BRAZIL
INTRODUCTION
1. Overview:
· Legal background: Brazil has a civil law system. The main source of law is written law. Written law can be produced by the legislative power (legislation) or by the executive (decrees, regulations, etc.). Nonetheless, legislation is hierarchically superior and, consequently, executive laws cannot alter the latter’s content, but only provide for more detail in its application. Case law is increasingly becoming a source of law, even though only informally and under the label of legal interpretation. There is, however, three instances in which is case law is binding: 1) when the Supreme Federal Court (the highest Federal Court) adopts specific binding provisions in the course of a case brought before it (Súmula vinculante), under the requisite procedure; 2) when it decides that a certain provision is unconstitutional in the course of a Direct Constitutionality Action; and 3) when it designs a temporary provision in the course of an action called “Injunction Mandate”, the purpose of which is to recognize and remedy a fundamental legal omission. Finally, custom can only be a source of law if it is in accordance with legislation. In terms of procedural law, Brazil adopts a hybrid system, combining both the accusatorial and inquisitorial approaches: the parties are responsible for initiating and moving proceedings forward, but the Judge also has important powers on his own initiative (he may deny or require evidence, ask questions to witnesses, take some public order decisions, etc.). The Judge is the trier of facts. In Brazil, juries are only used in criminal proceedings involving intentional crimes against life (murder, abortion, assistance to suicide and infanticide).
· Definition of victim: In criminal proceedings, the definition of victim coincides with the one given to the same term in substantive criminal law: victim is the person (natural or moral) or abstract entity (e.g.: society, customs) which is injured by a criminal conduct, pursuant to the definition of the crime. In other words, it is the subject who is entitled to the right or juridical good that is affected by a criminal action[1]. In civil claims, the procedural definition of a claimant may or may not coincide with the concept of victim in substantive civil law (person injured by an illicit act or tort). For instance, in a divorce suit, the claimant may be either the husband or the wife, without there necessarily being a victim of any illicit act whatsoever.
· Formalities of lodging a criminal complaint in Brazil: First, a criminal complaint is not required to initiate a criminal investigation in relation to crimes subject to public prosecution (which is the case of most crimes): the police may initiate an investigation 1) on its own initiative (Art. 5, I, CPP) (following any information or lead whatsoever, including anonymous information – Art. 5º, § 3º, CPP), 2) pursuant to a criminal complaint lodged by the AV (Art. 5º, II, CPP) or 3) pursuant to a requirement by the competent judicial authority or the Prosecutor (Art. 5º, II, CPP). Moreover, any person can provoke the initiative of the Prosecutor to require an investigation by offering him or her written information about the relevant facts (Art. 27 CPP). It is only in the other 2 types of criminal prosecution (private prosecution and public prosecution subject to victim representation), which only involve certain types of crimes (generally affecting the intimacy or privacy of the victim, such as rape and defamation), that a complaint by the victim is required (Arts. 5º, §§ 4º and 5º, CPP). Second, there are no formal requirements for the AV to lodge a complaint: it is preferable that it contains all the relevant information about the facts, the accused and witnesses (Art. 5º, § 1º, CPP). Nonetheless, it may well be lodged orally (in which case it is the police authority that writes it down), in a formal document and even online (on the website of the competent police authority). Moreover, there are no fees to be paid. Third, for those types of prosecution in which a complaint by the AV is required (private prosecution and public prosecution subject to victim representation), the complaint must come from the AV, their legal representative or their heirs (spouse, parents, children or siblings), in case of death or disappearance (Art. 24, § 1º, and 31 CPP).
