary law. The appellant pleaded that the principle of the hierarchy of law (article 59 of the Federal Constitution) was breached, once an ordinary law abrogated the exemption that was provided for by a supplementary law. Furthermore, he alleged that the exemption would constitute a new indirect hypothesis of social contribution. This would breach the constitutional provision of articles 149 and 146.3, which provide that this matter shall be regulated through supplementary law.

The Brazilian Federal Supreme Court recognized the general repercussion of the constitutional matter and, by majority vote, denied the extraordinary appeal, because the aforementioned abrogation was possible. The Court decided that the ordinary law is not hierarchically under the supplementary law, as there is no hierarchy between them. They are different types of norms, because the Federal Constitution provides that some subjects shall be regulated exclusively through supplementary law. It was emphasized that, whenever supplementary law regulates some subject that should have been ruled by ordinary law, the former will be only formally a supplementary law, but its content will keep being a subject to be ruled through ordinary law.

Furthermore, the Court stated that the specific elements of the taxable event of social contributions shall not be necessarily ruled through supplementary law, notably the COFINS (article 195 of the Constitution). Accordingly, the ordinary law challenged abrogated a provision, inserted in a supplementary law, which would have been ruled through an ordinary law. In the case under analysis, there was not the direct or indirect establishment of a new social contribution that should have been ruled through a supplementary law (article 195.4 of the Constitution).

The Court decided, at last, by majority vote, that it is impossible to give prospective effects to this ruling, as it does not concern to a declaration of unconstitutionality. On the contrary, in this case it was reaffirmed the constitutionality of ordinary law that abrogated supplementary law. It was concluded that it is impossible to make an analogy with the declaration of unconstitutionality, because the Court, by doing so, would have to give prospective effects whenever the decision changes the jurisprudence of other Courts.

In separate opinions, concerning the merits, dissenting Justices argued that the supplementary law would not be abrogated by an ordinary law, as the former has a more complex procedure of approval in the National Congress than the latter. The supplementary law shall be approved with rounds of voting and needs an absolute majority in the Chamber of Deputies and in the Federal Senate. They alleged that the political-normative option of the legislator, when it chooses to rule a subject through a supplementary law, shall not be limited by the judicial interpretation.

In other separate opinions, about the analogy to give prospective effects to this decision, dissenting Justices stated that, though there was not a declaration of unconstitutionality of the law, the prospective effect would be necessary, because the Superior Court of Justice has precedents that were against this ruling. Accordingly, it would be necessary to determine a moment from which the jurisprudential change would come into force, in order to respect the fair expectancy of taxpayers and the principle of legal certainty.

 

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The deposit in advance is not a requirement to have the administrative appeal heard.

RE 388.359 - Official Gazette, 22.06.2007

It refers to an extraordinary appeal against decision that affirmed the exigency of the deposit in advance as a requirement to have the administrative appeal heard, provided in the article 33.2 of the Decree 70.235/1972. The appellant claimed that the principle of full defense was breached and, consequently, the clause of the due process of law was also breached.

The Brazilian Federal Supreme Court, by majority vote, granted the extraordinary appeal in order to declare the unconstitutionality of the provision challenged on the grounds that the plea is related to the right to petition and it shall be assured regardless of the payment of fees, otherwise the right of defense would be suppressed. It was stated that there is no fundament to charge a deposit in advance as the Federal Constitution does not demand the tax payment to exercise the right to file petition. The Court sustained that the State Ruled by the Law requires of the Public Administration the respect to the principle of legality and it configures a breach to this principle to condition the administrative appeal to the deposit in advance, once it turns the administrative proceedings impossible or unviable. The Court considered that restricting the access to the administrative jurisdiction of those who do not have financial resources breaches the principle of equality. This restriction, finally, violates the due process of law, because it bounds the exercise of the adversarial proceeding and of the full defense.

In dissenting opinion, it was argued that the requirement of deposit in advance is constitutional, because the administrative appeal is not a constitutional safeguard. Besides, the access to the jurisdiction in the Judiciary Branch does not require the exhaustion of the administrative jurisdictions.

The understanding stated in this decision, added to other precedents, led the Supreme Federal Court to issue the Binding Precedent With Mandatory Effect 21, which reads as follows: “The requirement of the deposit in advance either of cash or goods, in order to have the administrative appeal heard, is unconstitutional”.

