The Brazilian Federal Constitution, promulgated in October 05, 1988, is the main juridical document in our country. It is the basis of validity of all other Brazilian rules and, because of this, all these rules must be in accordance with the constitution; their validity and legitimacy derive from the constitution. The 1988 Constitution established a Social Democratic State of Law, which has the following principles: national sovereignty, dignity of the human person, social values of work and of free initiative, political pluralism, republic and federal system. It established, in addition, that the every power comes from the people, who exercise it directly or by dint of their elected representatives.
Dubbed of "Citizens' Constitution" by the president of the National Constitutional Assembly, Ulysses Guimaraes, this chart of 1988 has valorized human dignity and promoted an advance in the concept of citizenship, starting a new era in the Brazilian juridical scenario, oriented to the protection of fundamental rights and democratic values.
The idea of a Constitution, understood as a juridical rule, became stronger after the 1988 Constitution, because, before it, the Civil Code had more importance than it and the institutional acts had more weight than the Constitution, because they are based in a supposed revolutionary power. In the current system, the constitutional rule has an impact on the whole system, because the 1988 Constitution is a qualified juridical rule, with a supreme and imperative character.
The Brazilian Constitution of 1988 is, in essence, an organizational juridical rule, which provides the fundament of the Brazilian State, because it establishes the organization and the jurisdiction of all bodies that compose the State and it is the fundament of the unity and validity of the entire judicial system, which emerges from it and which it must be in harmony. This is the reason why, for a jurist, the Constitution starts the State.
The constitutional text has established a functional separation of the essential powers of the State of Law, assuring independence and harmony between these Powers by means of a check and balance system. It has also determined an Undivided Jurisdiction, as long as it confers to the Judiciary the monopoly of the jurisdiction.The Constitution deals with civil, political and social rights and has created mechanisms to make them accessible to citizens, assuring several guarantees in order to provide a greater efficiency to the applicability of the fundamental rights. Above all, it has determined that "any lesion or menace to rights cannot be excluded of the Judiciary verification".
In this sense, there is a set of rules that provide effectiveness so that the fundamental rights and guarantees, established in the Constitution, are observed:
- Access to court system (article 5, XXXV);
- Adversary proceeding (article 5, LV);
- Natural judge and prosecutor (art. 5, XXXVII and LIII);
- Independency of the jurisdictional activity (article 2);
- Illicitly obtained evidence is inadmissible (article 5, LVI);
- The need of fundament in the juridical decisions (article 93, IX);
- Publicity of juridical acts (article 5, LX).
The 1988 Constitution established some general principles to orient the functioning of the Judiciary: Inertness of jurisdiction; Due process of law; In general, juridical effects are inter partes, among the parties. It has also established the following guarantees: Financial and administrative autonomy; Organization of its auxiliary activities; Elaboration of its internal regime; Election to the directive bodies and to the Court of Justice presidency.
As we can see, in Brazil, the constitutional guarantee that provides access to the court system is the main fundament of the applicability of the fundamental rights, and has in the State its principal actor, which is the recipient of this rule. The State has the power of guaranteeing the individuals' rights, reverting eventual violations. The right to file a suit derives from the understanding that every person needs to receive an effective protection from judges and tribunals. The access to court system is essential to a juridical protection of the rights provided by the Constitution.
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In Brazil, the Court System is divided into Federal Courts and State Courts. Because of special jurisdictions, there are also Courts that deal with common and specialized matters. The later deals with military, electoral and labor subjects. In this context, the Brazilian court system comprehends the following courts: Supreme Federal Court, Superior Court of Justice, Regional Federal Courts, States Courts and judges, and Labor, Electoral and Military Courts.
The Supreme Federal Court, known as STF, is the principal body of the Brazilian court system and is the guardian of the Constitution. Its main function is to zeal for its accomplishment and to establish the final opinion about constitutional rules. It is composed by 11 justices, who are appointed by the President of the Republic and confirmed in their charges by the Federal Senate. It has jurisdiction to try the President, the Vice-President, the members of Parliament, its own Justices, and the federal prosecutor of the Republic in common crimes.
Above the Supreme Federal Court, there is the Superior Court of Justice, kwon as STJ, which is responsible for providing an uniform interpretation of the federal legislation and for trying relevant criminal cases, which involve governors, associate justices and judges of the regional federal, electoral and labor courts, amongst other authorities. It is composed by 33 justices, appointed by the President of the Republic from a list of three names, elaborated by the Superior Court of Justice itself. The STF and STJ have the control of the Common Federal and State Court, there being the possibility of appeal to the STF, in case of constitutional matters and in case , and to the STJ, in case of federal legislation matters.
The constitutional amendment 45 created, in 2004, the National Council of Justice, which is an administrative body. The NCJ is responsible for setting the guidelines of the Judiciary Power in Brazil, exercising an financial and administrative control of this Power and of the functional duties of judges. It has 15 members, which are appointed by the President of Republic for a mandate of 2 years, being possible one renomination.
To sum up, the common federal courts have jurisdiction to try cases in which the Federal Government, governmental agencies or federal public corporations are involved as plaintiffs, defendants, assistants or opponents, except in case of bankruptcy, employment related to accident and those subjected to Electoral, Military and Labor Courts.
