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FALQs: Impeachment Process in Brazil

The following is a guest post by Eduardo Soares, a foreign law specialist covering Brazil and other Portuguese-speaking countries at the Law Library of Congress. Eduardo has previously published posts about the Brazilian law collection, capoeira and the law, a Law Library report on citizenship pathways and border protection, highlights of the Law Library’s collection of materials related to the development of the civil law system, and the new civil procedure code in Brazil.

PROTESTO-DILMA - SÃO PAULO,SP, 13.03.2016. Manifestantes contrario ao governo Dilma Rousseff durante ato pelo impeachment da presidente na Avenida Paulo Faccini em Sao Paulo, neste domingo, 13. [Protesters opposed to the government Dilma Rousseff during act to impeach the president on Avenida Paulo Faccini in São Paulo, on Sunday, 13] (Photo by Flickr user Renato Gizzi/Brazil Photo Press. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/.)

PROTESTO-DILMA – SÃO PAULO, SP, 13.03.2016. Protesters opposed to the government of Dilma Rousseff during the act to impeach the president on Avenida Paulo Faccini in São Paulo, on Sunday, 13 March. (Photo by Flickr user Renato Gizzi/Brazil Photo Press. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/.)

Brazil is currently in the process of impeaching its president for allegedly infringing the country’s budget law by using government banks to finance budget gaps. I recently wrote about the legal framework available for fighting corruption in Brazil, and now this latest situation presents an opportunity to describe the impeachment process in the country.

1. What laws regulate the impeachment process in Brazil?

Impeachment in Brazil is regulated by the Federal Constitution [C.F.], by Law No. 1,079 of April 10, 1950, and by the internal bylaw (Regimento Interno da Câmara dos Deputados) of the Chamber of Deputies and the internal bylaw (Regimento Interno do Senado Federal) of the Federal Senate.  Information about relevant provisions in each of these laws is provided below.

2.  What are the reasons to impeach a President?

According to article 85 of the Constitution, acts of the President of the Republic that breach the Constitution are crimes of responsibility (crimes de responsabilidade), especially those against the

I – existence of the Union;

II – free exercise of the powers of the Legislature, Judiciary, Public Prosecutor’s Office (Ministério Publico) and constitutional powers of the units of the Federation;

III – exercise of political, individual and social rights;

IV – internal security of the country;

V – probity in administration;

VI – the budget law; and

VII – compliance with the laws and court decisions.

Article 85 further determines that these offenses must be defined in a special law, which must also establish rules of procedure and trial.

3. What is involved in the process for impeaching the President?

[House starts voting on impeachment: Brasilia - Mr Bruno Araujo makes the vote that ensures the authorization of the impeachment of President Dilma Rousseff, in the Chamber of Deputies.] (Photo by Marcelo Camargo/Agência Brasil, via Flickr user Agência Brasil Fotografias. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

House starts voting on impeachment: Brasilia – Mr Bruno Araujo makes the vote that ensures the authorization of the impeachment of President Dilma Rousseff, in the Chamber of Deputies. (Photo by Marcelo Camargo/Agência Brasil, via Flickr user Agência Brasil Fotografias. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

If two-thirds of the Chamber of Deputies accepts an accusation against the President of the Republic, the President must be tried before the Federal Supreme Court for common criminal offenses or before the Federal Senate for crimes of responsibility.  (C.F. art. 86.)

If charges are accepted against the President, he or she must be suspended from his or her duties in the following situations:

I –  for common criminal offenses, if the accusation or criminal complaint is received by the Federal Supreme Court;

II – for crimes of responsibility, after proceedings are initiated (instauração do processo) by the Federal Senate.  (C.F. art. 86(§ 1).)

If, after a period of 180 days, the trial has not been concluded, the President’s suspension must end, without prejudice to the normal progress of the proceedings.  (C.F. art. 86(§ 2).)  In addition, the President of the Republic must not be subject to arrest for common offenses until after he/she has been convicted of a criminal offense.  (C.F. art. 86(§ 3).)  During his/her term of office, the President of the Republic may not be held liable for acts unrelated to the performance of his/her duties.  (C.F. art. 86(§ 4).)

