Brazil - Revision history

IBJadmin: /* The Legal System in Brazil */

2015-08-02T15:05:15Z

The Legal System in Brazil

← Older revision		Revision as of 17:05, 2 August 2015
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	The Supreme Federal Tribunal is the ultimate interpreter of the Brazilian Constitution. There are 11 ministers appointed by the president and approved by the Senate. The minister must be of an age between 35 to 65 years old, have notorious legal knowledge, and unblemished reputation. In other words, the minister does not need to hold a law degree or equivalent. As a matter of fact, Brazil has had one minister who held a medical degree, , Dr. Cândido Barata Ribeiro. <ref> http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf </ref>		The Supreme Federal Tribunal is the ultimate interpreter of the Brazilian Constitution. There are 11 ministers appointed by the president and approved by the Senate. The minister must be of an age between 35 to 65 years old, have notorious legal knowledge, and unblemished reputation. In other words, the minister does not need to hold a law degree or equivalent. As a matter of fact, Brazil has had one minister who held a medical degree, , Dr. Cândido Barata Ribeiro. <ref> http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf </ref>

	=='''The Legal System ~~in Brazil~~'''==		=='''The Legal System'''==

	Brazil has adopted the civil law system inspired by the Romano-Germanic laws. Although jurisprudence is considered under some circumstances, the system favors codified laws over judicial precedent.		Brazil has adopted the civil law system inspired by the Romano-Germanic laws. Although jurisprudence is considered under some circumstances, the system favors codified laws over judicial precedent.

IBJadmin: /* Background */

2015-08-02T15:04:43Z

Background

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	=='''Background'''==		=='''Background'''==

	Brazil is a country consisted of 26 states and a federal district, Brasilia~~. The country’s form of government adopted by the 1988 constitution is of a federal republic~~. Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro.		Brazil is a country consisted of 26 states and a federal district, Brasilia.Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro. The country’s form of government adopted by the 1988 constitution is federal republic.

	Brazil is an independent country since September 7 of 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military dictatorship. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>		Brazil is an independent country since September 7 of 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military dictatorship. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>

IBJadmin: /* Background */

2015-07-29T15:39:10Z

Background

← Older revision		Revision as of 17:39, 29 July 2015
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	=='''Background'''==		=='''Background'''==

	Brazil is a country consisted of 26 states and ~~one~~ federal district, Brasilia. The country’s form of government adopted by the 1988 constitution is of a federal republic. Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro.		Brazil is a country consisted of 26 states and a federal district, Brasilia. The country’s form of government adopted by the 1988 constitution is of a federal republic. Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro.

	Brazil is an independent country since September 7 of 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military dictatorship. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>		Brazil is an independent country since September 7 of 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military dictatorship. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>

IBJadmin: /* Police Procedures */

2015-07-29T13:37:55Z

Police Procedures

Show changes

IBJadmin: /* Fair Trial Rights */

2015-07-28T16:20:07Z

Fair Trial Rights

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	'''Speedy Trial'''		'''Speedy Trial'''

	The right of the accused to have a speedy trial is a constitutional guarantee. <ref> Article 5 section LXXXIII, Constitution, 1988 </ref> This ~~constitutional~~ guarantee assures ~~a reasonable duration of a criminal action and~~ the means to guarantee ~~the~~ reasonable speed ~~of it~~. However, there is an omission from the legislator ~~about~~ what would be a reasonable time span for a criminal action.		The right of the accused to have a speedy trial is a constitutional guarantee. <ref> Article 5 section LXXXIII, Constitution, 1988 </ref> This guarantee assures the means to guarantee a reasonable speed for a criminal action. However, there is an omission from the legislator in regards to what would be a reasonable time span for a criminal action.

