Difference between revisions of "Brazil"

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'''Pre-trial detention'''
 
'''Pre-trial detention'''
  
The CPC provides the deadline of 24 hours for the magistrate to receive the documents of the flagrant delicto arrest. <ref> Article 304, Criminal Procedure Code </ref> Once the magistrate receives the documents, the judge can: (1) dismiss the arrest if it was done illegally; (2) convert the flagrant delicto arrest into preventive arrest; or (3) grant bail, with or without stipulating a monetary amount for it.  
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The CPC provides the deadline of 24 hours for the magistrate to receive the documents of the flagrant delicto arrest. <ref> Article 304, Criminal Procedure Code </ref> Once the magistrate receives the documents, the judge can: (1) dismiss the arrest if it was done illegally; (2) convert the flagrant delicto arrest into preventive arrest; or (3) grant bail, with or without stipulating a monetary amount for it.  
  
 
In addition, the CPC stipulate the grounds in which an individual can be arrested as a preventive measure. <ref> Articles 311 through 316, Criminal Procedure Code </ref> The judge can order a preventive detention of the individual, or the prosecutor can request such detention once demonstrated the importance for such request. The preventive detention may be decreed to guarantee the public and economic order, and/or to ensure the application of the criminal law when there is sufficient evidence that the person has committed the crime. Also, the preventive detention may also be imposed in case of breach of any obligation or precautionary measures imposed on the individual by the magistrate.  
 
In addition, the CPC stipulate the grounds in which an individual can be arrested as a preventive measure. <ref> Articles 311 through 316, Criminal Procedure Code </ref> The judge can order a preventive detention of the individual, or the prosecutor can request such detention once demonstrated the importance for such request. The preventive detention may be decreed to guarantee the public and economic order, and/or to ensure the application of the criminal law when there is sufficient evidence that the person has committed the crime. Also, the preventive detention may also be imposed in case of breach of any obligation or precautionary measures imposed on the individual by the magistrate.  

Revision as of 14:25, 27 July 2015

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


INTRODUCTION

Background

Brazil is a country consisted of 26 states and one federal district, named Brasilia. The country’s form of government adopted by the 1988 constitution is a federal republic. 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.

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 to the country. Ever since its independence, Brazil has had eight constitutions, been the last one adopted in October 8, 1988. The constitution of 1988 was adopted after 21 years of military control of the government. The latest constitution was revised in 1993 and received six alterations. In addition, as of 2013, the 1988 constitution 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 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 – Article 76-91 of the constitution

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 president is responsible for executing the laws created by the legislative branch. He/She can also 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 interim measure and make a decision of whether to become a law. If the National Congress does not reach a decision in regards to the interim measure created, the deadline will be extended for another 60 days. [3] After this deadline, if the National Congress has not reached a decision, the interim measure becomes ineffective. The president can also propose to the National Congress amendments to the constitution.

Legislative branch – article 44-75

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). [4] 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 parliamentarians. [5] 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 the three representing the Federal District. The election for senators is in a one-third and 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. The president of the Senate is the third in line to replace the president.

Judicial Branch – Article 92-126

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 and state judges of the states and the Federal District.

The Supreme Court 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 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. [6]

The Legal System in Brazil

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

Article 5 of the Constitution recognizes that all citizens are equal before the law, without distinction of any kind. This article in the constitution guarantees to Brazilians and foreigners residing in the country the inviolable right to life, liberty, equality, safety, and property. Article 5 also ensures legal defense for individuals facing criminal charges.

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. [7] This problematic is a major focus of the United Nations criticism on the country’s disrespect for human rights. [8]

Sources of Defendant's Rights

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

“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.”[9]

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.

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 that crime is, nor punishment without prior legal sanction. [10]

This principle safeguards four fundamental ideas: (1) forbids the retroactivity of criminal law; (2) forbids the creation of crimes through customs; (3) prohibits the use of analogy to create crimes, support or aggravate penalties; and (4) prohibits vague and indeterminate sentences.

Retroactivity of Criminal Law

The only exception to the non-retroactivity of the law it 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.

Determination

The principle of determination stipulates that the law formulated must be sufficiently clear and precise in its legal content type and establishment of sanctions to guarantee legal certainty. The principle of determination is imposed on the legislator when drafting the laws to attempt 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 immediate and primary scope of criminal law and its essential interest in the protection of the individual and the community.

