Comparative law and justice/Brazil

Subject classification: this is a comparative law and justice resource.

Part of the Comparative law and justice Wikiversity Project

Basic Information

Brazil is located in the eastern part of South America, bordering the Atlantic Ocean.. It is the largest country in South America and shares common boundaries with every country in South America except for Chile and Ecuador. The total landmass in Brazil is 3,266,199.16 sq miles Brazil is mostly flat to rolling lowlands in the north end, however, it does have some plains, hills, mountains and narrow coastal belt. The climate of Brazil is mostly tropical but temperate towards the south end of Brazil. The total population is 198,739,269. 26.7% of Brazilians are 0 to 14 years old; 66.8% are 15 to 64 years; 6.4% are 65 years and over. The median age for males in Brazil is 27.8 years old and females is 29.3 years old. There are many different ethnic groups; 53% are Whites , 22% are Mulatto, 12% are Mestizo, 11% are Black, 1% are Japanese, and 1% are Others such as Arab and Amerindians The religion groups are Roman Catholic (88%), Protestant (6%), Afro-American Spiritual (l2%), Spiritist (2%), Atheist (1%), and Others (1%). The most spoken language is Portuguese with 97%; Amerindian language with 1% and other languages. The official language is Portuguese.

Economic Development, Health, and Education

Brazil is a politically stable country. Brazil's Gross Domestic Product (GDP) is 1.5 trillion. It is ranked the 15th biggest in the world. It is the second largest economy in the Americas after the United States. The GDP per capita in Brazil is 7,600. The key industries are textiles, shoes, chemicals, cement, agriculture, motor vehicles and parts. The key exports are aircraft, coffee, vehicles, soybean, iron ore, orange juice, steel, textiles, footwear and electrical equipment. Brazil's partners for exports are the US, China, Argentina, Netherlands, and Germany. Brazil's key imports are machinery, electrical and transport equipment, chemical products, oil, automotive parts, and electronics. Their partners for imports are the US, China, Argentina and Germany.

Brazil's infant mortality rate is 19.88 per 1,000 live births which places Brazil below 90 other countries. The life expectancy for males in Brazil is 70 years old while for females it is 77 years, old putting Brazil below 91 other countries. The literacy rate for both men and female is 88.6%. The Brazilian Educational System is divided up into three levels: fundamental, intermediate, and higher. The school year in Brazil is 180 days. Fundamental School is for ages 7 to 14 which is from 1st grade to 8th grade. To go ahead to an intermediate school, the fundamental school must be completed. Intermediate schooling takes up to 2,200 hours of school work. The next level of schooling is the higher school. Higher schooling is taught at universities..

Brief History

Brazil history can be divided up in five periods. The first period is from 1500 to 1550. This period was the logging of Brazil wood. The Brazil wood was a red dye that was important for the textile industry. This is how Brazil received its name known as "pau brasil." The second period was the sugarcane period from 1530 to 1650. Slaves were the ones that provided the labor for the fields and mills. The sugarcane cultivation went from Sao Vincente in the South to Pernambuco in the Northeast. Sugar began the development of a capitalist system. . The third period started from 1690 to 1750 which was removing of gold and diamonds. The colonial center shifted away from the Northeast coast into the interior (Minas Gerais). After the gold production went downward, the fourth period began. The fourth period was the coffee cultivation. It lasted until the late 1920's. It went from the mountains behind Rio de Janeiro, to the Rio Pariba Valley, to the west across Sao Paulo State and out into Parana. Coffee was Brazil's best producer . The fifth period started in the 1930's to the 1990's. This period was the triangle of Sao Paulo-Rio de Janerio-Belo Horizonte. This led to the import-substitution industrialization which attracted rural migrants throughout the country.

Brazil was discovered in 1500 by a Portuguese man named Pedro Alvaros Cabral. The colony was ruled by Portugal until 1808 . Brazil received its independence in 1822 by Dom Pedro I. Brazil's government was a monarchical system until 1888 when they abolished slavery. The capital of Brazil was Salvador.. Salvador's early pre-eminence within the then colony of Brazil was due to the rich agricultural hinterland which was highly suitable for growing sugar-cane. To work the land large numbers of slaves were transported from West Africa, and even today Salvador has a very different character to other Brazilian cities. Intermarriages were very common throughout Brazil between the Portuguese and other indigenous people or even slaves .

Governance

The eleven members of the Supreme Federal Court of Brazil and the attorney general.

