Public Defenders’ Offices In Brazil: Access To Justice, Courts, And Public Defenders

Introduction

From 1964 to 1985, a Civilian-Military Dictatorship ruled Brazil. During this period, national politics emphasized economic development, to the detriment of political and civil liberties and social equality.¹ As a result, Brazil was second to Japan in economic growth, but inequality rose abruptly. In 1964, the top 1 percent of earners received 6 percent of the national income, the lowest figure in Brazilian recorded history. Contrastingly, In 1985, the top 1 percent of earners received an astonishing 30 percent of the national income, a figure that made Brazilian society the most unequal in the world.²

In the 1980s, the democratization process tried to promote political and civil liberties and tackle social equality issues simultaneously. The 1988 Federal Constitution guaranteed political and civil liberties to a level unparalleled in Brazilian history, and also guaranteed a wide range of social rights.³ This set the base for a strong welfare state. Most importantly, the institutional framework that emerged from the new democratic Federal Constitution envisioned full access to a strong justice system as the main tool to achieve the political and social project embodied in its chart of rights. In this context, the enforcement of the right to access to justice is key to an effective participation of excluded or marginalized citizens in the political realm,⁴ thus promoting equality.

This essay discusses the impact of public defenders’ offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts. Part I presents the Brazilian public defenders’ offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is any reason to believe that public defenders’ offices will be able to guarantee the right to access to justice to all Brazilian citizens in need of free legal services.

Public Defenders’ Offices

Brazil operated under a Federalist System, similar to the United States or Austrailia, since 1981. For this reason, the Brazilian judicial system was divided into two different branches: the Federal Justice System and State Courts. The Federal Justice system is subdivided into Federal Justice, Labor Justice, Federal Military Justice and the Federal District Courts of Justice. State courts include at least one court for each of the twenty-six member states, depending on what is established by each state’s constitution. As a result, there is not one but rather twenty-eight public defenders’ offices in Brazil: the Federal Public Defender’s Office,⁵ the Federal District Public Defender’s Office, and twenty-six public defenders’ offices at state level. We may not say that the public defenders’ offices act as an integrated public service, since each one is entirely autonomous, and there is no hierarchy or coordination among them. However, they do share a common history, a set of general guidelines established by the 1988 Federal Constitution, federal statutes concerning the right to free legal counseling, and the right to free access to judicial and administrative proceedings.

History and Institutional Design

The first attempt to offer free legal counseling sponsored by the State in Brazil was made in 1897, when the Federal Government created a free legal counseling unit within the General Attorney’s Office for the Federal District.⁶ Although this unit was the start of what is today the Public Defenders’ Office of the State of Rio de Janeiro, the initiative was not followed by the creation of similar services.⁷ It was only after the 1934 Federal Constitution and the 1939 Unified Civil Procedure Code enforced free legal counseling to the poor that other states started to offer similar services. The first states to comply were Minas Gerais, Rio Grande do Sul, and Sao Paulo.⁸ The services were provided either by the General Attorney...