Brazil

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


INTRODUCTION

Background

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. [1] 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. [2]

Type of System

The constitution is the supreme law of Brazil, and it stipulates the country to be ruled by three independent powers: the legislative, the executive, and the judicial. The member-states of the federation are not sovereign. Instead, the states are autonomous to establish its governmental organization and administrative capacity as long as the limits of the federal constitution are respected.

Executive Branch [3]

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 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. [4] After this deadline, if the National Congress has not reached a decision, the interim measure becomes ineffective.

Legislative Branch [5]

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). [6] 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. [7] 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.

Judicial Branch [8]

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 who held a medical degree, , Dr. Cândido Barata Ribeiro. [9]

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.

The constitution recognizes that all citizens are equal before the law, without distinction of any kind. [10] It guarantees to Brazilians and foreigners residing in the country the inviolable right to life, liberty, equality, safety, and property. The constitution also ensures legal defense for individuals facing criminal charges. [11]

Brazil has the fourth biggest incarcerated population in the world, behind of the United States, China, and Russia. There are about five hundred thousand individuals incarcerated in the country with a deficit of two hundred thousand vacancies. According to the National Penitentiary Department (Depen), in 2010, Brazil had an incarcerated population 66% higher than its ability to house them. [12] This problematic is a major focus of the United Nations criticism on the country’s disrespect for human rights. [13]

Sources of Defendant's Rights

The defendant’s rights in criminal proceedings are found on Article 5, section LV of the Constitution and throughout the Criminal Procedure Code (CPC). The article 5, section LV establishes the following:

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.[14]

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.

RIGHTS OF THE ACCUSED

Criminal Law System

The dignity of human beings is the main guiding principle of the criminal law in Brazil.

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 the crime is, nor punishment without prior legal sanction. [15] This principle safeguards four fundamental ideas:

(1) forbids the retroactivity of criminal law;

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

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

(4) prohibits vague and indeterminate sentences.

Retroactivity of Criminal Law

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

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 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 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.

Fair Trial Rights

Due Process

According to the Constitution, “nobody will be deprived from his/her freedom or property without due process.” However, the appreciation of other principles is important to ensure the application of due process rights, such as the right to counsel, publicity, and the free and rational persuasion of the judge. [16]

Speedy Trial

The right of the accused to have a speedy trial is a constitutional guarantee. [17] 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

In Brazil, the criminal law procedure favors the accused. Therefore, the accused is presumed innocent until proven guilty. An assumption that the accused committed a crime is not enough; factual proof is necessary to guarantee that the individual is guilty.

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/omission.

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 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 in Brazil. The only exception being during declared war times. [18] Nevertheless, the last time Brazil has fought a war was in 1823.

CRIMINAL PROCEDURE

Police Procedures

Complaint/Information

Article 24 of the CPC establishes that a criminal prosecution starts with a complaint. Criminal proceedings in Brazil can be public or private depending on who is filing the complaint – the prosecution or the victim and/or his/her representative. [19] In other words, the victim and/or his/her representative can initiate a private criminal action as well. According to the Criminal Code (CC), there are specific types of crimes in which the complaint is exclusively made by public ministration. [20] However, there is a legal deadline for the submission of a complaint, and if the public ministration fails to submit it, the victim and/or his/her representative can file a complaint initiating a private criminal action.

Arrest

According to the CPC, an ordinary citizen has the power to arrest a suspect of a crime who is found in flagrant delicti or is fleeing from the crime scene. [21] The ordinary citizen must have physical power over the suspect. The ordinary citizen must explain to the suspect that he/she is under arrest. The police must be contacted, and everybody involved in the arrest must wait for the police to arrive. The ordinary citizen becomes a witness and he/she must report his/her own version of the facts.