Brazil is governed by civil law. Their legal system is based on Roman codes and federal legislative powers. Their constitution was made up on October 5th, 1988.Their constitution establishes the three branches of government; legislative, executive, and the judiciary branch. The Congress involves the Chamber of Deputies and the Federal Senate. They use their legislative power through the legislative process which are the Senate and Chambers of Deputies.. The executive branch is surrounded by the President of the Republic and the Ministers of State. The judiciary branch is made up by the Federal Supreme Court, National Council of Justice, Federal Justice, Labor Justice, State Justice and a couple more Justices. The highest court is the Federal Supreme Court. The president holds office for 4 years, with the right to re-election for an additional 4-year term, and appoints his own cabinet There are 81 senators, three for each state and the federal district. The senate has an 8 year term which is spread out so that 2/3rds of the upper house is up for election at one time and 1/3 after 4 years. There is a bicameral legislature consisting of an upper Federal Senate and a lower Chamber of Deputies.

To vote in Brazil you have to be between the ages of 18 and 70. Voting is mandatory and voters must be a citizen of Brazil. Citizens of Brazil that are 16 years old and 70 years old and over are able to vote voluntarily. The military conscripts do not vote. If a person does not vote it is difficult to access certain things, for example receiving a passport or bank account. Brazilian citizens are required to vote. In 1996, Brazil began using an electronic voting system. However, the entire country didn't begin using it until 2000. For a candidate who holds office in the executive branch that is interested in an elective office they must resign six months before the election The requirements are a minister, governor, mayor or state enterprise director. These are beneficial for their elections.

Judicial Review

Brazil does have a judicial review. The judicial review that Brazil follows is the mixed model. The judges in the courts are allowed to ignore the constitution under certain circumstances. Before the new constitution in 1988, Brazil used a diffuse model. Brazil "judiciary had the duty of constitutional control with the potential inconsistency of decisions being lessened through stare decisis or a structural equivalent

Courts and Criminal Law

The criminal law system in Brazil uses an adversary system. Evidence that are made unconstitutionally are dismissed in the court. The criminal sentence has to be final and unappeasable to finally consider the criminal guilty. The Federal Supreme Tribunal consists of judges and eleven justices. The justices are appointed by the President of the Republic and they also have to be approved by the Federal Senate. The justices must be between 35 and 65. The justices may retire after 30 years of service but they must retire at the age of 70. Ellen Gracie is the first woman to become one of the justices in the Supreme Court in 2005. Joaquin Barbosa was the first afro-Brazilian. The Federal Supreme Tribunal is to safeguard the constitution . It makes peace between states and it also deals with complaints against higher authorities. The key actors in the courtrooms are the judges, plaintiff, victim, attorney, police, experts, clerks and auxiliary court personnel.

There are state courts in every state. The state courts have jurisdiction judges and at least one Appeal Court. They deal with the private individuals and many types of crimes except for the federal crimes which go to the Federal Courts. Trials are not averted by a plea of guilt. Confessions may be admitted as evidence, however, the court is the only ones who determine guilt or not. Brazilian court trials uses an adversarial system. The trail process starts when a complaint is accepted by the judge. They then pick a date to question the defendant. The first step for the trial procedure is immediately after questioning; the defendant will fit out a claim and name the witnesses. The second step is examining the witnesses, beginning by the state's witnesses. Both parties may present evidence throughout the criminal process. If the judge is convinced that the defendant is found guilty, the prosecutor may ask to move it to a Jury Court. The Jury Court consists of a judge and 21 jurors. The state's witnesses cannot hear the debates so they are taken away from the trial while seven out of twenty-one are selected to hear the case. The jury receives documents to hear the state's witnesses, judge, defense counsel, plaintiff, prosecutor and sometimes the defense's witnesses. The verdict is decided from the decision of the majority of the jurors.

Punishment

People older than 18 are under the Penal Code. Juvenile offenders are between the ages of 12 and 17. They are under the Statute of Children and Adolescents. Instead of being sentenced to prison, they are sent to an institution or in custody under a training order. Children under 12 years old cannot be tried on indictment. Their main concern is returning the juveniles back to the community. They focus on rehabilitation for juveniles.

30 years is the maximum amount of time to be incarcerated. The penalties are all up to the kind of offense, behavior and personality of the offender. A couple other penalties are fines and deportation. However, most of the offenses are punished with imprisonment. Some typical punishments for offenses are:

• intentional homicide (12 to 30 years)
• major assault (1 to 12 years)
• rape (6 to 10 years)
• kidnapping (8 to 30 years)
• theft (1 to 4 years)
• violent robbery (4 to 30 years)
• embezzlement (1 to 6 years)
• arson (3 to 6 years)
• Corruption (2 to 12 years).