	'''Presumption of Innocence'''		'''Presumption of Innocence'''
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	'''Rehabilitation of the Detainee'''		'''Rehabilitation of the Detainee'''

	The purpose of the incarceration of the wrongdoer is to rehabilitate the individual back to society, rather than punishing him/her. This humanitarian approach intents to assure the application of a just sentence that is proportional to the individual's wrongful action or omission.		The purpose of the incarceration of the wrongdoer is to rehabilitate the individual back to society, rather than punishing him/her. This humanitarian approach intents to assure the application of a just sentence that is proportional to the individual's wrongful action/omission.

	'''Capital Punishment'''		'''Capital Punishment'''

	The maximum imprisonment time in Brazil is 30 years. A judge can sentence a wrongdoer to over 30 years imprisonment, but the individual will remain imprisoned for 30 years maximum. Since the imprisonment time can decrease due to individual's good behavior, those who commit heinous crimes may receive sentences greater than 30 years ~~imprisonment~~ to outweigh the benefits of committing or omitting a wrongful action and be set free too early.		The maximum imprisonment time in Brazil is 30 years. A judge can sentence a wrongdoer to over 30 years imprisonment, but the individual will remain imprisoned for 30 years maximum. Since the imprisonment time can decrease due to individual's good behavior, those who commit heinous crimes may receive sentences greater than 30 years to outweigh the benefits of committing or omitting a wrongful action and be set free too early.

	As provided in the Constitution of 1988, there is no permission for the implementation of the death penalty~~, with the~~ only exception being during war times. <ref> Article 5, section XLVII, Constitution, 1988 </ref> Nevertheless, the last time Brazil has fought a war was in 1823.		As provided in the Constitution of 1988, there is no permission for the implementation of the death penalty in Brazil. The only exception being during declared war times. <ref> Article 5, section XLVII, Constitution, 1988 </ref> Nevertheless, the last time Brazil has fought a war was in 1823.

	<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> '''CRIMINAL PROCEDURE''' </H2>		<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> '''CRIMINAL PROCEDURE''' </H2>

IBJadmin: /* Criminal Law System */

2015-07-28T15:56:17Z

Criminal Law System

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	'''The protection of the Public Interests'''		'''The protection of the Public Interests'''

	The Constitution recognizes primary scope of criminal law and its essential interest in protecting the individuals and the community.		The Constitution recognizes the primary scope of the criminal law and its essential interest in protecting the individuals and the community.

	'''The Subsidiary Principle or Minimum Intervention'''		'''The Subsidiary Principle or Minimum Intervention'''

IBJadmin: /* Criminal Law System */

2015-07-28T15:53:45Z

Criminal Law System

IBJadmin: /* Sources of Defendant's Rights */

2015-07-28T15:30:52Z

Sources of Defendant's Rights

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	''Litigants, in judicial or administrative proceedings and defendants in general are ensured of the contradictory and full defense with the means and resources inherent to it.''<ref> http://www.senado.gov.br/legislacao/const/con1988/con1988_05.10.1988/art_5_.shtm </ref>		''Litigants, in judicial or administrative proceedings and defendants in general are ensured of the contradictory and full defense with the means and resources inherent to it.''<ref> http://www.senado.gov.br/legislacao/const/con1988/con1988_05.10.1988/art_5_.shtm </ref>

	The Brazilian CPC recognizes several constitutional guaranties to assure the integrity of an individual. Specifically, the CPC recognizes due process rights, including presumption of innocence; right to counsel; protection against self-incrimination; protection against the use of evidence illegally obtained; and the protection against unreasonable and disproportionate sentences.		The Brazilian CPC recognizes several constitutional guaranties to assure the integrity of an individual. Specifically, the CPC recognizes due process rights, including the presumption of innocence; right to counsel; protection against self-incrimination; protection against the use of evidence illegally obtained; and the protection against unreasonable and disproportionate sentences.

