Difference between revisions of "Brazil"

From Criminal Defense Wiki
Jump to navigationJump to search
Line 22: Line 22:
  
 
Article 5 of the Brazilian Constitution ensures a right to a full defense and a right to counsel "litigants, in judicial or administrative processes, as well as defendants in general, are ensured of the adversary system and of full defense, with the means and resources inherent to it"). The State will provide counsel if an individual is too poor to afford it herself ("State shall provide full and free-of-charge legal assistance to all who prove insufficiency of funds"). It also guarantees the right to due process. <ref>http://www.v-brazil.com/government/laws/titleII.html</ref>
 
Article 5 of the Brazilian Constitution ensures a right to a full defense and a right to counsel "litigants, in judicial or administrative processes, as well as defendants in general, are ensured of the adversary system and of full defense, with the means and resources inherent to it"). The State will provide counsel if an individual is too poor to afford it herself ("State shall provide full and free-of-charge legal assistance to all who prove insufficiency of funds"). It also guarantees the right to due process. <ref>http://www.v-brazil.com/government/laws/titleII.html</ref>
 +
 +
==Defendant's Rights==
 +
 +
Pre-Trial
 +
 +
Article 5 of the Constitution provides for free legal aid for those who cannot otherwise afford a lawyer. This principle is supported by article 32, under Title II of the Brazilian Code of Criminal Procedure, which states that a judge may appoint counsel to a party that is unable to do so because of the party's impoverished financial situation.<ref>http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm</ref> Furthermore, no one shall be tried without counsel, and the judge must assign a counsel to the defendant, unless the defendant is has clearance to act pro se.<ref>Articles 261 & 261, Chapter III, Title VIII, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7</ref> Under article 264, Chapter III, Title VIII, lawyers must take the representation in assigned cases, or be subject to a fine of one hundred to five hundred thousand reis. Once the accused has been properly informed of the indictment, the judge must inform him of his right to remain silent and not to answer questions when asked. This silence, under the Code of Criminal Procedure, may not be used against the defendant and may not be interpreted as a confession of the defendant's guilt.<ref>Article 186, Title II, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7</ref>
 +
 +
Trial
 +
 +
Article 185 also allows the judge to question the accused via a video conferencing or other technology system if the accused has significant difficulties in coming court. This method may also be used in a situation in which there is a strong risk to public safety in transporting the accused.<ref>http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm</ref>  The Code of Criminal Procedure states that each interrogation of the accused shall consist of two parts: the accused's personal information and the facts of the specific case.<ref>Article 185, Title II, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7</ref> If there is more than one defendant, the Code of Criminal Procedure provides that they must be questioned separately.<ref>Article 191, Title II, LINK</ref> If the accused does not speak the national language (Portuguese), the court will provide an interpreter under article 193.
 +
 
----
 
----
 
See [[Criminal Justice Systems Around the World]]
 
See [[Criminal Justice Systems Around the World]]
Line 27: Line 38:
  
 
*June 2010 Prison Population: 494,237
 
*June 2010 Prison Population: 494,237
 +
 
==Notes==
 
==Notes==
 
<references/>
 
<references/>

Revision as of 23:34, 4 March 2011

ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


Background

Brazil is a South American country, which is currently the largest economy in Latin America and an emerging world power. From 1500 to 1822, Brazil was a Portuguese colony, and since 1889 the country has been a republic. After the rise of populist leader Getulio Vargas to power in 1930, Brazil underwent decades of populist and military rule. The military dictatorship resulted in large numbers of forced disappearances and other human rights abuses, many cases of which remain unresolved to this day. In 1985, the military regime peacefully transferred power to a civilian government – and in 2006, President Lula da Silva was reelected in a mostly free and fair election.

Despite Brazil’s abundant natural resources and burgeoning economy, problems such as stark economic inequality, human rights violations, and rising crime continue to plague the country’s development. As of 2005, about 31% of the population remains below the poverty line. Brazil also grapples with the problem of illegal narcotics trafficking, and the country is the second-largest consumer of cocaine in the world. There is significant drug-related violence and weapons smuggling, and Brazil is an important market for Colombian, Bolivian, and Peruvian cocaine.

Type of System

Brazil is a federative republic that operates under the civil law system. Its laws are based mostly on statues and codes enacted by the federal legislature, states, and municipalities. The Brazilian Constitution (Constituição da República Federativa do Brasil – C.F.) establishes three branches of government: judicial, legislative, and executive. The judicial branch includes the following courts: the Federal Supreme Court (the highest court); the Superior Tribunal of Justice; the Federal Justice; Labor Justice; Electoral Justice; Military Justice; and State Justice. Judicial control of the courts is given to the National Council of Justice.[1]

Sources of Defendant's Rights

Article 5 of the Brazilian Constitution ensures a right to a full defense and a right to counsel "litigants, in judicial or administrative processes, as well as defendants in general, are ensured of the adversary system and of full defense, with the means and resources inherent to it"). The State will provide counsel if an individual is too poor to afford it herself ("State shall provide full and free-of-charge legal assistance to all who prove insufficiency of funds"). It also guarantees the right to due process. [2]

Defendant's Rights

Pre-Trial

Article 5 of the Constitution provides for free legal aid for those who cannot otherwise afford a lawyer. This principle is supported by article 32, under Title II of the Brazilian Code of Criminal Procedure, which states that a judge may appoint counsel to a party that is unable to do so because of the party's impoverished financial situation.[3] Furthermore, no one shall be tried without counsel, and the judge must assign a counsel to the defendant, unless the defendant is has clearance to act pro se.[4] Under article 264, Chapter III, Title VIII, lawyers must take the representation in assigned cases, or be subject to a fine of one hundred to five hundred thousand reis. Once the accused has been properly informed of the indictment, the judge must inform him of his right to remain silent and not to answer questions when asked. This silence, under the Code of Criminal Procedure, may not be used against the defendant and may not be interpreted as a confession of the defendant's guilt.[5]

Trial

Article 185 also allows the judge to question the accused via a video conferencing or other technology system if the accused has significant difficulties in coming court. This method may also be used in a situation in which there is a strong risk to public safety in transporting the accused.[6] The Code of Criminal Procedure states that each interrogation of the accused shall consist of two parts: the accused's personal information and the facts of the specific case.[7] If there is more than one defendant, the Code of Criminal Procedure provides that they must be questioned separately.[8] If the accused does not speak the national language (Portuguese), the court will provide an interpreter under article 193.


See Criminal Justice Systems Around the World

QUICK FACTS

  • June 2010 Prison Population: 494,237

Notes

Globe3.png English  • português