Prisons in Brazil are one of the most human right problems. The inmates are held in scandalously abusive conditions. The population in prison is more than 360,000 even though the capacity is suppose to be 207,000.. Most of the Brazilian inmates are young, poor, male and uneducated. One- third of the inmates are between the ages of 20 to 30.

Brazil does not use capital punishment. The only exception is in case of war declared by Congress and as a response to aggression by a foreign nation. From 1995 to 1999, the numbers of inmates that were imprisoned increased by 30.5%. By 2000, the prison population was 200,000. The main problem for prisons in Brazil is the over crowding.

Women that are in prison that have children are allowed to keep their children with them until they are complete with breast feeding.

Legal Personnel

The police forces organization differs from state to state. To become a lieutenant, sergeant, captain, majors and colonels, a four year program at the Police Academy is required. The majors and colonels salaries are about the same as the state prosecutors . Law enforcements are trained by the police academy.The curriculum trained depends on what the country is dealing with the most at that time. Soliders are chosen by a public selection. Candidates are required to have completed middle school and passed several exams. Also, the candidate must have a clean criminal record. After the candidate has been selected, they must train for about 10 to 12 months. There are 358,166 military police officers in Brazil which is 211.3 for every 100,000 people. Their salaries are between $2,950.00 to $5,350.00 annually. There are 7,403 federal police officers. For beginner officers, there wages are $19,310.20 and police chiefs are $43,376.73. There requirements are a college degree and two exams which are psychological and intellectual exams. After they pass those exams, they go to a training program which varies from 4 to 8 months at the National Police Department.

Judges also have a process to go through to become a judge. They are selected by a screening process. A judge must be at least 24 years old and must have at least two years of experience as a practicing attorney. Federal judges average age is 34. Candidate's selects which type of judge they would like to focus on and takes a test which is very difficult and most candidates thrive. These types of judges are state, federal, military, and labor judges. After two years of working as a judge, they have a life term commitment. They have to work until they retire or if they commit a serious act. There are around 14 thousand judges in Brazil with an income of $65,000,00 American dollars.

Law Enforcement

Policing in Brazil is centralized. Brazil has two state police forces. These polices forces are the Military Police and the Civil Police. There are Military Police in each state. They are responsible for keeping order within the States and Federal District. Civil Police are responsible for the duties of a judical police force and investigating criminal offenses and also forensic work. Each state has different rules and uniforms for each Military Police force. Police chiefs are known as delegates and the force is commanded by the general delegate. The general delegate has the same rank of the commandant of the Military Police. To become a delegate, they must have a law degree, and must be selected by public examination. Officers with lower-ranking are known as investigators. The only way to get promoted is to receive a law degree.

Brazil also has three federal authorities: the Federal Police, the Federal Highway Police, and the Federal Railway Police. The Federal Police are responsible for investigating crimes that are against the Federal Government or its organs and companies. They are also responsible for the international drug trafficking and terrorism. The Federal Highway Police is responsible for fighting crimes on Brazilian federal roads and highways. The Federal Railway Police is responsible for patrols and securities on federal railways. The Federal Police chose there members from graduates of the National Police Academy. To join the state police you must pass a test that happen periodically. Delegates must be bachelors of law and pass a three-phase test. If they are approved, they must undergo a formative course in the police academy.

Crime Rates and Public Opinion

Rates of Key Crimes

Homicide 28.4

Robbery 12.1

Aggrevated Assualt 36.2

Crime in Brazil is very high. The murder rate in Brazil is four times higher than the United States. . The most common crimes that occur in Brazil are theft, pick pocketing, cons and "quick napping." Quick napping is when someone is kidnap for a small amount of time to receive a ransom." Since Brazil is a country in which there is a lot of tourism, these types of crimes occur more often than a non tourism country. Theft occurs mostly at airports and tourist areas in Brazil. Cons are also common to tourist because they notice that you are not from Brazil and will offer to take you around and they end up robbing you. The homicide rate in Brazil in 2002 was 28.4 per 100,000 people. In 2002, there were 49,570 homicides that were reported; 53.1 were males and 4.3 were females. Some crime reports do not have the population. For example, colleges, highway patrol, state police, and drug enforcement agencies. The least reported crime is rape . Citizens of Brazil favor the capital punishment. 51 percent of the people think that capital punishment should be reinstated.