	<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> '''RIGHTS OF THE ACCUSED''' </h2>		<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> '''RIGHTS OF THE ACCUSED''' </h2>

IBJadmin: /* Type of System */

2015-07-28T15:24:52Z

Type of System

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	'''Executive Branch''' <ref> Article 76 through 91, Constitution, 1988 </ref>		'''Executive Branch''' <ref> Article 76 through 91, Constitution, 1988 </ref>

	The executive branch oversees the administration of Brazil lead by the president and vice-president. The president is the chief executive, the commander-in-chief of the Brazilian armed forces, and the one to represent the country internationally. In addition, the president is responsible for decreeing the state of defense and state of siege. He/She is elected for a four-years term and is eligible for one more consecutive re-election. The vice-president fills in for the president when the president travels abroad, and replaces the president in case of death, resignation, or impeachment.		The executive branch oversees the administration of Brazil lead by the president and vice-president. The president is the chief executive, the commander-in-chief of the Brazilian armed forces, and the one to represent the country internationally. In addition, the president is responsible for decreeing the state of defense and state of siege. He/She is elected for a four-years term and is eligible for one more consecutive re-election. The vice-president fills in for the president when the president travels abroad, and replaces the president in case of his/her death, resignation, or impeachment.

	The president is responsible for executing the laws created by the legislative branch, but he/she can also propose amendments to the constitution. Moreover, the president can create temporary laws through a constitutional mechanism when these laws are relevant and urgent ~~for~~ the country. This constitutional mechanism is called “interim measure.” The president creates a law and the National Congress has 60 days to analyze ~~the~~ it and make a decision of whether to become law. If the National Congress does not reach a decision in regards to the interim measure created by the president, the deadline will be extended for another 60 days. <ref> http://www12.senado.leg.br/noticias/entenda-o-assunto/medida-provisoria-1</ref> After this deadline, if the National Congress has not reached a decision, the interim measure becomes ineffective.		The president is responsible for executing the laws created by the legislative branch, but he/she can also propose amendments to the constitution. Moreover, the president can create temporary laws through a constitutional mechanism when these laws are relevant and urgent to the country. This constitutional mechanism is called “interim measure.” The president creates a law and the National Congress has 60 days to analyze it and make a decision of whether to become law. If the National Congress does not reach a decision in regards to the interim measure created by the president, the deadline will be extended for another 60 days. <ref> http://www12.senado.leg.br/noticias/entenda-o-assunto/medida-provisoria-1</ref> After this deadline, if the National Congress has not reached a decision, the interim measure becomes ineffective.

	'''Legislative Branch''' <ref> Article 44 through 75, Constitution, 1988 </ref>		'''Legislative Branch''' <ref> Article 44 through 75, Constitution, 1988 </ref>

	The Brazilian federal legislative branch is called National Congress, and it is composed of the Senate (or House of the Federation) and the Chamber of Deputies (or House of People). <ref> http://www12.senado.gov.br/internacional/en/the-legislative-branch </ref> The Chamber of Deputies is consistent of 513 parliamentarians proportionally representing the population of the state he/she was elected from. A deputy is elected for a four-years term. The minimum number of representatives per state is 8 and the maximum is 70. For example, the state of São Paulo with a population of more than 41 million citizens elects 70 deputies, whereas the state of Amapá with a population ranging around 450 thousand citizens elects only 8 deputies. <ref> http://www12.senado.gov.br/internacional/en/the-legislative-branch </ref> The Senate is consistent of 81 senators equally representing each state for a term of eight-years. ~~In other words,~~ there are three senators for each state and three representing the Federal District. The election for senators is in a one-third ~~and~~ two-third system. ~~For example~~, one-third of the senators are elected during a given election, and two-thirds are elected two years later.		The Brazilian federal legislative branch is called National Congress, and it is composed by the Senate (or House of the Federation) and the Chamber of Deputies (or House of People). <ref> http://www12.senado.gov.br/internacional/en/the-legislative-branch </ref> The Chamber of Deputies is consistent of 513 parliamentarians proportionally representing the population of the state he/she was elected from. A deputy is elected for a four-years term. The minimum number of representatives per state is 8 and the maximum is 70. For example, the state of São Paulo with a population of more than 41 million citizens elects 70 deputies, whereas the state of Amapá with a population ranging around 450 thousand citizens elects only 8 deputies. <ref> http://www12.senado.gov.br/internacional/en/the-legislative-branch </ref> The Senate is consistent of 81 senators equally representing each state for a term of eight-years. So there are three senators for each state and three representing the Federal District. The election for senators is based on a one-third/two-third system. In other words, one-third of the senators are elected during a given election, and two-thirds are elected two years later.

