Brazil

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ADDITIONAL RESOURCES Constitution of Brazil LEGAL TRAINING RESOURCE CENTER eLearning Courses for Criminal Defense lawyers

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. </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 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. </ref>(http://www.ebc.com.br/noticias/politica/2013/10/em-25-anos-constituicao-cidada-foi-modificada-80-vezes).

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.

Type of System

Brazil is a federal republic that operates under the civil law system. Its laws are mostly based on statutes and codes enacted by the federal legislature, states, and municipalities. The Brazilian Constitution (Constituição da República Federativa do Brasil – C.F.) established 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; the Labour Justice; the Electoral Justice; the Military Justice; and the States Justice . Administrative, financial and functional control of the courts is given to the National Council of Justice.

Sources of Defendant's Rights

Article 5 of the Brazilian Constitution ensures the right to a full defence and the right to counsel (‘litigants in judicial or administrative processes, as well as defendants in general, are assured access to the adversarial system and an ample defence, with the means and resources inherent in it’). The State will provide legal assistance if an individual is too poor to afford it (the "State shall provide full and free-of-charge legal assistance to all who prove they do not have sufficient resources"). It also guarantees the right to due legal process. On January 12, 1994, Brazil passed the Complementary Law no. 80, which mandated the establishment of public legal assistance offices in every state.

Defendant's Rights

Pre-Trial

Article 5, LXXIV of the Constitution provides for free legal aid for those who cannot otherwise afford a lawyer. This principle is supported by article 32 of the Brazilian Code of Criminal Procedure, which states that a judge shall appoint legal assistance to a party that is unable to promote a private criminal complaint because of the party's inability to pay. Furthermore, no one shall be tried without legal assistance and the judge must assign a counsel to the defendant unless the defendant has clearance to defend himself . Under article 264 of the Brazilian Code of Criminal Procedure, lawyers nominated by a judge to represent a defendant must accept the case or be subject to a fine. Once the defendant has been properly informed of the charges, the judge must inform him of his right to remain silent and not to answer questions when asked. This silence, under the Brazilian Code of Criminal Procedure, may not be used against the defendant and may not be interpreted as a confession of the defendant's guilt .

Trial

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

References

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