 

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The Federal Justice has jurisdiction to judge the crime of one’s reduction to a condition similar to slave, since any action taken place in the context of labor relations and that violates the worker constitutes crime against labor´s organization.

RE 398.041 - Official Gazette, 19.12.2008

It refers to an extraordinary appeal filed against a ruling that decided that the State Ordinary Justice has jurisdiction to process and judge crimes of one’s reduction to a condition similar to a slave. The appellant argued that the maintenance of workers under escort, some trapped by currents, constitutes a crime against the labor´s organization and labor as whole, which justifies transferring the jurisdiction to the Federal Justice, on terms of article 109.6 of the Federal Constitution.

The Brazilian Federal  Supreme Court, by majority of votes, granted the request on the extraordinary appeal to determine that the Federal Justice has jurisdiction over the judgment of the lawsuit. The Court understood that although the crime of one´s reduction to a condition similar to a slave is not expressed written on the list of crimes against labor´s organization, it is due to the interpreter verify the existence of elements of the crime in the concrete situation. It was explained that the term “labor´s organization” (article 109.6 of the Constitution) refers not only to the structures and organs of labor, but also includes the human element, including aspects related to their freedom and dignity. Therefore, any action taken place in the context of labor relations and that violates the worker constitutes a crime against labor’s organization.

In concurring vote, it was stated that not every fact defined as crime of one´s reduction to a condition similar to slave implies, necessarily, violation to labor’s organization, as for example, when only one worker is seized as a slave. However, in this case, the crime was committed against labor as a whole, which justifies transferring the case to the Federal Justice jurisdiction.

In dissenting votes, it was argued that, in Criminal Law, the principle of previously defined crime prevails. As the crime of reduction of a person to a condition similar to slave is set forth among crimes against a person, the Ordinary Justice has jurisdiction to judge it. Lastly, it was stated that it’s possible to be charged for this crime regardless to the existence of labor relation.

 

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International treaties on human rights have supralegal hierarchy as they shall be below the Constitution, but above the internal ordinary law. The Pact of San Jose, Costa Rica, ratified by the Brazilian Government, forbids the civil arrest for the breach of a contractual obligation. Thus, the Brazilian constitutional provision on the civil arrest of the depositary that unjustifiably do not return the deposited thing to the depository is no longer applicable, as treaties abrogate the ordinary law about the matter.

RE 466.343 – (DOCUMENTO NÃO POSSUI)

It refers to an extraordinary appeal filed against decision that granted the request of a depository against a depositary grounded on a secured fiduciary sale, but denied the civil arrest of the depositary. The plaintiff argued that the Decree-Law 911/1969 set that the debtor of the secured fiduciary sale has the same penal and civil liabilities of the depositary that unjustifiably does not return the deposited thing. Thus, the challenged decision breached the provision of article 5.67 of the Federal Constitution, which expressly allows the civil arrest of the depositary that unjustifiably does not return the thing.

               The Brazilian Federal Supreme Court, unanimously, dismissed the extraordinary appeal. The Court stated that, as the deposit contract establishes the obligation to keep the thing and after return it, the secured fiduciary sale establishes the obligation to pay for the thing that was sold. Accordingly, the civil arrest, in the context of a secured fiduciary sale, is grounded on the debtors’ impossibility to pay what he/she owes, instead of being grounded on the impossibility to return the thing deposited.

               It was added that the Constitution forbids, as a rule, the civil arrest. The two exceptions – the one applicable to the debtor of an alimentary obligation and the one applicable to the depositary that unjustifiably does not return the deposited thing – are restrictions to the fundamental right to freedom; consequently, these exceptions shall have restrictive interpretation. Thus, the analogy or the extensive interpretation, in order to make the debtor of the secured fiduciary sale equal to the depositary that unjustifiably does not return the thing, is illegal.

               A concurring opinion remarked that the arrest of the depositary that unjustifiably does not return the thing breaches the proportionality principle in its three aspects – appropriateness, necessity and proportionality in the strict sense – because the creditor of a secured fiduciary sale can opt for an executive proceedings to secure his credit other than the civil arrest. It was also stated that the enforcement of the ordinary law about the depositary that unjustifiably does not return the thing was abrogated by the Pact of San Jose, Costa Rica. Brazil ratified this treaty on human rights in 1992 and it is set out, on article 7 of the Pact, the prohibition of civil arrest arising from any breach of contractual obligation, except the one arising from noncompliance with alimentary obligation. Thus, it was stated that international treaties that provide about human rights have a supralegal normative hierarchical status, which means that they are below the Constitution, but above the internal legislation.