· Private prosecution: Private prosecution is possible in Brazil. It is possible in two situations: 1) in relation to crimes that can only be prosecuted under this type of suit (e.g.: crimes against honour – defamation, calumny and moral injury –, invasion of property without violence, fraud to execution, damage of property) (Art. 100, § 2º, CP); or 2) as a substitute to public prosecution, when the Prosecutor in charge fails to offer the indictment by the legal deadline (Art. 100, § 3º, CP and Art. 29 CPP). In both cases, private prosecution may only be initiated by the AV him or herself, by their legal representative or, in case of death or disappearance, by their heirs (spouse, parents, children or siblings) (Art. 24, § 1º, and 31 CPP). The costs (judicial taxes and legal counselling) are to be borne in principle by the claimant. Nonetheless, in case of poverty, and if the AV him or herself has not spontaneously sought free legal counselling (which is generally available to everyone – Federal Law nº 1.060 and Complementary Law nº 132), the Judge may appoint a private counsel to represent the AV in offering the claim and waive any other judicial costs (Art. 32, caput, CPP). Poverty may be proved either by a declaration of the AV him or herself or by a declaration of the competent police authority (Art. 32, §§ 1º and 2º CPP). In relation to AVs which are minors or mentally ill, and which lack a legal representative or whose legal representative’s right collides with their own, the Judge may appoint a special curator to initiate the private prosecution (Art. 33, CPP). As to the relationship between the AV and the Prosecutor in the first type of private prosecution (purely private prosecution), even though the claim is offered by the AV, the Prosecutor may amend the charges, request new evidence and participate in the prosecution with all of his/her regular powers (Arts. 45-47 CPP). Similarly, in the second scenario, namely, in an originally public prosecution overtaken by the AV, the Prosecutor may exercise all of his rights, if he/she so wishes. Thus, the Prosecutor may: amend it, reject it, offer a substitute indictment, participate in all phases of the proceedings, provide evidence, and, at any time, retake the main accusatorial position, in the case of negligence of the accused (Art. 29 CPP). In addition to the two aforementioned types of prosecution (public and private), there is a third one: public prosecution subject to the representation of the victim. This is a type of public prosecution, that is, it is initiated and conducted by the Prosecutor, which has the main role of accusation, but it can only be initiated once the victim has expressed its will to proceed with the prosecution of the accused. The expression of this will is called “victim representation” and it need not be a formal or separate declaration: the mere oral complaint initially lodged is sufficient. The AV may withdraw this expression of will, but only until such time as the indictment is officially offered by the Prosecutor. In relation to international crimes, Brazil has ratified and transposed to domestic law the most important treaties dealing with core international crimes, namely, the 1949 Geneva Conventions and its two Additional Protocols (Decree nº 849), the 1949 Genocide Convention (Decree nº 30.822) and the Rome Statute of the International Criminal Court (Decree nº 4.388). The same is true for the 1984 Convention Against Torture (Decree nº 40). Nonetheless, the content of these conventions has not been altered in Brazilian domestic law. Since in those treaties there is no specific provision dealing with the type of prosecution of the relevant crimes, they follow the regular approach: in the absence of specification, crimes are prosecuted through public prosecution, in which case private prosecution may only occur if the Prosecutor has failed to offer the indictment by the deadline. In relation to the tribunals within Brazil which are competent to prosecute international crimes, the ordinary rules on territorial jurisdiction are in principle applicable. Nonetheless, upon request of the Superior Court of Justice (the second highest federal court in Brazil), international crimes may be prosecuted before federal rather than state courts if the international responsibility of Brazil is at stake (Art. 109, § 5º Federal Constitution).
· List of abbreviations:
o CPP: Código de Processo Penal – Code of Criminal Procedure
o CP: Código Penal – Criminal Code
o CC: Código Civil – Civil Code
o ECA: Estatuto da Criança e do Adolescente – Statute of the Child and Adolescent
QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS?
2. Duty to investigate: In Brazil, there is a duty to investigate all the information in possession of the police after its precedence is verified. This includes the information contained in a complaint filled by an AV (Art. 5º, II and § 3º, CPP). This duty can be enforced by way of disciplinary or judicial remedies in case of refusal to investigate. For the remedies available to the AV, see n. 3 below. In addition to the AV, the Chief of the relevant police unit may on its own initiative give rise to an internal disciplinary proceeding against the police officer in breach of his/her duty to investigate. Moreover, any interested person is entitled to make administrative/disciplinary complaints against any police organ (Arts. 3º, 5º and 6º Federal Law nº 9.784).