4. What are the powers of the Senate?

With regard to the impeachment procedures, article 52 of the Constitution determines that the Federal Senate has exclusive powers:

I – to try for crimes of responsibility the President and the Vice-President of the Republic, as well as Ministers and the Commanders of the Navy, the Army, and the Air Force for crimes of the same nature connected with them;

II – to try for impeachable offenses the Ministers of the Federal Supreme Court, members of the National Council of Justice and the National Council of the Public Prosecutor’s Office, the Attorney-General of the Republic (Procurador-Geral da República), and the Advocate-General of the Union (Advogado-Geral da União).

In cases provided for in sections I and II of article 52, the President of the Federal Supreme Court must preside, and a conviction may only be rendered by a two-thirds vote of the Federal Senate.

5. What is the punishment for crimes of responsibility?

Under the Constitution, upon conviction for a crime of criminal responsibility or an impeachable offense, a person’s punishment must be limited to loss of office, with disqualification to hold any public office for a period of eight years, without prejudice to any other judicial sanctions that may be applicable.  (C.F. art. 52.)

Under Law No. 1,079, crimes against the Federal Constitution and crimes of responsibility that have been practiced or attempted by the President of the Republic, Ministers of State, Justices of the Federal Supreme Court, and the Attorney General (Procurador Geral da República) are punishable with loss of office and disqualification from the exercise of public functions for five years.  Such a punishment is imposed by the Federal Senate.

However, it appears that the Constitution supersedes Law No. 1,079, thus imposing a punishment of disqualification for eight years rather than five years.

In addition, according to Law No. 1,079, such punishment does not preclude the prosecution and trial of the accused person for common crimes in the criminal courts under criminal procedure laws.

6.  What are the relevant rules in the internal bylaws of the Chamber of Deputies and the Senate?

In the prosecution and trial of the President of the Republic and the Ministers of State, the internal bylaw of the Chamber of Deputies, the internal bylaw of the Federal Senate, and the Code of Criminal Procedure must be used subsidiarily to Law No. 1,079.

a.  Internal bylaw of the Chamber of Deputies

Special Impeachment Committee 2016 (CEI2016) holds working meeting for referral by the leaders and voting on the report. (Photo by Marcos Oliveira/Agência Senado, via Flickr user Senado Federal. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

Special Impeachment Committee 2016 (CEI2016) holds working meeting for referral by the leaders and voting on the report. (Photo by Marcos Oliveira/Agência Senado, via Flickr user Senado Federal. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

The internal bylaw of the Chamber of Deputies was approved on September 21, 1989, through Resolution No. 179. The Resolution provides a detailed description of the procedures regarding the functioning of the Chamber of Deputies and also includes the procedures to be followed in cases of impeachment of the President of the Republic.

Article 14 of Law No. 1,079 and article 218 of the internal bylaw of the Chamber of Deputies determine that any citizen is allowed to report (denunciar) the President of the Republic or a Minister of State for crimes of responsibility to the Chamber of Deputies.

Article 218 of the internal bylaw requires that the complaint (denúncia) must be signed and notarized by the complainant and must be accompanied by documents that prove the allegations, or if it is not possible to present the documents, it must be accompanied by an affidavit indicating the place where the documents can be found and a list, if applicable, with at least five witnesses.

Upon receipt of the complaint by the President of the Chamber of Deputies, and provided that the requirements for its acceptance have been fulfilled, the complaint must be read during the next session of the Chamber and later forwarded to a Special Committee elected to analyze the complaint.  The committee must have the proportional participation of representatives of all political parties.

Once the complaint has been accepted, the accused person is then notified, and may, if he/she wishes, defend him/herself within the period of ten sessions of the Chamber of Deputies.