               On the other hand, on other concurring opinion, it was argued that those treaties have constitutional hierarchy. That is due to article 5.2, which establishes that the rights and guarantees set forth in the constitution does not preclude others arising from treaties, therefore the article would be an "open-receiving clause." These rights would form the so-called “block of constitutionality”, since they are constitutional regardless of not being written in the Constitution. Accordingly, article 5.3, that sets forth a specific legislative quorum in order to assure the constitutional status to the treaties, would only be a formal requirement to determine the normative hierarchy that such treaties already have due to their unmistakable special character.

               For the defenders of the supralegal thesis, the determination of the constitutional status would entail serious legal uncertainty. First because it would have to be decided whether the treaty provides about human rights. If so, the treaty would expand the norms likely to suffer constitutional judicial review. Ultimately, the declaration of unconstitutionality of a treaty could bring serious repercussions from the standpoint of international law.

               Thus, the Court, by majority of vote, decided to assure supralegal hierarchy to treaties on human rights. Therefore, the constitutional provision that establishes the civil arrest of the depositary the unjustifiably refuses to return the thing deposited to the depositor no longer is applicable as treaties abrogate the ordinary law about the matter.

               The decision of this case, along with other previous decisions, led the Supreme Federal Court to issue the Binding Precedent with mandatory effect 25, which reads as follows: "It is unlawful to arrest the depositary that unjustifiably refuses to return the thing deposited to the depositor, whichever kind of deposit contract it may be”.

 

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The professional exercise of journalism does not require a diploma. Such requirement will only be necessary when the lack of technical expertise can cause harm to society. The journalism risks, however, can be corrected by subsequent civil and criminal liability. Moreover, this activity represents the exercise of freedom of expression and can not suffer any kind of previous censorship.

RE 511.961 - Official Gazette, 13.11.2009

This case refers to an extraordinary appeal filed against decision that held that the article 4.5 of Decree-Law 972/1969 was received by the Federal Constitution. The provision established the requirement of diploma for the exercise of journalism. The appellant argued that technical expertise can only be required when its lack can cause harm to society and the activity of journalism has no specificity that justifies the diploma requirement. Moreover, the appellant stated that the challenged provision was revoked by the article 13 of the American Convention on Human Rights.

The Brazilian  Feaderal Supreme Court, by majority, declared that the article 4.5 of Decree-Law 972/1969 was not received by the Federal Constitution. The article 5.13 of the Federal Constitution established the freedom of profession if provided the qualifications specified by law. However, these qualifications are not open clauses that allow legislators to impose limits on the exercise of such freedom. The restrictions must comply with the principle of proportionality and are only justified when the professional activity could cause harm to society due to the lack of a specific technical expertise of the profession. Although journalism involves risks, they do not derive from the lack of technical expertise, but from the abusive and unethical exercise of the profession. Thus, such excess should undergo subsequent civil and criminal liability.

Furthermore, the journalism is a peculiar activity as it represents the exercise of the freedom of expression. Accordingly, the systematic interpretation of the article 5.13, combined with the articles 5.4, 5.9, 5.14 and 220 of the Federal Constitution, indicates that laws regarding journalist qualifications should only prevail if they establish limits due to other constitutional rights or if they reinforce the freedom of expression. In this sense, the diploma requirement is a previous censorship. The Organization of American States, through the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights had the same interpretation of the article 13 of the American Convention on Human Rights, which was incorporated into Brazilian legislation. 

Lastly, the diploma requirement was established during the military regime, clearly intending to reduce the freedom of expression of intellectuals and artists opposed to the dictatorship.

In a separate opinion, a dissenting Justice argued that there was no formal unconstitutionality. The diploma requirement would not represent, nowadays, a limitation to the freedom of expression. Such requirement derived from a politic and normative option that aimed at providing more legal safety to what is published by the press. 

 

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The Federal Constitution establishes that taxes will be graduated, whenever it is possible, according to the ability to pay of the taxpayer, regardless to the nature of the tax (either real taxes - which are imposed on a good or asset - or personal taxes - which are imposed on the economic capacity of the taxpayer). Thus, the state act that structured the Tax on the Transfer of Assets due to Death and Donation as a progressive tax is constitutional, even though it is a real tax.

