Brazil

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


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.

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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 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.[1] On January 12, 1994, Brazil passed the Complementary Law no. 80, which mandated the establishment of public legal assistance offices in every state.[2]

       [1] Article 5, LV, LXXIV and LIV of the Brazilian Constitution.       [2] http://www.planalto.gov.br/ccivil_03/Leis/LCP/Lcp80.htm.

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[1] and the judge must assign a counsel to the defendant unless the defendant has clearance to defend himself[2]. 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[3].

       [1] Article 261 of the Brazilian Code of Criminal Procedure.       [2] Article 263 of the Brazilian Code of Criminal Procedure.       [3] Article 186 of the Brazilian Code of Criminal Procedure.    

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.[1] If there is more than one defendant, the Code of Criminal Procedure states that they must be questioned separately.[2] 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.

       [1] Article 187 of the Brazilian Code of Criminal Procedure.       [2] Article 191 of the Brazilian Code of Criminal Procedure.

References

  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.
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