Brazil

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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. .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.

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. 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). 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. 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.

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

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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