RE 562.045 - Official Gazette, 27.11.2013

This case refers to an extraordinary appeal filed by the State of Rio Grande do Sul against decision that deemed unconstitutional the article 18 of this State Law 8.821/1989, which structured the Tax on the Transfer of Assets due to Death and Donation (hereinafter ITCD) as a progressive tax, on the ground that only personal taxes (which are imposed on the economic capacity of the taxpayer) could be progressive. The appellant alleges that the article 145.§1 of the Federal Constitution does not forbid the progressiveness of the ITCD, even though it is a real tax (which is imposed on a good or asset). According to this article, “whenever it is possible, taxes should be individualized and should be graduated according to the economic capacity of the taxpayer”.

The Full Court of the Brazilian Federal Supreme Court, by majority vote, granted the extraordinary appeal to declare the constitutionality of the State law. The Court emphasized that the understanding according to which the progressive ITCD is unconstitutional was grounded on the doctrine that the article 145.§1 only establishes the progressive charging to personal taxes. However, the Court stated that such article should be interpreted in the meaning that taxes, whenever it is possible, shall have a personal character and, whenever it is possible, shall be graduated according to the economic capacity of the taxpayer. Thus, the article establishes how all taxes shall be, not only personal taxes.

Accordingly, all taxes can and must have relation to the ability to pay of the taxpayer. In the case of the ITCD, its levying could be progressive (higher rates for higher earnings) or regressive (smaller rates for higher earnings). The Court, thus, stated that the norm of article 145.§1º develops the principle of the substantive equality of taxation, according to which States must graduate taxes considering the economic capacity of the taxpayer. The Court emphasized that the Senate is responsible for the control of the limit of ITCD’s rates (article 155.1.IV), which prevents possible moves towards confiscation.

In a separate opinion, a dissenting Justice argued that the assessment of the ability to pay of the taxpayer based only on the goods, assets and rights transferred to the heir is impossible. The dissenting Justice claimed that the prohibition of progressive real taxes, established in the article 145.§1º of the Federal Constitution, is a constitutional safeguard and an individual right, which cannot be breached by an ordinary state law. Thus, in the case of real taxes, the progression of taxation could only be established by express constitutional provision.

In another separate opinion, a dissenting Justice argued that the type of tax (personal or real) is not a hindrance to the progression, but that not all taxes could be progressive, as it is impossible to assess the ability to pay of the taxpayer. In the case of the ITCD, heirs in absolute diverse economic conditions could be forced to pay the same value of tax, which is against the ability-to-pay principle.

 

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The article 20.§3 of Law 8.742/1993, which establishes the monthly income per person below one fourth of the minimum wage as a condition to grant the monthly benefit for disabled or elderly people (set forth under article 203.V of the Constitution) has an unconstitutional omission, though it is not null. This provision gradually became unconstitutional, due to factual changes (politic, economic and social) and legal changes (issuance of statutes that raised the economic threshold for eligibility to other social security benefits).

RE 567.985 - Official Gazette, 3.10.2013

This case refers to an extraordinary appeal filed against decision of an Appeals Panel of a Small Claims Court that ordered the granting of the monthly benefit, set forth in the article 203.V of the Constitution (assurance of a monthly benefit of one minimum wage for disabled or elderly people who prove the incapability of providing for their own support or having it provided for by their relatives) to a person who was not eligible according to the threshold established in the article 20.§3 of Law 8.742/1993 (the family who has a monthly income per person below one fourth of the minimum wage is not capable of providing for the support of a disabled or elderly person). The Appeals Panel had explained that, according to precedents, such threshold is not absolute in order to identify the poverty condition. The appellant alleged that the threshold of Law 8.742/1993 should have been applied, as the constitutional provision of the monthly benefit should have been specified by a non-constitutional norm that could restrict the constitutional provision.

The Brazilian Federal Supreme Court, by majority vote, denied the extraordinary appeal and declared the unconstitutional omission of the article 20.§3 of Law 8.742/1993, without stating it null. Despite this, the Court did not reach the quorum to give prospective effects to the decision, establishing a lapse during which the norm would not be considered unconstitutional, in order to allow the issuance by the Legislative Branch of a new rule more adequate to accomplish the constitutional provision of the article 203.V of the Constitution.