	There is a president for the Senate and a president for the Chamber of Deputies. They are elected through a secret vote system placed during elections in each house. The president of the Senate is also the president of the National Congress. The president of the Chamber of Deputies is the second in line to replace the president in case of death, resignation, or impeachment, whereas the president of the Senate is the third in line to replace the president.		There is a president for the Senate and a president for the Chamber of Deputies. They are elected through a secret vote system placed during elections in each house. The president of the Senate is also the president of the National Congress. The president of the Chamber of Deputies is the second in line to replace the president in case of death, resignation, or impeachment, whereas the president of the Senate is the third in line to replace the president.
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	According to the Federal Constitution of 1988, the judicial branch is consistent of the Supreme Federal Tribunal, National Council of Justice, Superior Court of Justice, regional federal courts, labor courts, electoral courts, military courts, and state courts of the states and the Federal District.		According to the Federal Constitution of 1988, the judicial branch is consistent of the Supreme Federal Tribunal, National Council of Justice, Superior Court of Justice, regional federal courts, labor courts, electoral courts, military courts, and state courts of the states and the Federal District.

	The Supreme Federal Tribunal is the ultimate interpreter of the Brazilian Constitution. There are 11 ministers appointed by the president and approved by the Senate. The minister must be of an age between 35 to 65 years old, have notorious legal knowledge, and unblemished reputation. In other words, the minister does not need to hold a law degree or equivalent. As a matter of fact, Brazil has had one minister, Dr. Cândido Barata Ribeiro~~, who held a medical degree~~. <ref> http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf </ref>		The Supreme Federal Tribunal is the ultimate interpreter of the Brazilian Constitution. There are 11 ministers appointed by the president and approved by the Senate. The minister must be of an age between 35 to 65 years old, have notorious legal knowledge, and unblemished reputation. In other words, the minister does not need to hold a law degree or equivalent. As a matter of fact, Brazil has had one minister who held a medical degree, , Dr. Cândido Barata Ribeiro. <ref> http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf </ref>

	=='''The Legal System in Brazil'''==		=='''The Legal System in Brazil'''==

IBJadmin: /* Background */

2015-07-28T14:51:09Z

Background

← Older revision		Revision as of 16:51, 28 July 2015
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	=='''Background'''==		=='''Background'''==

	Brazil is a country consisted of 26 states and one federal district, Brasilia~~, which is the country's capital~~. The country’s form of government adopted by the 1988 constitution is of a federal republic. Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro.		Brazil is a country consisted of 26 states and one federal district, Brasilia. The country’s form of government adopted by the 1988 constitution is of a federal republic. Brasilia is the capital since April 21, 1960, and it is the third Brazilian capital. <ref> http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil </ref> The previous capitals were Ouro Preto and Rio de Janeiro.

	Brazil is an independent country since September 7, 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military ~~control of the government~~. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>		Brazil is an independent country since September 7 of 1822, but due to some of its states resistance, the transition to independence lasted until 1825. Nevertheless, September 7 is recognized as the Brazilian Independence Day, and it is a national holiday in the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8 of 1988. The Constitution of 1988 entered in force after 21 years of military dictatorship. It was revised in 1993 and received six alterations, and as of 2013, it was amended 74 times. <ref>http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes</ref>

	=='''Type of System'''==		=='''Type of System'''==

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	'''Legality Principle or the Legal Reserve'''		'''Legality Principle or the Legal Reserve'''