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 and that it 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 as the last resort.

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 when a law that removed a certain type of crime may retroact to benefit the accused, even if the accused has been sentenced.

Fair Trial Rights

Due Process

According to article 5 in section LIV of 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 fair trial to the accused, such as the right to counsel, publicity, and of the free and rational persuasion of the judge. [11]

Speedy Trial

The right of the accused to have a speedy trial is a constitutional guarantee. [12] This constitutional guarantee assures a reasonable duration of the action and the means to guarantee the speed of the criminal prosecution. However, there is an omission from the legislator about what would be a reasonable time span for the continuation of the action.

Presumption of Innocence

The presumption of innocence principle includes three fundamental meanings:

a) Guilt as an element of the crime theory. b) Guilt as a proportional principle to measure the sentence. c) Presumption of innocence until proven guilty.

Rehabilitation of the Detainee

The purpose of the detention of a wrongdoer is rehabilitation to society rather than punishing. This humanitarian approach is intended to assure the application of a just sentence and to promote the rehabilitation of the detainee back to society.

Capital Punishment

The maximum imprisonment time in Brazil is 30 years. A judge can sentence a wrongdoer to over 30 years sentence, but the individual will remain imprisoned for 30 years maximum. But since the imprisonment time can be decreased for good behavior, individuals who commit hate crimes may receive sentences greater than 30 years imprisonment to avoid the individual to be set free too early. This measure is an attempt to intimidate people of committing crimes based on the assumption that the incarceration period can be too little.

As provided in the Constitution of 1988, there is no permission for the implementation of the death penalty, with the only exception during war times. According to the constitution, there will be no death penalty, except in cases of declared war. [13] 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 complaint is the start of a public prosecution. Criminal proceedings in Brazil can be public or private depending of whom is filing the complaint – the prosecution or the victim and/or his/her representative. [14] In other words, the victim and/or his/her representative can initiate a private criminal action as well. According the Criminal Code (CC), there are some specific types of crimes in which the complaint is exclusively made by public ministration. [15] However, there is a legal deadline for the submission of the complaint, and if the public ministration fails to do so, the victim and/or his/her representative can file the complaint initiating a private criminal action.

Arrest

The CPC establishes that an ordinary citizen has the power to arrest a suspect of a crime found in flagrant delicto or fleeing from the crime scene. [16] The ordinary citizen must have physical power over the suspect and explain to the suspect that he/she is being arrested. They must call the police and wait for the police to arrive. The ordinary citizen who arrested the suspect becomes a witness and must report his/her own judgment of what he/she saw.

The Constitution establishes the exceptions to a warrantless arrest on the grounds of flagrant delicto or for military crimes. [17] After a warrantless arrest, the CPC establishes that the suspect must be immediately interrogated. [18]

Pre-trial detention

The CPC provides the deadline of 24 hours for the magistrate to receive the documents of the flagrant delicto arrest. [19] Once the magistrate receives the documents, the judge can: (1) dismiss the arrest if it was done illegally; (2) convert the flagrant delicto arrest into preventive arrest; or (3) grant bail, with or without stipulating a monetary amount for it.

In addition, the CPC stipulate the grounds in which an individual can be arrested as a preventive measure. [20] The judge can order a preventive detention of the individual, or the prosecutor can request such detention once demonstrated the importance for such request. The preventive detention may be decreed to guarantee the public and economic order, and/or to ensure the application of the criminal law when there is sufficient evidence that the person has committed the crime. Also, the preventive detention may also be imposed in case of breach of any obligation or precautionary measures imposed on the individual by the magistrate.

The preventive detention may be admitted without motive on any of the following grounds: (1) intentional crimes punishable with sentence of deprivation of freedom superior to 4 years; (2) if the individual has been convicted of another felony; (3) if the crime involves domestic violence against women, children, teenager, elderly, handicap in order to guarantee the urgency of the execution of the protective measures.