The Court explained that, in a direct claim of unconstitutionality previously judged, it had considered the article 20.§3 of Law 8.742/1993 constitutional. However, due to factual changes (politic, economic and social) and legal changes (issuance of statutes that raised the economic threshold for eligibility to other social security benefits), this provision gradually became unconstitutional.

The Court stated that the enforcement of the threshold set forth by Law 8.742/1993 should have, as substantive parameters, the principle of the human dignity, from which derive the principle of the social solidarity (article 3.1 of the Constitution) and the assurance of the social minimum, besides the rule that establishes the assistance to destitute (article 6 of the Constitution).

The Court concluded that, though the threshold established in the statute was objective, it was not enough to implement the constitutional provision in specific cases. The Court highlighted that the government must issue statutes and take action to effectively safeguard the fundamental rights, according to the principle that forbids the insufficient implementation. The Court explained that it could strike a balance between the rule set forth by the statute (which, as a rule, implements the principles of the legal certainty and the isonomy) and the principle of the human dignity, which should prevail over.

In a separate opinion, a dissenting Justice, who disagreed only about the declaration of unconstitutionality, argued that the norm could not be applied to some cases, as the one under judgment, but it was not abstractly unconstitutional. He stated that, in cases of unconstitutional omission, the Court does not declare the unconstitutionality, as it could aggravate the situation that already is unconstitutional, because the nullification of the rule would remove the fundament to the government action.

In other separate opinions, dissenting Justices on the merits granted the appeal, on the grounds that the rule was already deemed constitutional by the Court. They stated that the Legislative Branch should act to establish the threshold to prove the poverty, notably due to budget limitations.

 

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The state courts have jurisdiction over cases between telephone public-utility companies and citizens, unless the National Telecommunications Agency (ANATEL, in the Portuguese acronym) is either the plaintiff, defendant or a third party of the case, what would render the jurisdiction to the federal courts.

RE 571.572 - Official Gazette, 13.02.2009

 

This case refers to an extraordinary appeal filed against decision that held that it is not possible to charge for calls that exceeds the duration of time call disposed in the contract, unless the company details all calls made in the telephone account. 

               The appellant claimed that the Small Claim Court, which is a lower court where the case was filed before, had no jurisdiction over that matter, since the case required complex expert evidence. That would violate the article 98.1 of the Federal Constitution which sets forth that the Small Claim Court has jurisdiction over civil law cases of lower complexity and crimes of lower offensive potential. The appellant also alleged that the National Telecommunications Agency (ANATEL, in the Portuguese acronym) has the competence to regulate the charging for the calls that exceeds the duration of call time disposed in the contract and since it is a Federal Government organ, the case should be heard by the federal courts.

               The Brazilian Federal  Supreme Court, unanimously, decided to partially hear the extraordinary appeal and, on that part, also unanimously, the Court denied the appeal due to the case subject, that was found nonconstitutional, and because the Superior Justice Court already had a biding precedent (biding precedent 357) that states that is mandatory to indicate all exceeding calls.

               Thus, the Supreme Court discussed which court had jurisdiction over the subject case: the federal courts or courts of general jurisdiction and, if it was the courts’ of general jurisdiction, if the Small Claims Court had the competence to hear the case. The Court held that, in the concrete case, ANATEL was not an indispensable defendant as the legal relationship involved only the public utility company and the citizen, and also because there was no legal rule determining so. The state courts have jurisdiction to hear such cases, unless ANATEL demonstrates interest to figure as a third party.  

               The understanding embodied in this decision, along with other precedents, led the Supreme Court to issue the mandatory precedent with biding effect 27, that states as follows: “The state courts have jurisdiction over cases between the consumer and the telephone public utility company, unless ANATEL is an indispensable defendant or figures in the case as a third party”.

 

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The prisoner’s own income, not the income of his/her dependents, should be taken in consideration to assess the reclusion financial support.

RE 587.365 - Official Gazette, 08.05.2009

It refers to an extraordinary appeal filed against decision that held that, for purposes of reclusion financial support (social security benefits for the dependents of the prisoner of low socioeconomic status), it has to be considered the gross monthly income of the dependents and not of the insured prisoner.

