Public & Administrative Law 2025 Comparisons

In judicial challenges to government decisions, the judiciary must apply the relevant public law, considering the federative level (whether the Union, states, federal district or municipalities) as well as the public entity to which the official who issued the decision is accountable. The judiciary must adhere to constitutional and legal principles and rules governing all government acts, alongside specific local and sectoral regulations relevant to the case. Notably, the Federal Constitution of 1988 establishes that the power to regulate certain public law matters may rest solely with one federative entity, be shared among all entities or be concurrent, meaning that legislative authority is divided between the Union, states and the federal district.

Several factors influence the determination of the appropriate judicial forum for challenging government acts in Brazil. If the official or institution responsible for the contested decision belongs to the federal government, the federal courts are typically responsible. If they belong to a state or municipality, the case generally falls under the jurisdiction of the state courts.

Judicial proceedings usually begin in a lower court before a trial judge. However, depending on the authority that issued the decision and the type of legal action involved, the case may need to be filed directly with a higher court, such as a state court of justice, a federal regional court or even one of the superior courts (such as the Superior Court of Justice or the Federal Supreme Court).

For example:

• A challenge to an act by a director of a federal regulatory agency would be filed in a lower federal court and handled by a federal judge.
• A writ of mandamus against an act by the President of the Republic must be filed directly with the Federal Supreme Court.
• If the contested act was issued by a minister of state, the writ of mandamus should be brought before the Superior Court of Justice.

Government acts must comply with the requirements and formalities set out in public law, which public officials are bound to follow. Failure to meet these requirements may lead to administrative or judicial challenges to such acts. The status of the authority responsible for the act can influence which judicial body will hear the case. Additionally, specific rules apply to different types of legal actions (see 1.2 Forum for Judicial Review).

In Brazil, primary federal and state legislative acts (laws approved by the federal or state parliament) can be challenged if they violate constitutional provisions. In “diffuse control”, any litigant can challenge the constitutionality of a law before any judge or court. The judge will assess whether the normative act is unconstitutional in the context of the specific case at hand.

In “concentrated control”, challenges to constitutionality are brought directly before the Federal Supreme Court through specific constitutional actions, such as:

• a direct action of unconstitutionality;
• a declaratory action of constitutionality; or
• a claim of non-compliance with a fundamental precept.

Only certain authorities or institutions, as defined by the Constitution, have standing to initiate these actions. In such cases, the court reviews the law in the abstract, meaning there is no need for a dispute between two parties. If the law is deemed unconstitutional, it is invalidated generally.

Under Brazilian law, the principle of legality prevails, meaning that all sub-legislative norms – such as Presidential Decrees, Ministry Ordinances and other regulations – must be based on laws approved by the National Congress. This means that secondary normative acts can only be issued by the government to regulate an existing law, clarifying how it will be implemented. They cannot create or extinguish rights or obligations. If the government itself identifies an illegal act, it must revoke it ex officio. However, if an unlawful act is not revoked, it is possible to file a lawsuit before the judiciary to seek a declaration of its illegality or unconstitutionality.

Government decisions that affect a single individual can be challenged through both administrative and judicial channels. In addition to the right to challenge such decisions, the affected individual also has the right to appeal any unfavourable outcome.

In general, agreements between public bodies and private entities are formalised through contracts governed by public law. Different types of public contracts are regulated by specific legislation, such as the Public Procurement and Administrative Contracts Law (Law 14,133/2021) and the Concessions Law (Law 8,987/1995), among others. These laws set out detailed guidelines for public procurement and contracting.

Irregularities in public contracts can be challenged by the contracting parties (the government and the private contractor), affected third parties or external oversight bodies, both through administrative and judicial channels. In some cases, disputes may also be resolved through arbitration.

In general, government acts that produce legal effects and impact individuals, businesses or the government itself – such as decision-making acts by public officials – can be challenged. However, preparatory acts, such as technical studies, usually cannot be contested, as they do not, in themselves, affect the rights of those subject to administration. Nonetheless, some important aspects must be considered.

In certain administrative procedures, legislation often requires intermediate acts before a final decision is made to ensure a well-founded public decision. The final decision, in such cases, is considered a “complex” government act. For example, before a public procurement process, several preliminary steps are required by law and regulation, such as technical studies, price research and legal department reviews. If these legally mandated steps are not followed, it can lead to formal challenges and the invalidation of the procurement. Likewise, if the final decision is flawed due to technical or legal deficiencies, it may also be subject to challenge and annulment.