If the complaint is not accepted by the President of the Chamber of Deputies, the order that rejects the receipt of the complaint may be appealed to the full assembly (plenário) of the Chamber of Deputies.

Once the Special Committee is elected it must meet within 48 hours to analyze the complaint; after electing its Chairman and Rapporteur (relator), the Special Committee must issue an opinion within five sessions after the accused person presents a defense, or at the end of the tenth session previously mentioned. The opinion must decide whether to accept or dismiss the complaint.

The opinion issued by the Special Committee must be read during a session of the Chamber of Deputies and published in its entirety, along with the complaint, in the Journal of the Chamber of Deputies (Diário da Câmara dos Deputados).  Forty-eight hours after the publication of the opinion of the Special Committee, the opinion must be included in the schedule of the next session of the Chamber of Deputies.

After the opinion has been discussed in the Chamber of Deputies, the opinion must be submitted to the nominal vote of the deputies.  If two-thirds of the members of the Chamber of Deputies vote in favor of the opinion, the impeachment proceeding against the accused person is authorized.  The decision authorizing the impeachment proceeding must then be forwarded to the President of the Federal Senate within two sessions.

b.  Internal bylaw of the Senate

Senate plenary during extraordinary deliberative session that will decide the approval or rejection of the favorable report to the admissibility of the impeachment of the president. (Photo by Beto Barata/Agência Senado, May 12, 2015, via Flickr user Senado Federal. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

Senate plenary during extraordinary deliberative session that will decide the approval or rejection of the favorable report to the admissibility of the impeachment of the president. (Photo by Beto Barata/Agência Senado, May 12, 2015, via Flickr user Senado Federal. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/.)

The internal bylaw of the Federal Senate was approved in 1970 through Resolution No. 93.  The Resolution repeats the language used in article 52 of the Constitution to describe the exclusive jurisdiction of the Federal Senate to prosecute and try the President and the Vice-President of the Republic for crimes of responsibility (art. 377) and defines the procedures for the trial of the President and the Vice-President of the Republic for crimes of responsibility (art. 380).

The procedures of the Federal Senate for trying the President and the Vice-President of the Republic for crimes of responsibility involve the following:

I – once the opinion approved by the Chamber of Deputies to start impeachment proceedings against the President of the Republic is received by the Federal Senate, the document must be read at the next session of the Federal Senate.

II – in the same session in which the reading is done a committee will be elected, composed of one quarter of the total number of Senators (81), subject to the proportionality of party representation or parliamentary blocs, which will be responsible for the impeachment process.

III – the committee must prepare the indictment (libelo acusatório), which must be attached to the process and delivered to the President of the Federal Senate, who must forward the original document to the President of the Federal Supreme Court, with information regarding the day that has been designated to the trial.

IV – the First Secretary of the Federal Senate must then send to the accused person a certified copy of all parts of the process, including the indictment, notifying the person of the day and time he/she should appear at the Federal Senate for the trial;

V – if the accused person is not currently in the Federal District, the President of the Federal Senate must request the President of the Justice Tribunal of the state where the person is to notify the accused person.

After the impeachment trial begins, article 318 of the internal bylaw of the Federal Senate reaffirms the procedure established by article 86(§ 1)(II) of the Constitution, which determines that for crimes of responsibility the President of the Republic must be suspended from his/her duties after impeachment proceedings are initiated.  In addition, as described in paragraph 2 of article 86 of the Constitution, article 318 determines that if, after a period of 180 days, the trial has not been concluded, the President’s suspension must end, without prejudice to the normal progress of the proceedings.

In the process and trial of crimes of responsibility referred to in articles 377–381 of the internal bylaw of the Federal Senate, the provisions of Law No. 1,079, of April 10, 1950, may also be applied.

The internal bylaw repeats what has been previously established in the Constitution and determines that a conviction may only be rendered by a two-thirds vote of the Federal Senate.

The punishment must be limited to loss of office, with disqualification to hold any public office for a period of eight years, without prejudice to any other judicial sanctions that may be applicable.

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