A warrantless arrest on flagrant delicti or for military crimes are the only exceptions specified in the constitution. [22] After a warrantless arrest, the CPC establishes that the suspect must be immediately interrogated. The deadline for the interrogation to happen is 24 hours. [23]

Pre-trial Detention

The CPC provides a deadline of 24 hours for the magistrate to receive the documents of a flagrant delicto arrest. [24] Once the magistrate receives the documents, the judge can do the following:

(1) dismiss the arrestee if the arrest was illegal;

(2) convert the flagrant delicto arrest into preventive arrest; or

(3) release on bail, with or without stipulating a monetary amount for it.

In addition, the CPC establishes the grounds in which an individual can be arrested as a preventive measure. [25] The judge can order a preventive detention of an individual, or the prosecutor can request for preventive detention if demonstrated the importance for the request. The preventive detention may be decreed to guarantee the public and economic order, and/or to ensure the application of the criminal law. A preventive detention may also be imposed in cases of breach of any obligation or precautionary measure imposed on the individual by the magistrate. The preventive detention may be admitted without motive on any of the following grounds:

(1) heinous crimes punishable with imprisonment time of over 4 years;

(2) if the individual has been convicted of another felony;

(3) if the crime involves domestic violence against women, children, teenager, elderly, and or handicap.

Searches

A warrantless search of a person is allowed during an eminent arrest or when there is reasonable suspicion that the person is carrying an illegal weapon, objects, or papers that constitute corpus delicti. A warrantless search is also allowed when the measure is determined in the course of a home search. [26] Notwithstanding, the search on women, independently of a warrant, must be done by another woman as long as there is no delay or loss of diligence in such situations. [27]

Interrogation

The interrogation is one of the most important parts of the criminal procedure. [28] The accused has the right to meet with his attorney before any interrogation. The privacy of the meeting is guaranteed even if the meeting takes place over the phone. This right is also specified in the Constitution. [29]

Before the start of the interrogation, the judge must inform the accused about his/her right to remain in silence and to not answer to questions he/she wishes to not answer. The right to remain in silence causes no prejudice to the accused, and it is not considered a confession.

At any time the accused appears before a judicial authority, he/she must be interrogated in the presence of his/her attorney. The room the suspect will be interrogated is usually a private room where the person has been detained, as long as the safety of the judge, prosecutor, and staff is ensured. Under some circumstances however, the judge may opt to interrogate the suspect through videoconference.

Moreover, the interrogation is divided in two sets of questions. First, the accused is asked about his/her personal information such as, name, address, professional occupation, and if the person has previously been convicted of a crime. The second part of the interrogation is reserved for questions related to the crime that is been investigated.

Right to Counsel

The CCP states that “nobody been accused, even if absent or fugitive will be prosecuted or tried without a counsel.” [30] If an individual does not have an attorney or cannot afford one, the judge may appoint a public defender. However, if the accused is not considered poor, he/she will be obligated to pay for the attorney’s fees. [31] If shown that the accused is poor, the judge may nominate a public defender even if it is a private criminal action.

Court Appearance

A criminal action starts with either a complaint filed by the Magistrate or a complaint filed by the victim and/or his/her legal representative. If the judge accepts the complaint, there is a 10 working days deadline for the judge to order the summons requiring the accused to respond for the charge(s) with his/her defense. [32]

In the reply, he/she can provide any documents and justifications he/she believes will help on his/her defense. In addition, the accused must appoint his/her witnesses. Each party can appoint a maximum of 8 witnesses, including expert witnesses. [33] In the reply, there must be an indication of who the defense attorney is, and if there isn’t an indication, the judge will appoint a public defender. [34] Based on the written defense, the judge can summarily acquit the defendant. If not, a hearing is set.

Preliminary Hearing

According to the CPC, during the preliminary hearing, the plaintiff is the first to speak, followed by the witnesses of both parties, including the clarification of expert witness, and lastly the accused. [35]

After the hearing, the court will determine whether there are grounds to presume that the accused is guilty of the charges. [36] The court may dismiss the case if the charges are not sustained, or it shall bring the case to be heard in front of a jury trial if the grounds to charge the suspect are unsatisfied. [37]

Trial

In a public criminal action, the prosecutor is the first one to speak, and in a private criminal action, the plaintiff is the first one to speak. [38] In general, the stipulated time to speak is one hour and a half for each party, one hour for the response, and another hour for the rejoinder. [39] The presentation of documents and the hearing of the witnesses are included in the time stipulated to each party to speak. There will be extra time if there is more than one plaintiff and/or accused.