Furthermore, in complex administrative procedures – such as public procurement – the law sometimes explicitly allows for certain acts to be contested even before the process is concluded. One example is the challenge to a request for proposals, which sets out the general rules for competition among interested parties.

It is always advisable to seek legal advice before challenging any government act, ensuring that the specific circumstances and applicable legislation are properly considered.

In Brazil, the Federal Constitution establishes the universality of judicial jurisdiction as a fundamental principle. Strictly private disputes, such as commercial and employment conflicts, can be brought before the courts in accordance with procedural rules, without the need to first resort to private dispute resolution mechanisms. These cases typically fall under the jurisdiction of state courts or labour courts.

This broad access to the judiciary is one of the factors contributing to the high level of litigation in Brazil. However, in recent years, efforts have been made to promote non-judicial dispute resolution mechanisms, such as mediation and arbitration.

The Brazilian Federal Constitution guarantees the universal jurisdiction of the judiciary as a fundamental right, ensuring that no law or contract can prevent individuals or entities from bringing private disputes or cases involving public institutions before the courts.

The exception is arbitration, which may be freely agreed upon by the parties in a contract, including those involving the government. However, it is important to note that only disposable rights (commonly classified as any right that may be assigned, conveyed, waived or settled) can be subject to an arbitration clause. Arbitration has become a common mechanism for resolving disputes, particularly in large infrastructure concession contracts.

As a general rule, claimants must demonstrate that a government decision directly affects their rights. However, under Brazilian law, the judiciary may, in certain cases, intervene to protect diffuse or collective interests without the formal participation of affected individuals. This applies to public civil actions, which may be brought by institutions such as the public prosecutor’s office, the public defender’s office or the federal government, among others. These actions aim to safeguard public assets, the environment, consumer rights and other collective interests, and may also be used to challenge decisions made by the government. For example, the public prosecutor’s office may bring a public civil action to contest a contract entered into by the federal government, alleging a breach of environmental regulations.

There are also cases where a citizen may initiate an administrative or judicial proceeding without proving direct personal harm. This includes situations where an individual reports irregularities to the relevant government authority, which will investigate the matter independently, without requiring the claimant’s involvement. Additionally, as established by the Constitution, any citizen may file a popular action before the judiciary in cases where public assets, the environment or cultural heritage have been harmed.

Charitable institutions and NGOs, as representatives of diffuse and collective interests, may challenge government acts through collective writs of mandamus and public civil actions, even if their own interests are not directly affected, provided they meet the legal requirements for standing.

The entry and participation of third parties in judicial proceedings are generally regulated by the Civil Procedure Code, which sets out the different forms and conditions under which such participation may occur. Beyond these general rules, third-party involvement may be subject to specific procedural regulations. For instance, in writs of mandamus – a legal mechanism used to challenge government acts – the Federal Supreme Court has established firm jurisprudence against third-party intervention.

In administrative and external control proceedings, the principles of publicity, the right to a broad defence and the adversarial process allow third parties to submit information and documents that may contribute to the government decision-making process. Additionally, specific public law regulations – such as those governing public procurement procedures – explicitly permit third parties to challenge the legality of certain steps before the relevant decision-making authority. In the case of public bidding, for example, the law expressly provides that the authority may declare a procedure invalid based on a third-party intervention.

The role of third parties in challenges to government acts varies depending on the type of challenge and the applicable legal framework. When a third party has a direct legal interest in the matter under discussion, they may be admitted as an interested party under the forms provided by procedural law. In this capacity, they can assist one of the parties or protect their own interests, assuming the same rights and obligations as the main parties to the case.

Another form of participation is as an amicus curiae, permitted when the case has significant social or legal relevance. In such instances, specialist entities, public bodies or organisations may provide technical or legal insights to assist the court.

Third-party participation can also occur in an atypical manner, limited to providing information or submitting documents that were not initially included in the proceedings. In these cases, the third party does not remain involved after fulfilling their role of assisting the court with relevant material for the decision.

Public participation in certain government decisions has also become common. For example, regulatory agencies must conduct public consultations before issuing normative acts of general interest to businesses, consumers or service users. This process allows interested parties to submit questions and suggestions, which must be considered by the public authority.