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, or objects or papers that constitute corpus delicti, or when the measure is determined in the course of a home search. [21] Nevertheless, the search on women, independently of a warrant or not, must be done by another woman if it does not cause delay or loss of diligence. [22]

Interrogation

The interrogation is one of the most important parts of criminal procedure. [23] First, the accused has the right to meet with his counselor before any interrogation. The privacy of the meeting is guaranteed even if the meeting is made by phone. This right is also guaranteed by the Constitution. [24]

Before the trial begins, the judge must inform the accused about his/her right to remain in silence and to not answer to questions he/she wishes not to answer. The right to remain in silence must not cause any prejudice to the accused, nor be considered a confession.

Anytime the accused appears before a judicial authority in the course of the criminal proceedings must be interrogated in the presence of his/her counsel. The room in which 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 guaranteed. Under some circumstances however, the judge may opt to interrogate the suspect through videoconference.

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 been convicted of a crime before. The second part of the interrogation is reserved for questions related to the crime that is been investigated.

Right to Counsel

Article 261 of CCP states that “no accused, even if absent or fugitive will be prosecuted or tried without a counsel.” <Article 261, Criminal Procedure Code </ref> If the person 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 to the nominated counsel. [25] If shown that the accused is poor, the judge may nominate a public defender even if it is a private criminal action.

Initial 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 representative. If the judge accepts the complaint, there is a 10 days deadline to order the summons requiring the accused to answer the charge(s). [26]

In the accused’s answer, he/she can provide any documents and justification that he/she believes will help on his/her defense. In addition, the accused can point his/her witnesses. However, each party can appoint a maximum of 8 witnesses, including expert witnesses. [27] In the answer, 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. [28] Based on the written defense, the judge can summarily acquit the defendant. If not, a hearing is set.

Preliminary hearing

According to article 411, 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. [29]

After hearing the submissions and considerations, the court will determine whether there are grounds to presume that the accused is guilty of the charges. [30]. The court may dismiss the case or shall bring the case to be heard in front of a jury trial. [31]

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. [32] 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. [33] 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 trial, there won’t be admitted any evidence that hasn’t been attached to the files with at least three working days in advance. This requirement is in place to guarantee that the opposing party has knowledge of the addition of new evidences, and can be prepared to it. [34]

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. [35] Translators are considered expert witnesses as well.

Appeal

An appeal action is an effective procedural instrument that guarantees the reanalysis of the criminal action. 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 to decisions made against decisions 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 days starting from the day both parties have knowledge of the final sentence. [36]


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. http://www12.senado.leg.br/noticias/entenda-o-assunto/medida-provisoria-1
  4. http://www12.senado.gov.br/internacional/en/the-legislative-branch
  5. http://www12.senado.gov.br/internacional/en/the-legislative-branch
  6. http://www.oab.org.br/editora/revista/users/revista/1235068896174218181901.pdf
  7. http://www.bbc.com/portuguese/noticias/2012/05/120529_presos_onu_lk.shtml
  8. http://www.bbc.com/portuguese/noticias/2013/03/130328_presos_relatorio_onu_jf
  9. http://www.senado.gov.br/legislacao/const/con1988/con1988_05.10.1988/art_5_.shtm
  10. Federal Constitution, article 5, section XXXIX and the Criminal Code, article 1
  11. Article 5, section LIV, Constitution of 1988
  12. Article 5 section LXXXIII
  13. article 5, section XLVII of the Constitution
  14. Article 24 of the Criminal Procedure Code
  15. Article 100, Criminal Code
  16. Article 301, Criminal Procedure Code
  17. Article 5, section LXI, Constitution of 1988
  18. article 304, Criminal Procedure Code
  19. Article 304, Criminal Procedure Code
  20. Articles 311 through 316, Criminal Procedure Code
  21. Article 244, Criminal Procedure Code
  22. Article 249, Criminal Procedure Code
  23. Articles 185 through 196, Criminal Procedure Code
  24. article 5
  25. Article 263, Criminal Procedure Code
  26. Article 396, Criminal Procedure Code
  27. Article 406, Criminal Procedure Code
  28. Article 396 A, Criminal Procedure Code
  29. Article 411, Criminal Procedure Code
  30. Article 413, Criminal Procedure Code
  31. Article 419, Criminal Procedure Code
  32. Article 476, Criminal Procedure Code
  33. Article 477, Criminal Procedure Code
  34. Article 479
  35. Article 275 through 281, Criminal Procedure Code
  36. Article 593, Criminal Procedure Code


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