The Rule of the Courts

The Role of Courts in Guaranteeing Fundamental Rights

review carried out by the STF, decisions rendered under diffuse review have inter partes effects, though they may ultimately reach the STF through appeal. In short, the Brazilian constitutional framework has conferred significant protagonism upon the courts in the defense of fundamental rights. Throughout the process of democratic consolidation and the implementation of the constitutional provisions established by the 1988 Constitution, the Brazilian Judiciary issued numerous decisions that contributed to the creation, expansion, or consolidation of fundamental rights. Frequently, due to legislative inertia in addressing complex issues, the Judiciary defined rights through constitutional interpretation, even in the absence of specific implementing legislation. This context includes a series of important and controversial judicial decisions – particularly by the STF – which nonetheless underscore the Judiciary’s central role in the protection of fundamental rights in Brazil. Among many possible examples, the following decisions stand out: 1. The STF classified homophobia and transphobia as crimes equivalent to racism, holding that Congress had committed an unconstitutional omission by failing to enact legislation criminalizing such conduct. 2 2. The recognition of the right to terminate pregnancy in cases involving anencephalic fetuses. 3 3. The STF ruled that the Public Prosecutor’s Office may initiate criminal proceedings in domestic violence cases without the victim’s formal representation, thereby protecting women living under conditions of coercion and vulnerability. 4 4. The STF established that the so-called “legitimate defense of honor” thesis is unconstitutional. 5 5. The STF upheld the constitutionality of racial affirmative action policies in admissions to public universities. 6

2 Direct Action of Unconstitutionality due to Omission, n°26 and Writ of Injuction n°4733, 2019.

3 Declaratory Action of Fundamental Precept n° 54, 2012. 4 Direct Action of Unconstitutionality n° 4424, 2012. 5 Declaratory Action of Fundamental Precept n º779, 2022. 6 Declaratory Action of Fundamental Precept n°186, 2012.

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