In Brazil, there is no legal requirement for disclosure or authorisation for discovery. However, transparency obligation could be inferred from general principles such as good faith, procedural fairness and the pursuit of factual truth. It is important to note that, as a rule, administrative proceedings are public, meaning that individuals subject to government decisions typically have broad access to relevant documents. Restrictions on access to public information are exceptional and must comply with specific legal requirements.

In the Brazilian legal system, particularly in judicial proceedings, parties are required to submit all available documentary evidence with their initial claim or defence, failing which they may lose the right to do so later (preclusion). Additional documents may only be submitted in exceptional circumstances, such as when new facts arise during the proceedings.

During the course of a case, evidence may also be gathered through witness testimony, expert examinations and judicial inspections. Additionally, judges have the authority to order the production of specific evidence where necessary. The rules governing evidence in judicial proceedings are set out in detail in the Civil Procedure Code.

In contrast, administrative proceedings conducted by the government follow the principle of factual truth, which allows for greater flexibility in the collection of evidence. The government may request documents and information at any stage and allow late submissions where appropriate. The rules governing evidence in administrative proceedings are based on the Public Procedure Law.

These principles ensure comprehensive evidence-gathering, upholding the principles of transparency, publicity and integrity, which are fundamental to public law.

As a general rule, depending on the nature of the case, live evidence may be used as evidence in judicial proceedings. People give evidence under oath, as perjury is a criminal offence in Brazil. Cross-examination was introduced with the enactment of Law 13,105/2015, which amended the Civil Procedure Code.

As a general rule, individuals can access the judiciary at any time without first having to pursue administrative remedies. However, in some cases – such as claims related to the social security system – the courts have ruled that the claimant must first exhaust administrative channels before seeking judicial intervention, typically after a denial of their requested right. This requirement may also apply in other areas where sector-specific government bodies are designated to resolve disputes.

The Civil Procedure Code also provides for prior judicial interpellation, a mechanism that allows an individual to formally notify another person to take or cease a certain action that they believe is their legal right. The interpellation request is submitted to a judge, who forwards it to the respondent, though the respondent is not obliged to reply. However, this procedure is neither mandatory nor a prerequisite for filing a lawsuit.

Article 5, Item XXXV of the Federal Constitution states that “the law shall not exclude from judicial review any injury or threat to a right”. This reflects the principle of non-exclusion of judicial review, meaning that individuals are not required to exhaust administrative remedies before seeking legal action to enforce their rights.

However, it is generally advisable to first pursue administrative channels, provided there is a reasonable chance that the government will grant the requested right. If the request is denied or if government has already established a position contrary to the applicant’s interests, the right to seek judicial intervention is considered established.

The Brazilian legal system provides a wide range of judicial actions that can be brought against the government. These actions are subject to various filing deadlines, which may be set by specific laws or established through judicial precedent.

As a general rule, the deadline for challenging government acts is five years. However, depending on the nature of the claim and the relief sought, this period may vary. For example, a writ of mandamus must be filed within 120 days from the date of the contested act.

In some cases, there is no time limit for filing a lawsuit. For instance, actions seeking reimbursement of public funds due to government impropriety have been deemed imprescriptible by the Federal Supreme Court. Likewise, there is no deadline for filing a habeas corpus – a constitutional remedy that protects individual freedom in cases where a person is illegally detained or faces a threat to their liberty due to abuse of power or an unlawful act.

Under Brazilian law, the initial claim must be accompanied by essential documents required for filing, without prejudice to the production of additional evidence during the investigative phase of the proceedings (see 9.5 Procedural Stages).

The claimant is responsible for presenting facts and evidence to establish their legitimacy and procedural interest in bringing the case. Legitimacy determines who has the right to litigate, while procedural interest requires demonstrating that the legal action is both relevant and necessary for protecting the claimant’s rights.

If the claimant does not possess the essential documents needed to file the claim, they may request the judge to take steps to obtain them. However, in cases of writs of mandamus, the claimant must submit all supporting evidence at the time of filing.

From the outset of proceedings, in the initial claim, the claimant must set out the facts and legal grounds of their case and submit any essential evidence to support their claim. The claimant must also specify, in the initial claim, any additional evidence they intend to present during the evidentiary stage, known as the instruction phase.

The stages of a judicial process are typically divided into the following phases:

• pleadings;
• collection of evidence;
• decision;
• appeal; and
• enforcement.

