Português
RELEVANT JURISPRUDENCE
ADIn 3.682
Date: Diário da Justiça (Justice Gazette) 06.09.2007
Keywords: Constitutional provision, regulation of / Legislative omission as a violation of the constitution / inertia deliberandi of the Legislative.
Headnotes: The omission of federal lawmakers in regulating the constitutional provision through a required complementary law may constitute a violation of constitutional order.
Establishment of a reasonable temporal parameter for the enactment of constitutionally-mandated legislation by the Legislative Branch.
ADIn 2.240
Date: Diário da Justiça (Justice Gazette) 03.08.2007
Keywords: Legislative bodies, omission of/ Principle of legal security / Unconstitutionality of law and a de facto situation.
Headnotes: The unconstitutionality of a State law in violation of a constitutional provision and well-established case law must also be considered in light of the exceptionality arising from a de facto situation and from the omission of federal lawmakers in regulating the constitutional provision through a required complementary law. The decision of the Federal Supreme Court must take into account the normative force of facts and strike a balance between the nullity of the unconstitutional law and the safeguard of the principle of legal security. Thus, the law can be declared unconstitutional without being annulled for a certain period of time, until state lawmakers adjust the legislation to constitutional requirements, as regulated in the complementary law to be enacted at the federal level.
ADIn 1.351
Date: Diário da Justiça (Justice Gazette) 30.03.2007
Keywords: Political parties, law of / Political parties, performance clause / Political parties, congressional representation / Political parties, access to public funding for campaign / Level playing field (“Chancengleichheit”), principle of / Unconstitutional law, temporary correction of.
Headnotes: The unconstitutionality of performance clauses that require political parties to obtain a certain percent of the vote as a precondition for them to operate in Congress, enjoy access to publicly funded political propaganda on TV and radio, or use public resources from the Parties’ Fund. Such performance clauses violate the constitutional principles of proportionality and of a level playing field (“Chancengleichheit”) for political parties. Federal Supreme Court-mandated temporary correction of an unconstitutional clause of legislation until lawmakers address such unconstitutionality.
ADPF 33
Date: Diário da Justiça(Justice Gazette) 27.10.2006
Keywords: Reception of law by the Constitution / Minimum wage, wage indexation to / Federative principle, violation of / Subsidiarity clause /.
Headnotes: The reception of previous, state level law deemed to be in violation of a subsequent Constitution can be the object of a Claim of Non-compliance with a Fundamental (constitutional) Precept. Taking into account the subsidiarity clause, the Claim must be interpreted in the context of the overall constitutional order.
RE 201.819
Date: Diário da Justiça (Justice Gazette)27.10.2006
Keywords: Fundamental Rights and private autonomy / Due-Process in private associations / Right of defense in private associations.
Headnotes: Fundamental rights guaranteed by the Constitution bind not only public powers, but are also directed to the protection of private citizens in face of private powers. Violations of fundamental rights do not occur only within the realm of relations between citizen and State, but also in the relations between natural persons and legal private persons. The sphere for private autonomy granted to private associations is limited by the observance of the principles and fundamental rights enshrined in the Constitution.
MS 24.831
Date: Diário da Justiça (Justice Gazette) 04.08.2006
Keywords: Constitutional review of legislative acts, possibility of / Inobservance of rights and guarantees of a constitutional nature / Special parliamentary committees / Parliamentary investigating committee.
Headnotes: The Judicial Branch, when intervening to guarantee constitutional franchises and to assure the integrity and supremacy of the Constitution, legitimately fulfills the duties granted to it by the Constitution, even if its institutional action projects itself in the organic domain of the Legislative Branch.
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ADIn 2.514
Date: Diário da Justiça (Justice Gazette) 09.12.2005
Keywords: Cultural manifestations, protection of / Cultural rights / Cockfighting / Animals, cruel treatment of / Fauna, protection of.
Headnotes: The subjection of animal life to cruel practices, such as cockfighting, is not compatible with the Constitution, as established in previous decisions of the Federal Supreme Court.
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ADIn 1.570
Date: Diário da Justiça (Justice Gazette) 22.10.2004
Keywords: Privacy protection of financial data / Privacy protection of fiscal data / Implicit repeal / Judge, impartiality of the / Evidence gathering / “Instructing” judge.
Headnotes: In cases of criminal prosecution where there is a possibility of violation of privacy or confidentiality rights, concerning fiscal, banking, financial or electoral information, investigation and evidence gathering carried out by judges violates the principles of the impartiality of the judge and of the publicity of proceedings, as enshrined in the Constitution. Allowing the judge to personally engage in the collection of evidence that may later serve as the foundation of his own ruling would jeopardize the judge’s impartiality and therefore due process in the criminal justice system.
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ADIn 869
Date: Diário da Justiça (Justice Gazette) 04.06.2004
Keywords: Freedom of the press / Freedom of thought / Freedom of information / Right to privacy of accused minors / Children and adolescents, rights of / Censorship.
Headnotes: A constitutional framework that grants that freedom of thought, creation and expression will not suffer any restriction and explicitly forbids any law to create obstacles to the freedom of the press, as long as individual rights are observed, will not tolerate the establishment of penalties for media which disclose, without authorization, data about a minor accused of breaking the law.
Penalties such as the suspension of the circulation of newspapers or of radio and TV broadcast would amount to a violation of the freedom of the press, as they would hinder the freedom of the public to be informed.