The Brazilian Federal Supreme Court, by majority vote, granted the request on the extraordinary appeal because it considered that the “low income” requirement prescribed in the Federal Constitution (Article 201.4) refers to the prisoner's own income and not to his/her dependents. It was stated that the opposite interpretation could lead to undesirable distortions, because it would be possible to benefit dependents of the prisoner who do not have low income. Moreover, the selection criterion based on the income of dependents could include in the count children under 14 that could not even work. The result of this calculation would decrease the value of monthly gross income and could benefit dependents who do not have low income. It was further stated that the value used as the parameter of low income (R$ 710,08) is significantly higher than the value of the minimum wage at the time (R$ 465,00), which represents a great inconsistency. It was decided, finally, that the reclusion financial support represents a social security benefit based on the criterion contributive/retributive rather than a social assistance that is provided to those in need regardless of contribution.

In a dissenting opinion, it was held that the Constitution refers to dependents of the insured who have low income, because otherwise it would be able to grant support for dependents who do not need it, bringing unnecessary expense to the state. It was argued that the financial support may not be paid to the insured low-income, because the prisoner, by law, can not have income or receive benefits. Is was stated, finally, that the need of the dependents must be analyzed because they may be in need regardless of the amount received by the insured, as the recipient of the benefit is the one who really needs it.

 

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Courts may issue remedial orders to the State such as the execution of emergency constructions in prison facilities in order to enforce the dignity of human person precept and ensure the respect to prisoners’ physical and moral integrity, under Article 5.XLIX of the Federal Constitution. The order shall not be objected under the limited resources principle or the separation of Powers.

RE 592.581 - Official Gazette, 1.2.2016

This case refers to an extraordinary appeal which presents the question whether the Judiciary may order the State to implement constructions in prisons facilities aiming to fulfill the constitutional right that ensures prisoners the right to physical and moral integrity (Article 5.XLIX of the Federal Constitution).

In the first instance, the Prosecutor´s Office obtained a positive decision in a public civil action filed in order to determine the execution of construction works, within six months, by the State of Rio Grande do Sul  in the Uruguaiana State Prison (Albergue Estadual de Uruguaiana). However, the second instance overruled the decision on the grounds that the prisoners´ right consists of a constitutional programmatic rule, which implies a general orientation to the State, and, therefore, this subject falls within the State discretion. However, the Court acknowledged that the prison´s conditions were indeed degrading. The Prosecutors’ Office appealed against this decision.

The Brazilian  Federal Supreme Court, unanimously and according to the Rapporteur opinion, granted the appeal to affirm the first instance decision. The Court, also unanimously, settled the following legal thesis: “Courts may issue remedial orders to the State such as the execution of emergency constructions in prison facilities, to enforce the dignity of human person precept and ensure the respect to the prisoners’ physical and moral integrity, under Article 5.XLIX of the Federal Constitution. The order shall not be objected under the limited resources principle or the separation of Powers”.

Initially, the Court reported official data of agencies that promote inspections in prisons throughout the country, providing a picture of the current poor prison conditions, especially the overcrowding and appalling building facilities (electrical and hydraulic). The Court emphasized that such situation hinders the fulfillment of the sentence’s purposes, considering that, in the rule of law, more than a consequence of the offense, the penalty aims at rehabilitating someone into society. In addition, the current situation of the Brazilian prison system violates the principle of human dignity, whose central value in the Constitution allows the Judiciary to intervene in order to ensure its minimum content.

The Court emphasized that prisoners´ physical and moral integrity is a fundamental right of immediate applicability (not a public policy). Furthermore, the Brazilian legal system has a set of local and international rules that ensures several rights to prisoners. Accordingly, the principle of jurisdiction consideration – which states that injuries or threats to rights must be brought to Judiciary appreciation – imposes the intervention of Courts in order to restore the fundamental right violated.

The Court described the entire legal apparatus as an advantage to the Brazilian judiciary branch from the perspective of comparative law. In the United States, the prison system reform was formed by the Supreme Court based on the Eighth Amendment. As there was no standardization in this area (architecture definitions for the prisons, as adequate space, minimum power of light, etc.), judicial decisions formed a new doctrine to replace the policy of "hands off".

Finally, the Court recorded that the official data of the Department of Justice demonstrate budget availability, at the federal level, in the main fund for modernization and improvement of Brazilian prisons, which reveals a serious omission from the authorities responsible for the prison system.