Labor courts try individual and collective conflicts between employers and employees. They are composed by labor judges and have a level of appeal, organized in Labor Regional Courts. There is also a Superior Labor Court with seat in Brasilia.
With the objective of guarantee the right to secret vote, provided by the Constitution, the Electoral Justice sets electoral proceedings. It is responsible for organizing, monitoring and checking elections and for confirming the elected candidates in charge. It can also establish the loss of mandate and try unlawful actions in the elections. It is composed by ministers that work in the Superior Electoral Court and by electoral judges, who work in the first level and in the regional electoral tribunals.
Military courts have jurisdiction to try military crimes and it is composed by military judges who work in the first level and in the level of appeal. There is also a Superior Military Tribunal, composed by ministers with seat in Brasilia.
The State Court has jurisdiction to try any case that it is not subjected to the Federal Court System and to the specialized courts. It is composed by judges and associate judges. The Constitution establishes that it is up to each State to organize its tribunals. State court system comprehends a small civil claims court and a petty offenses court. The State court system is also responsible for some extrajudicial functions, such as notarial services, civil registers, judicial protests and register of deeds. The biggest State Court in Brazil and one of the biggest in the world is the State Court of Sao Paulo, which has 2400 (two thousand and four hundred) judges and more than fourty three thousands civil servants. The main direction bodies of the State Court of Sao Paulo are the Superior Council of the Magistracy and the Special Body. The latter is composed by twenty five associate judges: the president of the court, twelve elected members and the twelve oldest associate judges.
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It is important to remember that the Brazilian Court System has the following bodies: Public Prosecution Office, responsible for the defense of the legal order, the democratic regime, social and individual inalienable interests. Public Advocacy, composed by the General Union Advocacy, which represents the Union and assists the Executive Power and the State and Federal District General Attorneys. It also provides legal consultancy to federal entities. Lawyers, who are indispensable to the court system. Public lawyers, which helps those citizens who cannot afford for a private lawyer.
The Brazilian judge begins in the legal career by a civil servant examination. This career is one of the careers to require such an examination in order to admit new professionals. In order to assure that a judge develops his work freely, without duress or fear, the Federal Constitution has established the following guarantees: Life-time tenure of their charge; Irremovability; Maintenance of their salaries;
It is essential that a judge has good formation so that he can take wise decisions in the court. Because of this it is important to provide him a continual training. Responsible for the selection, preparation and improvement of its staff, the Judiciary Power invests in the continual training of its judges, due to the Constitutional Amendment 45.
In the State of Sao Paulo, the continual legal training of Judges and other civil servants of the Judiciary is provided by the Sao Paulo School of Judges, which is a body dependent on the Court of Sao Paulo. In fact, it is its academic branch. Created in 1988, the Sao Paulo School Judges develops also other activities, in addition to mentioned legal training, such as open courses to law professionals, which comprehends mater degrees, extension courses, fast courses, seminars, conferences, amongst others.
These course have a multidisciplinary program relating to subjects such as health, environment, drugs policy, management, conciliation and mediation, land regularizations, Islamic Law, philosophy, insurance, among others that are not legal subjects. The Sao Paulo School of Judges have as students not only judges, but also prosecutors, lawyers, physicians, psychologists, police commissioners, militaries, amongst other professionals.
In 2012, almost (20.000) twenty thousand students attended the courses and activities of the School and, in 2013, more than thirty five thousands vacancies have become available in more than (110) one hundred ten courses and events that have been scheduled for the first semester. We are forecasting to enroll more than forty five thousands students this year. This work is not restricted to the State of Sao Paulo, because the Sao Paulo School of Judges has agreements with other legal schools and government institutions, in such way that we promote courses and other events along with our partners, spreading our knowledge throughout the Country.
Bearing the thought of mustering knowledge and experience with everybody in mind, the Sao Paulo School of Judges is now achieving a new level of exchange as it is developing international contacts in order to establish cooperation agreements with several international institutions. Until the end of 2013, our School will have more than thirty four international conventions. This overture is allowing the School to receive events that counts with the presence of judges, legal experts and others renowned professionals from around the world, giving opportunity to several debates of international interest.
In the same way, the Sao Paulo School of Judges has been marking its presence in several international conferences. We have attended events in the US, especially in the World Bank; in several European Countries, such as Russia, Romania, Hungary, Croatia, Germany and Portugal; we have been in Turkey, Argentina and Dominican Republic. We will take part in legal events in the Arabs Countries and India soon. Our schedule is busy until two thousand and fifty! All these activities make our School to be not only a center of excellency of the legal teaching, but also a think tank and a channel between judges and citizens. In such way, we contribute to the improvement of the court system and to the democratization of the culture, as we have a permanent dialogue with society.
In this context, I would like to stress that the Sao Paulo School of Judges is available to collaborate with everybody, in several fields of knowledge and areas of actuation, and to muster efforts with several partners in order to promote the improvement of the legal system. In such way, we hope to contribute to a better culture, a better welfare and a more peaceful world. ■
Lábjegyzetek:
[1] The Author is a Director of Sao Paulo School of Judges.
Visszaugrás
