OAB disputes Rio vandalism committee’s legitimacy

The protests in Brazil have created a volatile landscape and a number of different crimes are on the rise through the country. This is the biggest issue in Brazil since the political unrest that stirred from the resignation of President Fernando Collor in 1992.

As with any large scale social demonstration, one of those incidents is the level of vandalism in Rio. To help combat this, a new commission was proposed that would investigate these specific crimes, however, questions are being raised about its constitutionality.

The original version of the Act was revoked on July 22 and a new version was enacted on the grounds that its constitutionality was dubious. Now, members of the Brazilian Bar Association (OAB) hold that the new act is still unconstitutional.

According to Ronaldo Cramer, the vice-president of the OAB in Rio, only the Federal Government can set up a commission with investigative powers. On top of that, the Act is not in accordance with Article 5 of the Federal Constitution, based on the grounds that the commission has the ability to access data and personal information without judicial consent throughout the course of any investigation.

The State Government of Rio de Janeiro responded to the concerns. In a statement, a spokesman said it takes all the remarks by the OAB in the course of drafting the latest version of the Act. However, some jurists have expressed that the changes made are not enough to solve the issues and further action should be taken.

Attempt to halt new court creation injunction

There has been a debate among Brazilian law members about the establishment of four new federal regional courts in the country. The amendment that created this plan (73/2013) has been under much scrutiny and on July 17, an injunction was granted by Supreme Court president Justice Joaquim Barbosa to suspend the amendment. Now, Marcus Vinicius Furtado Coelho, President of the Brazilian Bar Association (OAB), has stated that the entity’s Federal Council is calling for the Supreme Court to not ratify it.

The injunction was granted as a lawsuit filed by the National Association of Federal Public Prosecutors on the grounds that it was unconstitutional. The main argument is that Congress is not allowed to interfere when it comes to proposing the establishment of new courts. According to article 96 of the Federal Constitution, the Judiciary branch is the only organization that can do so.

The Federal Association of Brazilian Judges have reported that the matters surrounding the decision to grant the original injunction was unusual. The president of the organization, Nino Toldo, released a statement and said that the unconstitutional claim was filed just hours before the injunction was granted. There is also little urgency to resolve the matter as any new court would not be established until December at the earliest.

The amendment had been in place for one month prior to the issue of unconstitutionality being raised and the OAB waited unto the last working-day of Congress when Justice Barbosa, who has been publicly demonstrated skepticism, was on duty.

The entire process has raised a number of questions but the outcome of this legislation is still in limbo as politicians, jurists and other legal entities continue to debate it.

Brazilian Civil Procedural Code Update 

The court process can be a long and drawn-out affair. However, there are organizations and legislation out there to try and speed up these proceedings. An example of this is currently happening in Brazil.

This week, an idea conceived in 2009 by a group of jurists headed by Supreme Court Justice Luiz Fux was approved by a special committee of the House of Representatives that was created to assess it. Now, a draft of the new Civil Procedural Code (CPC), which aims to expedite proceedings that are related to civil lawsuits, is in play. It will still need to be approved by both houses of Congress before becoming law.

This is not the only change to Brazilian law that has been discussed in recent months. However, this change has been met with more support from judges, lawyers and professors than its predecessors. 

Mario Gelli​, a lawyer for the firm Barbosa, Mussich and Aragão, said that the new legislation would encourage parties involved in a dispute to seek alternative ways to settle it—like conciliation and mediation—instead of appearing in front of the judge and moving to litigation.

The amendment also improves outdated language, like setting clear standards when stipulating attorneys’ fees in cases when the Treasury is convicted.

There is a little resistance as some Brazilian lawyers have advised that this is not going to alter the current substantially of legal disputes. Lawsuits could still take years to settle and improvements need to be made in the education of law students and the technology that is available to notary public.

Regardless, this is a good place to start when it comes to change and can help get a dialogue going to impact further improvements to the penal code.

In less than one month, sentences increase 1,566 percent in Brazilian courts

For more than a month, Brazilian citizens have been protesting government corruption and misspending as preparations for the 2014 World Cup and 2016 Summer Olympics are well underway. With the eyes of many on the country, large groups have peacefully and not so peacefully demonstrated against the government. This is going on as the country’s judicial system looks to improve its performance.

According to reports, the Court of Mato Grosso has dramatically improved its ability to close cases. Up through June 25 of this year, the court had only tried six cases of misconduct in 2013.  Since then 88 additional cases have been sentenced, which is an increase of 1,566 percent

This is part of a concentrated effort by the court to improve its standing when it comes to judgments in civil lawsuits and criminal cases against the public administration. In the 20 days since June 25, the Court of Mato Grosso jumped from 19th place to 13th percent, according to the National Council of Justice (CNJ). The target had been to improve just one notch to 18th.

So far this year, cases of corruption involving the Public Administration have increased 13.3 percent in the trials. Criminal cases increased 14.95 percent. They were also able to decrease the backlog of cases that were pending from previous years, from 3,038 down to 1,756.

The court was able to make this massive improvement by adding four more judges to the judicial unit. Cases that involved corruption were also prioritized. Crimes Involving Taxes and the Economy and Crime Against the Public Administration were considered to be decisive in increasing the number of sentences.

Appeal on Process Amendment

The Brazilian Senate has been debating a proposed amendment to the Constitution known as PEC 15. If it is approved, it would transform extraordinary and special appeals—traditionally those involving the federal supreme court—into rescissory actions, as well as, determine that the party filing the appeal proves the general repercussions of the constitutional issues in order for a proper analysis of admissibility takes place.

Now the Senate Committee on Constitution and Justice has approved a request to hold a public hearing about the amendment where citizens, lawyers, and politicians alike can comment and express any concerns.

According to reports, the hearing was proposed by Senator Francisco Dornelles, though it follows a request made by the Bar Association of Brazil (OAB). According to the president of the OAB Marcus Vinicius Furtado, this change may speed up the process of justice but it can not come at the expense of a guarantee of the right to legal defense. 

By holding a public hearing, the Brazilian Bar Association hopes to remove the urgency in analyzing PEC and allow those in charge to take the time to fully understand the proposal before voting on it.  

According to two executives from the OAB, president of the National Council of the Federal Legislation, Francisco Torres Esgaib, and the chairman of the Special Committee on Legislative Monitoring, Eduardo Pugliesi this issue deserves further attention from all involved. This could have far-reaching ramifications for the judicial system and is something all Brazilian lawyers should be aware of.