BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell and Marcelo Lucidi, Duarte Forssell Advogados
2.3 Obtaining Disclosure of Documents and Evidence From Third Parties As discussed in 2.2 Preserving Evidence , it is pos - sible to obtain evidence through a standalone lawsuit referred to as an Early Production of Evidence. This procedure serves several purposes, including preserv - ing evidence obtained from third parties. There are no restrictions placed on the use of such material in civil claims, save for confidentiality provisions or judicial secrecy ordered by the court. Under Brazilian law, for evidence to be considered admissible in court proceedings, it must meet certain requirements, such as the following. • Lawfulness – The evidence must have been obtained lawfully, meaning it must have been obtained in accordance with applicable laws and regulations. Evidence obtained through illegal or unlawful means may be deemed inadmissible by the court. • Authenticity – The evidence must be authentic and accurately represent the facts it purports to depict. This may require verifying the authenticity of docu - ments or other forms of evidence through appropri - ate means, such as expert analysis or testimony. • Admissibility under the law – The evidence must be admissible under the rules of evidence set forth in the Brazilian Civil Procedure Code and other relevant laws and regulations. Certain types of evidence may be excluded or restricted based on legal principles or public policy considerations. 2.4 Procedural Orders Under the Brazilian legal framework, a decision can - not be rendered against one party before its hearing, as stipulated in Article 9 of the Civil Procedure Code. However, exceptions to this rule exist, permitting the granting of preliminary injunctions without notice (inaudita altera pars). Such exceptions arise when the presence of the other party could jeopardise the effective outcome of the procedural act, particularly when there are grounds to believe that the defendant may frustrate the pro - ceeding if made aware of the request. To request a preliminary injunction without notice, it is necessary to demonstrate urgency (periculum in mora), necessity or
exceptional circumstances that justify conducting the procedural act without the presence of the other party. 2.5 Criminal Redress Compensation Under Criminal Proceedings When handing down a conviction, the judge shall set a minimum amount to compensate for the dam - age caused by the offence, considering the losses suffered by the offended party (Article 387, IV, of the Criminal Procedure Code). This is without prejudice to the possibility of the victim filing a separate civil lawsuit. Although there is academic discussion regarding the legality, breadth and scope of setting compensation in the criminal sphere, it is certain that the wording of the above provision is clear and allows the judge to set the minimum compensation. Possibility to Act as a Prosecution Assistant for the Public Prosecutor’s Office In Brazil, as a rule the plaintiff of a public criminal action is the Public Prosecutor’s Office. The victim is given the possibility of requesting intervention in the criminal process to assist the Public Prosecu - tor’s Office, as an assistant to the prosecution. This role is accepted only during the criminal proceeding, and there is no role as an assistant to the prosecution during the police investigation phase. Nothing pre - vents the victim of fraud, even if deprived of the status of assistant prosecutor, from assisting the police in investigations. Intervention as an assistant to the prosecution may occur at any time during the criminal action as long as there has not yet been a final judgment (Article 269 of Criminal Procedure Code). Among the possible actions, the prosecution assis - tant may propose means of proof, such as request - ing expert examinations, confrontations or search and seizure. The assistant is also able to put questions to witnesses, always after the Public Prosecutor’s Office, and participate in oral debates. The prosecu - tor’s assistant may also reason the appeals filed by them or the Public Prosecutor’s Office.
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