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RE 197.917
Date: Diário da Justiça (Justice Gazette) 07.05.2004
Keywords: Proportionality of representation / declaration of unconstitutionality / pro futuro effetcs
Headnotes: In declaring the unconstitutionality of a law, the concrete situation may have to be respected, for the sake of judicial security. The declaration of annulment of the law, with its effects ex tunc, would result in a serious threat to all the legislative system. Taking into account the public interest, pro futuro effects were exceptionally granted to the incidental declaration of unconstitutionality.
HC 82.424
Date: Diário da Justiça (Justice Gazette) 19.03.2004
Keywords: Writ of habeas corpus / Racism / Anti-Semitism / Books, publication / Freedom of Speech, limits.
Headnotes: To achieve a juridico-constitutional definition of the term “racism”, it is necessary to combine the historical, political and social factors and circumstances that governed its formation and application.
The crime of racism constitutes an assault against the principles upon which human society is built and organized, such as the respectability and dignity of the human being and his peaceful coexistence.
HC 81.288
Date: Diário da Justiça (Justice Gazette) 24.04.2003
Keywords: Heinous crimes / Rape and violent sexual abuse / Proportionality principle / Legal exegesis/ Linguistic analysis.
Headnotes: In order for rape and violent sexual abuse to be considered heinous crimes it is not necessary that they result in severe bodily injury or death. In the Brazilian legal system, qualifying a crime as “heinous” entails more severe penalties and bars the granting of pardon and the reduction of sentence of a felon convicted for such crimes.
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ADIn 1.086
Date: Diário da Justiça (Justice Gazette) 10.08.2001
Keywords: Environmental impact assessment, waiver of / Forestation and reforestation projects / Environmental protection / Regulatory power of States / State Constitution v. Federal Constitution.
Headnotes: According to the systematic logic of the distribution of legislative power, only federal law can introduce a waiver to a general precept established in the Federal Constitution. Therefore, issues which fall under the category of general rules of environmental conservation, such as a constitutional requirement for an environmental impact assessment, cannot be subject to exceptions established at the level of State constitutions.
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Ext 700
Date: Diário da Justiça (Justice Gazette) 05.11.1999
Keywords: Extradition, guarantees / Political crime, concept of / External security of the State.
Headnotes: The concept of political crime is based on the identification of the legal object that is damaged by it. A crime against the external security of a State constitutes a political crime and thus falls into the ban established by the Article 5.LII of the Constitution, according to which the extradition of a foreigner shall not be granted on the basis of a political or ideological crime.
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ADIn 1.724
Date: Diário da Justiça (Justice Gazette) 22.10.1999
Keywords: Destatization / Privatization / Proportionality, principle of / Oversight powers / Preliminary injunction.
Headnotes: The principle of proportionality is not violated when a State Law grants ample powers to the Governor of the State to implement a destatization program, provided that the statute establishes transparent procedures subject to judicial review and to other oversight mechanisms enshrined in the Federal Constitution.
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ADIn 1.926
Date: Diário da Justiça (Justice Gazette) 10.09.1999
Keywords: Ad valorem judicial costs and fees, constitutionality of / Judicial costs and fees, ceiling for / Full access to the courts / Judicial fees and taxes.
Headnotes: Although courts may charge ad valorem fees and costs, the charging of excessive rates and the inexistence of a ceiling for the fees can infringe the constitutional guarantee of full access to the courts if they make those fees disproportionately more costly than the service they were supposed to pay for.
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RE 153.531
Date: Diário da Justiça (Justice Gazette) 13.03.1998
Keywords: Cultural manifestations, protection of / Cultural heritage, protection of / Cultural rights / Animals, cruel treatment of / Appeals, legal and factual matter / Tridimensional Theory of Law.
Headnotes: The constitutional duty of the State to grant to all citizens the full exercise of cultural rights, by promoting the appreciation and diffusion of cultural manifestations, does not exempt the State from observing the Constitutional provision which bars the practice of cruelty to animals.
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ADIn 815
Date: Diário da Justiça (Justice Gazette) 10.05.1996
Keywords: Originary constitutional power / Immutable clauses / Constitutionality of constitutional norms / Supreme Court, guardian of the Constitution.
Headnotes: Establishing a hierarchy among originary constitutional norms is not compatible with a rigid constitutional system. The foundation of the validity of all originary constitutional norms lies in the originary constitutional power – not in other constitutional norms.
ADIn 2-1
Date: Diário da Justiça (Justice Gazette) 21.11.1997
Keywords: New constitution and prior law / Prior law, simple repeal / Prior law, subsequent unconstitutionality.
Headnotes: With the adoption of a new Constitution, prior law is either consistent with it and will remain in force, or inconsistent with it and will be repealed by it. When drafting legislation, lawmakers observe the limits imposed by the Constitution in force, as it is obviously impossible to obey the terms and precepts of a future, still non-existent Constitution.
HC 74.983
Date: Diário da Justiça (Justice Gazette) 29.08.1997
Keywords: Minors, sexual crime against / Rape of minors / Consent of minors / Violence, presumption of / Subjective penal responsibility.
Headnotes: The presumption of violence in a rape crime against a minor does not violate the constitutional principle of subjective penal responsibility, as a minor is not capable of offering consent for such action.
The allegation of lack of just cause for a condemnation requires a thorough examination of every single piece of evidence, which is not admitted in a writ of habeas corpus according to the jurisprudence of the Federal Supreme Court.
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