	The legality principle requires the law to be clear, assured, and non-retroactive. The Constitution and the Criminal Code (CC) stipulate that there is no crime without a previous law to define what ~~that~~ crime is, nor punishment without prior legal sanction. <ref>Article 5, section XXXIX, Constitution, 1988; Article 1, Criminal Code </ref> This principle safeguards four fundamental ideas:		The legality principle requires the law to be clear, assured, and non-retroactive. The Constitution and the Criminal Code (CC) stipulate that there is no crime without a previous law to define what the crime is, nor punishment without prior legal sanction. <ref>Article 5, section XXXIX, Constitution, 1988; Article 1, Criminal Code </ref> This principle safeguards four fundamental ideas:

	(1) forbids the retroactivity of criminal law;		(1) forbids the retroactivity of criminal law;

	(2) forbids the creation of crimes through customs;		(2) forbids the creation of crimes through societal customs;

	(3) prohibits the use of analogy to create crimes or aggravate penalties; and		(3) prohibits the use of analogy to create crimes or aggravate penalties; and
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	'''Retroactivity of Criminal Law'''		'''Retroactivity of Criminal Law'''

	The only ~~exception to the non-retroactivity of the law~~ is ~~when it retroacts~~ to favor the accused. This principle ensures that nobody will be punished by an action, in which at the time of its commitment or omission was regarded as criminally indifferent given the absence of any ~~criminal~~ law defining the crime.		The law will only retroact if it is to favor the accused. This principle ensures that nobody will be punished by an action, in which at the time of its commitment or omission, it was regarded as criminally indifferent given the absence of any law defining the crime.

	'''Determination'''		'''Determination'''

	The principle of determination stipulates that the law ~~formulated~~ must be sufficiently clear and precise in its legal content and ~~its~~ establishment of sanctions to guarantee legal certainty. The principle of determination is imposed on the legislator when drafting the laws to attempt to a maximum precision of its elements. It also favors the judiciary that interprets the laws restrictively to preserve the effectiveness of the principle.		The principle of determination stipulates that the law created must be sufficiently clear and precise in its legal content and establishment of sanctions in order guarantee legal certainty. The principle of determination is imposed on the legislator when drafting the laws to attempt to a maximum precision of its elements. It also favors the judiciary that interprets the laws restrictively to preserve the effectiveness of the principle.

	'''The protection of the Public Interests'''		'''The protection of the Public Interests'''

	The Constitution recognizes ~~the immediate and~~ primary scope of criminal law and its essential interest in the ~~protection of~~ individuals and community.		The Constitution recognizes primary scope of criminal law and its essential interest in protecting the individuals and the community.

	'''The Subsidiary Principle or Minimum Intervention'''		'''The Subsidiary Principle or Minimum Intervention'''

	The ~~criminal law should only acts in defense of the legal interests that are essential to the peaceful coexistence of people that cannot be effectively protected in a less onerous way. Thus, the~~ criminal law should intervene only when absolutely necessary for the community’s peaceful existence. ~~Nevertheless~~, the criminal law ~~should intervene~~ as a last resort.		The criminal law should intervene only when absolutely necessary for the community’s peaceful existence. Thus, the criminal law is only applied as a last resort. It is based on this principle that some actions and/or omissions are selected to remain under public tutelage. Regarded as an important principle, it is also how the legislature becomes aware of changes in society. Hence, as society evolves and the public interest shifts, the criminal law may remove certain incriminating actions/omissions from the Criminal Code. When an action/omission is no longer a crime, the law may retroact to benefit the accused, even if the accused has been already sentenced. This is one exception to the retroactivity of the criminal law.

	It is based on this principle that ~~goods~~ are selected to remain under ~~the~~ tutelage ~~of criminal law~~. Regarded as an important principle, it is also how the legislature becomes aware of changes in society. Hence, as society evolves and the ~~importance to goods~~ shifts, the criminal law may remove certain incriminating actions from the Criminal Code. ~~This~~ is ~~one exception as to when~~ a law ~~decriminalizing a certain action~~ may retroact to benefit the accused, even if the accused has been already sentenced.

	=='''Fair Trial Rights'''==		=='''Fair Trial Rights'''==