Rights

Marriage

Getting married in Brazil has requirements that need to be fulfilled. There has to be two people of the opposite sex. They both have to be 18 years of age and if they are younger than 18, they need consent of their parents or legal guardian. Same sex marriage is illegal in Brazil. People cannot get married if a person was married before and has not completely finished the process of divorcing. Also marriage is not allowed if you are closely related to the other person, such as, siblings. . There are documentation and procedure that you need to meet before you get marriage. You need to register to get married and you need proof of the documents. Also, publication of the banns and getting a marriage license. The place to register for marriage is in the Civil Registry Office. They are responsible of finding out if on of the couple is a resident of Brazil. To fill out the document of registration, they must do it 30 days before the marriage date ceremony. It could take up to 20 to 60 days to process.

Divorce

Brazil was forbidden to divorce until 1977. Brazil had doubled their divorce rate since 1985 and most people believe that this is because the 1988 abolition. Men were now able to divorce as many times as they please. Before the abolition, they could only divorce twice in their lifetime. Sociologist believes that women are now ashamed if they stay with a man when they abused them while in the past, they would look down upon because the woman divorced her husband. Brazil has a law that states, married couples must wait two years after their marriage to get a divorce and they must wait two years after their divorce to remarry.

Local family courts handle divorce and custody in Brazil. Brazilian Civil Code lets married parents have equal rights of custody though their minor child. However, the U.S. Embassy of Brazil has gender discrimination. Women are much more likely to receive custody of small girls. Also, Brazilian parents would get custody before a foreign pattern does. Parental abduction is only a crime when it happens in Brazil and both the parents are Brazilian. However, if a Brazilian parent takes the child to Brazil without the foreign parent's custodial right, it becomes a crime.

Adoption

Brazil and the United States have an agreement with adoption called the Hague Adoption Convention. The adoptive parent(s) from the United States much come to Brazil to adopt a child. The child is not allowed to go to the United States to get adopted. Adopting a child is a long process. People may adopt children from Brazil without the parent being a citizen; however, there are some consequences. Most of the children are five years and up; sibling groups; and special needs children's. The adoptive parent(s) must be at least twenty-one years of age. There are no marriage requirements to adopt a child from Brazil. When the adoption papers are completed, the adoptive parent(s) must stay in Brazil for at least 15 days when the child is under two years old and 30 days when the child is over two years old.

Abortion

Overall, abortion is illegal in Brazil. There are only two reason that make abortion legal. The first reason is if the mother was rapped. The second is if the mother has to risk her life. There is a punishment for performing an abortion or consenting to one other than the reason said above which is three years of prison. If performing the abortion causes harm to the woman than the punishment increases by one-third and if the abortion causes the death of the woman than the punishment is double.

Social Inequality

There are many ways of becoming a citizen in Brazil. If one of your parents are a citizen of Brazil, then you are also a citizen of Brazil no matter where you were born. All children born in Brazil are also citizens, except if your parents are on the blue list. Women have the same equal right as men do to become a citizen of Brazil.

Discrimination does occur in Brazil and it is mostly seen in the work area. Women and black Brazilians are the ones that are getting discriminated. This goes to back to when people received their jobs by hierarchies of race and gender, instead of receiving them by their education and skill. Men and women income per hour also are not equal. There are more men that have educated in universities which helps them receive higher pay in job. Brazilians consider childcare, grade school teachers and nursing as "women's work." However, Brazil does have programs that fight for gender equality in Brazil.

Human Rights

Article 5 in the Brazil constitution talks about equality among the people in Brazil it says "all persons are equal before the law, without any distinction whatsoever, and Brazilians and foreigners resident in Brazil are assured of inviolability of the rights of life, liberty, equality, security, and property." Men and women in Brazil are treated equally with equal rights. Brazil has about 3,500 refugees and 25% are women. Refugees are documented and have equal access to work, health care and education. However, refugees do have a difficult time in finding homes and employments.

Brazil has had problems with violating other citizens of their human rights. "The following human rights problems were reported: beatings, abuse, and torture of detainees and inmates by police and prison security forces; inability to protect witnesses involved in criminal cases; poor prison conditions; prolonged pretrial detention and inordinate delays of trials; attacks on the media by local authorities and organized crime; violence and discrimination against women; violence against children, including sexual abuse; trafficking in persons; discrimination against indigenous people and minorities; significant obstacles to persons with disabilities; failure to either apply or enforce labor laws; and child labor in the informal sector." These are all violations for Brazilian citizens.