 

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Competitors who have been approved in a competitive civil service examination within the number of offered positions have the subjective right to take office before the examination expires.

RE 598.099 - Official Gazette, 03.10.2011

This case refers to an extraordinary appeal filed against decision that acknowledged the subjective right to take office after approbation within the number of offered positions in a competitive civil service examination. The appellant argued that the challenged decision breached the principle of efficiency, established under article 37 of the Constitution.

The Brazilian  Federal Supreme Court, unanimously, denied the appeal. The Court stated that when the government sets a competitive civil service examination, it creates the obligation to provide position to those who have been approved within the number of offered positions, before the examination expires. This is a consequence of the enforcement of the principles of legal certainty, bona fide and protection of confidence against the government, as it has to comply with the rules of the competitive civil service examination in the same extent that the competitors. This does not breach the principle of efficiency, because the government must set a competitive civil service examination in a responsible way, foreseeing exactly which positions are needed and if there will be financial resources to pay for them.

The Court acknowledged that, in some exceptional cases, the government could not provide office for those who had been approved within the number of positions. But such cases must be incidental, unpredictable and serious – amid economic crisis, for instance – so that the only alternative would be not providing positions. Accordingly, the Court stated that this decision establishes a limit to the action of the government, which is bound by the principle of the competitive civil service exam.

 

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The civil servant, who took office due to a judicial decision, is not entitled to damages, on the argument that they should have taken office in a previous moment, except for situations of evident arbitrariness.

RE 724.347 - Official Gazette, 13.5.2015

This case refers to an extraordinary appeal filed by the Federal Government against decision that awarded damages to candidates for the job of fiscal auditor. The candidates took office at a late time, due to an illegitimate act of the government. Specifically, the candidates passed the first phase of the civil service exam, but were ranked out of the number of vacancies established in the exam announcement. Later, new vacancies for the job were opened and the government opted to conduct a new civil service exam, instead of calling the candidates of the previous exam. These candidates sued the government and were favored by a judicial decision that ordered their submission to the second and last phase of the exam. Eventually, they passed the exam and sued the government again to recover damages. They claim that the damages be equivalent to the wage for the job, from the date when they were passed over in favor of other candidates until the date when they were effectively nominated.

The Brazilian Federal Supreme Court, by majority vote, granted the extraordinary appeal. Furthermore, the Court stated, with general repercussion, the thesis that the civil servant, who took office due to a judicial decision, is not entitled to damages, on the argument that they should have taken office in a previous moment, except for situations of evident arbitrariness.

The Court understood, as a general rule, that the damages mean enrichment without cause, because the work was not in fact performed. Only the nomination for the job, the entry into office and the actual performance of the duties cause the right to be paid wages. The Court emphasized that passing the civil service exam is a requirement to be nominated for the job. However, only passing the civil service exam does not cause, automatically, the right to be paid wages. In the case under judgment, the Court also highlighted that the previous judicial decision did not safeguard the nomination for the job and the entry into office. That decision only safeguarded the candidates’ right to perform the second phase of the exam.

In a separate opinion, a concurring Justice remarked that the main question of this case was to decide when the nomination ceases to be a government option and becomes a subjective right of the candidate. The Justice underscored the constitutional guarantee of the ranking in civil service exams (article 37.IV of the Constitution). Hence, in order to decide such cases, it is necessary to assess if the judicialization of the right to be nominated results in damages, due to the time elapsed and the noncompliance with article 37.IV. Accordingly, the Justice found that the State can be held responsible only when the candidate passes all phases of the exam. Passing the exam is a requirement to apply the aforementioned article.

The Court excluded from the holding in this judgment the cases of evident arbitrariness of the government, as, for example, the groundless veto to a candidate who passed the exam. In exceptional cases, when institutions are manipulated, adequate damages can be granted.

In separate opinions, dissenting Justices considered that the Constitution establishes the State objective responsibility for the damage incurred (article 37.§6, of the Federal Constitution). Therefore, damages should be awarded, if the causation between the damage and the government act is proved. Furthermore, the government act which was deemed illegitimate has “ex tunc” effects. Lastly, the dissenting Justices denied the enrichment without cause, because the amount of damages was an indemnity (not a payment for a service). The amount of damages should be calculated based on the wage that the candidates would have received in case they had worked, if the government had not acted illegally. This amount should be reduced by any payments received by the candidates due to the performance of other government jobs.

 

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