Brazil
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Background
Brazil is a South American country and an emerging world power, having the largest economy in Latin America. From 1500 to 1822 Brazil was a Portuguese colony and since 1889 the country has been a republic. After the rise to power of populist leader Getúlio Vargas in 1930, Brazil experienced various periods of populist and military rule. The military dictatorship (1964-1985) resulted in large numbers of forced disappearances and other human rights abuses. To this day, many of these cases remain unsolved . In 1985, the military regime peacefully transferred power to a civilian government and in 1989 President Fernando Collor de Mello was elected in a mostly free and fair election. Since 1 January 2011, Brazil’s President has been Mrs Dilma Rousseff, a former member of President Lula’s government (2003-2010) and the country’s first female President. Despite Brazil’s abundant natural resources and burgeoning economy, problems such as stark economic inequalities, human rights violations and rising crime continue to plague the country’s development. In 2010, an estimated 28.8% of the population remained below the poverty line.[1] Brazil also grapples with the problem of illegal narcotics trafficking and the in-country consumption of drugs (mainly cocaine) is increasing. Furthermore, there is significant drug-related violence and weapons smuggling as Brazil is an important market for Colombian, Bolivian, and Peruvian cocaine.
[1] IPEA (Instituto de Pesquisa Econômica Aplicada), Comunicados do Ipea, n° 58 : Dimensão, evolução e projeção por região e por estado no Brasil, 13 de julho de 2010.
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.[1] 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[2]. Administrative, financial and functional control of the courts is given to the National Council of Justice.[3]
[1] Article 2nd of the Brazilian Constitution. [2] Article 92 of the Brazilian Constitution. [3] Article 103-B of the Brazilian Constitution.
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. [1]
On January 12, 1994, Brazil passed the Complementary Law no. 80 which mandated the establishment of public defenders' offices in every state.[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
- ↑ http://www.v-brazil.com/government/laws/titleII.html
- ↑ "One in Five: The Crisis in Brazil's Prisons and Criminal Justice System," International Bar Association, available at www.ibanet.org
- ↑ http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm
- ↑ Articles 261 & 261, Chapter III, Title VIII, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7
- ↑ Article 186, Title II, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7
- ↑ http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm
- ↑ Article 185, Title II, http://www3.dataprev.gov.br/sislex/paginas/18/1941/3689.htm#L1_T7
- ↑ Article 191, Title II, LINK
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