The initial claim must comply with the requirements set out in the Civil Procedure Code, failing which it may be rejected. A claim will be rejected if it does not clearly specify:

• the court to which it is addressed;
• information sufficient to identify the defendant;
• the facts and legal grounds of the claim;
• the relief sought, with its specifications;
• the value of the claim;
• essential evidence to establish the claimant’s standing and procedural interest, as well as any additional evidence intended to prove the alleged facts; and
• whether the claimant opts for a conciliation or mediation hearing.

Additionally, an initial claim will be rejected if it is deemed defective (inept) – for example, if it:

• lacks a cause of action or a clear request;
• contains an indeterminate request;
• includes contradictory requests; or
• presents a narrative of facts that does not logically support the claim.

The claim will also be inadmissible if the claimant lacks legal standing or procedural interest.

There is no fast-track procedure specifically for urgent cases. However, Brazilian law allows for the granting of urgent measures in judicial proceedings. One such mechanism is preliminary injunctive relief, which can be requested at the start of a legal action. If granted, it provisionally advances the substantive right claimed by the party, provided there is evidence of imminent harm or a risk to the effective outcome of the case.

There are also precautionary injunctions, which serve an instrumental purpose, aiming to preserve the status quo of the parties until a final decision is reached. Additionally, Brazilian law provides for priority case processing in certain situations, particularly when the claimant is an elderly person, a person with a disability or a minor (child or adolescent).

The judiciary is responsible for reviewing the legality of government acts and ensuring the regularity of the administrative process in which the act was issued. However, the courts should not intervene in the substance of government decisions – that is, in matters of convenience or opportunity where the government exercises its discretionary powers.

Brazil has a written constitution, the Constitution of the Federative Republic of Brazil (1988). It is indeed possible to challenge the constitutionality of government decisions through the courts. In other words, a constitutional review allows the judiciary to assess whether government acts comply with the Constitution. It is also possible to file a constitutional complaint before the Federal Supreme Court against government acts that harm precedents established by the Supreme Court on constitutional matters. For more details on the Brazilian system of constitutional review, see 3.1 Challenging Primary Legislation.

A government decision can be challenged if it fails to follow the procedure set out in the applicable legislation.

A government decision can be challenged if it fails to properly assess the facts and evidence in the administrative process.

Government discretion allows public officials to make decisions based on convenience and opportunity, provided they act within legal limits and comply with the requirements of the act – namely, competence, purpose, form, motive and object. If a public official unlawfully abdicates their decision-making power or improperly restricts their discretion in violation of applicable regulations, this may constitute a defect in the government act. In such cases, the act can be challenged.

Decisions made in violation of the constitutional principle of impartiality can be challenged.

The principle of equality requires that everyone be treated equally before the law, except in cases where differential treatment is legally justified. If it is proven that unequal treatment was applied without legal or reasonable justification, the government act may be deemed invalid for violating the principle of equality enshrined in the Brazilian Federal Constitution.

Brazil is a signatory to the American Convention on Human Rights (Pact of San José, Costa Rica) and the International Covenant on Civil and Political Rights. Human rights violations can be challenged before Brazilian courts as well as through the Inter-American System for the Protection of Human Rights (SIPDH), which comprises the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights.

The principle of proportionality is widely recognised and firmly embedded in Brazilian law, particularly in matters of constitutional review and public law. It is frequently invoked to challenge legislative and government acts that violate fundamental rights or impose disproportionate restrictions on citizens.

Brazil follows a civil law system. As such, the fundamental principle of the public regime is the principle of legality, which dictates that the government may only act in accordance with legal norms. Additionally, government acts must comply with the following principles:

• purpose;
• motivation;
• reasonableness;
• morality;
• the right to a broad defence;
• the right to adversarial proceedings;
• legal certainty;
• public interest; and
• efficiency.

Failure to do so may render the act subject to challenge. Challenges may also be brought against government decisions that are based on abstract values without due consideration of the practical consequences of the act.

The Brazilian Federal Constitution establishes that all government and judicial decisions are subject to judicial review. This principle is known as the non-exclusion of judicial review. However, when it comes to discretionary government acts, the judiciary is limited to reviewing their legality and constitutionality, without interfering in the merits of government discretion.

Once an ordinary claim has been filed by the claimant, the defendant will be summoned to present their defence statement in the judicial proceedings. In this statement, the defendant must set out all defence arguments, explaining the factual and legal grounds for contesting the claimant’s request and specifying any evidence they intend to submit.

Additionally, before addressing the substantive legal issues, the defendant must raise any preliminary objections, which may reveal procedural defects, whether rectifiable or fatal. In cases involving writs of mandamus, the coercive authority must respond by submitting what is known as a “statement of information”, in which they may justify or defend the challenged government act.