3. Challenge against decision not to investigate: In case of refusal to investigate a complaint, the AV may appeal to the relevant Chief of Police (Art. 5º, § 2º, CPP). But the AV can only resort to this type of administrative appeal if he/she has, in the first place, lodged a complaint of any kind (even if a complaint is not required to give rise to a criminal investigation, this is one of the advantages of making one). If this appeal fails or even if the AV has not resorted to it, there is always a possibility of filing a general administrative claim against the act of the Chief of Police (or the police officer) (Arts. 3º, 5º and 6º Federal Law nº 9.784), or of filing a judicial civil claim against his/her actions, if one considers them to be arbitrary or in violation of any law. Both of these remedies are generally available for challenging administrative acts. For the general administrative claim, the only requirement is that the claimant be an interested person (here there is no requirement of having initially lodged a complaint) (Art. 6º Federal Law nº 9.784). For the judicial civil claim (Mandado de Segurança or, in English, Mandamus – Federal Law nº 12.016), the requirements are the same as for any other civil claim: the claimant has to be an interested party and must be represented by a qualified attorney.
4. Rights of AVs after lodging a complaint: After lodging a complaint, the AV is entitled to legal counsel and to free legal aid, which are rights generally available to everyone at all times (Federal Law nº 1.060 and Complementary Law nº 132). The access of the AV to the casefile during the investigation is to be determined by the competent police authority, in light of the circumstances of each case, taking into account the interests of society and the need for confidentiality (Art. 20 CPP). There is no specific provision regarding rights to be informed after lodging a complaint and during the investigative phase. The absence of rights to information and access to casefile during the investigation is due to the adoption of the inquisitorial approach at this phase. The rights of AV during the prosecution phase will be further explored below (see n. 10 and 15).
a) Are there provisions for support services (including counselling, use of interpreter, interim compensation and other measures) at the time of complaint?
5. There are no general provisions for support services in relation to all types of AV at the time of the complaint and during the investigation phase (for the support services granted during prosecution, see bellow n. 10). Nonetheless, in relation to compensation, the AV or the Prosecutor may require or the Judge on its own initiative may determine, at any phase of the investigation or of the prosecution, the temporary seizure of any assets (real state, money or ay other good) obtained as a product of the crime (Arts. 125-127 CPP). Moreover, the AV may also require the freezing of the accused’s personal assets (real state, money and any other good), but only once the indictment is offered and the prosecution is officially started (Arts. 134 and 137 CPP). In both cases, sufficient proof of the crime and authorship is required (Art. 126 and 134 CPP). The purpose of both types of measures is to guarantee the payment of compensation/reparation to the AV and of other procedural expenses (Arts. 135 and 140 CPP). However, while they may be requested at the investigative phase (in the case of temporary seizure) or at any phase of the judicial proceedings, they may only be enforced once the accused has been definitely convicted (Arts. 125-144-A CPP). In spite of the absence of general support provisions at the time of the complaint and during the period of investigation, there are three special categories of AVs that are entitled to a wide range of support services at any time of the investigation or prosecution. First, AVs exposed to threat or coercion and which agree to collaborate with the proceedings, together with their close family, are entitled to a non-exhaustive list of support services to be determined on a case-by-case basis by the competent administrative authority, including social, medical psychological support, monthly financial support for individual and family expenses (if the AV is unable to work), support in the accomplishment of the AV’s civil obligations, and suspension of work activities, without prejudice of salary in the case of public servants (Art. 7 Federal Law nº 9.807). Second, children and young AVs (up to 18 years old) are also entitled to a non-exhaustive list of support services to be determined on a case-by-case basis by the competent administrative authority, including temporary social support, medical, psychiatric or psychological treatment, institutional fostering, inclusion in surrogate family program, family counselling, mandatory attendance to school (Art. 101 ECA), and provisional financial support in case of crimes committed by parents or responsible persons (Art. 130 ECA). Third, women who are AVs of any type of domestic violence (including physical and moral) are entitled to a non-exhaustive list of support services to be determined on a case-by-case basis by the competent Judge, including provisional financial support to be provided by the accused, restitution of assets irregularly taken by the accused, interim compensation for damages, inclusion in community support programs of social and psychological nature, suspension of the right of the accused to close contracts and negotiations involving common assets (Arts. 23-24 of Federal Law nº 11.340). Finally, once the indictment is offered and the prosecution officially starts, all types of AVs are entitled to multidisciplinary support services, including of social, psychological, health and legal nature, to be determined by the Judge if he/she believes them to be necessary (Art. 201, § 5º, CPP).