During the trial, no new evidence will be admitted. Any new evidence must be submitted within at least three working days prior to the trial date. This requirement is in place to guarantee that the opposing party has knowledge of the additional evidences, and can be prepared to it. [40]

Expert Witnesses

For matters requiring a certain level of expertise, the court may appoint an expert witness to share his/her knowledge about a specific subject to assist the court in analyzing the issue. The appointed expert witness is obligated to accept the work, and he/she is subjected to a fine if he/she doesn’t do so. [41] A translators is considered an expert witness as well.

Appeal

An appeal action is an effective procedural instrument that guarantees the reanalysis of a criminal action decision. An appeal action is allowed against condemnatory sentences, acquittals sentences, and in cases established in article 593, section I and II of CPC. Article 593 establishes that an appeal action is allowed against decisions made in stricto sensu and in lato sensu. In other words, a stricto sensu decision is the jurisprudence that applies to decisions relating to a particular case, whereas a lato sensu decision is the broad sense of jurisprudence as the set of all judicial decisions. The deadline to appeal to a sentence is 5 working days starting from the day both parties have knowledge about the final decision. [42]

References

  1. http://www.ebc.com.br/infantil/voce-sabia/2014/07/brasilia-e-a-terceira-capital-do-brasil
  2. http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes
  3. Article 76 through 91, Constitution, 1988
  4. http://www12.senado.leg.br/noticias/entenda-o-assunto/medida-provisoria-1
  5. Article 44 through 75, Constitution, 1988
  6. http://www12.senado.gov.br/internacional/en/the-legislative-branch
  7. http://www12.senado.gov.br/internacional/en/the-legislative-branch
  8. Article 92 through 126, Constitution, 1988
  9. http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf
  10. Article 5, Constitution, 1988
  11. Article 5, Constitution, 1988
  12. http://www.bbc.com/portuguese/noticias/2012/05/120529_presos_onu_lk.shtml
  13. http://www.bbc.com/portuguese/noticias/2013/03/130328_presos_relatorio_onu_jf
  14. http://www.senado.gov.br/legislacao/const/con1988/con1988_05.10.1988/art_5_.shtm
  15. Article 5, section XXXIX, Constitution, 1988; Article 1, Criminal Code
  16. Article 5, section LIV, Constitution, 1988
  17. Article 5 section LXXXIII, Constitution, 1988
  18. Article 5, section XLVII, Constitution, 1988
  19. Article 24, Criminal Procedure Code
  20. Article 100, Criminal Code
  21. Article 301, Criminal Procedure Code
  22. Article 5, section LXI, Constitution of 1988
  23. Article 304, Criminal Procedure Code
  24. Article 304, Criminal Procedure Code
  25. Articles 311 through 316, Criminal Procedure Code
  26. Article 244, Criminal Procedure Code
  27. Article 249, Criminal Procedure Code
  28. Articles 185 through 196, Criminal Procedure Code
  29. Article 5, Constitution, 1988
  30. Article 261, Criminal Procedure Code
  31. Article 263, Criminal Procedure Code
  32. Article 396, Criminal Procedure Code
  33. Article 406, Criminal Procedure Code
  34. Article 396 A, Criminal Procedure Code
  35. Article 411, Criminal Procedure Code
  36. Article 413, Criminal Procedure Code
  37. Article 419, Criminal Procedure Code
  38. Article 476, Criminal Procedure Code
  39. Article 477, Criminal Procedure Code
  40. Article 479, Criminal Procedural Code
  41. Article 275 through 281, Criminal Procedure Code
  42. Article 593, Criminal Procedure Code

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