Brazilian law allows for the granting of provisional remedies. In ordinary claims, these fall into two categories: urgent relief and evidence-based relief.

For urgent relief, the claimant must demonstrate that the challenged government act poses a risk of harm or jeopardises the effective outcome of the proceedings. This type of relief may be granted at the outset, during the course of the proceedings or even at the appeal stage.

Evidence-based relief, by contrast, is not dependent on urgency but is granted solely on the basis of a very high probability that the claimant’s right will be upheld. In cases involving a writ of mandamus against government acts, a preliminary order may be granted if there are substantial grounds and a risk to the effective outcome of the case.

If an government act is deemed unlawful and causes harm to an individual, compensation may be sought, provided that a causal link between the state’s conduct and the harm suffered can be established.

The judiciary is responsible for reviewing the legality and constitutionality of laws and normative acts. Legality review can take place in any judicial proceeding. Constitutional review may be carried out in two ways:

• diffuse review, which occurs within the context of a specific case under judgment; or
• concentrated review, which is conducted directly by the Federal Supreme Court. For more details on this topic, see 3.1 Challenging Primary Legislation.

The judiciary may require the government to take specific measures if it finds a breach of legal or constitutional rules. However, the judiciary cannot replace the government’s discretion with its own judgment in discretionary decisions. In such cases, judicial review is limited to ensuring legality.

The government may invalidate its own acts if it identifies defects that render them unlawful, as unlawful government acts do not create rights. The government may also revoke its acts for reasons of convenience or opportunity but, in such cases, acquired rights must be respected. If an government act is deemed unlawful, the government is responsible for determining whether there was a serious error or abuse of power and for holding the officials involved accountable. When illegality is identified within a judicial proceeding, the next steps will depend on the type of judicial review (diffuse or concentrated control) and the relief sought by the parties. These may include the annulment of the act or the liability of the state entity.

The Federal Supreme Court has ruled that the absence of fixed maximum court costs in judicial proceedings violates the constitutional principle of non-exclusion of judicial review. Court fees and procedural expenses are regulated by law and by government acts issued by the courts. Additionally, judges are responsible for determining the remuneration of experts, interpreters and translators – after consulting the parties – taking into account the following:

• the location of the service;
• the nature and complexity of the work; and
• the estimated time required.

The benefit of legal aid (commonly referred to as “free justice” in Brazil) may be granted to low-income individuals.

As a general rule, court costs are not charged in cases involving diffuse or collective interests. Under Law 9,289/1996, the following, along with their respective agencies and public foundations, are exempt from paying court costs:

• the federal government;
• states;
• municipalities;
• federal territories;
• the federal district; and
• the public prosecutor’s office.

This exemption also applies to claimants in the following:

• popular actions;
• public civil actions;
• collective actions;
• habeas corpus; and
• habeas data proceedings.

There are no provisions for wasted costs. However, it is important to note that Brazilian lawyers are regulated by the Advocacy Statute, which is enacted under federal law. The Statute sets out a range of rights and obligations for lawyers, who may be held accountable in certain circumstances. It also defines various disciplinary offences, which can result in penalties such as censure, suspension, exclusion or fines.

A judgment issued by a lower court judge can be appealed to a higher court. Additionally, there are the highest courts, namely the Superior Court of Justice and the Federal Supreme Court. The Superior Court of Justice is responsible for ensuring the uniform interpretation of infra-constitutional laws, while the Federal Supreme Court serves as Brazil’s Constitutional Court.

Federal courts have jurisdiction to hear appeals in cases challenging government acts issued by authorities representing the Union, federal agencies or federal public companies. Conversely, state courts are responsible for hearing appeals against judicial decisions concerning government acts issued by state or municipal authorities. After a higher court judgment, further appeals may be lodged with the Superior Court of Justice and/or the Federal Supreme Court, in accordance with their respective jurisdictions.

All lower court decisions are subject to a two-tier system of judicial review. Appeals to the Superior Court of Justice and the Federal Supreme Court are first subject to an admissibility assessment by the higher courts. If an appeal is not permitted at this stage, the superior courts may give permission to proceed.

Courts of appeal have the authority to re-examine all matters raised in a case in order to review the issues challenged in the lower court’s decision. The Superior Court of Justice and the Federal Supreme Court only hear appeals on legal grounds.