BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell and Marcelo Lucidi, Duarte Forssell Advogados
2.9 Compelling Witnesses to Give Evidence Testimonial Evidence According to Brazilian law, any person with knowledge of the circumstances of the claim may be compelled to provide evidence to the court through their testi - mony. Issuing the witness summons is the duty of the lawyer and should be effected at least three days before the trial (Article 455, § 1º of the Civil Procedure Code). The court may issue the witness summons under cer - tain circumstances, including: • if the lawyer’s attempt to summon the witness is unsuccessful; • if the need for the witness’s testimony is proven to the judge; • if the witness holds certain public positions; or • if the witness has been called by the Public Pros - ecutor’s Office or the Public Defender’s Office. Once properly summoned, the witness is obligated to attend the trial and truthfully answer questions posed by the judge or the parties. Additional Aspects It is worth noting that the witness may be entitled to refuse to answer questions based on certain privi - leges, such as legal professional privilege or privilege against self-incrimination. If the witness, summoned in accordance with legal requirements, fails to attend the hearing without a valid reason, they will be coercively conducted and will bear the costs of rescheduling the hearing (Article 455, § 5º of the Civil Procedure Code). Any breach of the duty to truthfully give testimony may render the witness criminally liable for perjury. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on a Corporate Entity The Brazilian Anti-Corruption Law imposes penalties on legal entities in cases of corruption or acts that harm the government and government assets, regard - less of whether managers were held criminally liable. However, the law does not absolve managers or any
considerations that lawyers must adhere to, including the following. • Substantiation – When pleading fraud, it is essen - tial to provide specific and detailed allegations supported by evidence. Brazilian courts typically require plaintiffs to substantiate their claims with sufficient factual and legal basis. Vague or unsub - stantiated allegations of fraud may be dismissed by the court. • Ethical considerations – Lawyers must adhere to ethical standards when pleading fraud. This includes avoiding making false or misleading state - ments to the court or opposing parties. Lawyers should present their case honestly and accurately, and refrain from engaging in tactics intended to deceive or manipulate the legal process. Lawyers have a duty to act in the best interests of their cli - ents while also upholding the integrity of the legal profession. • Consequences of frivolous claims – Filing frivo - lous or meritless claims of fraud can have serious consequences, including sanctions for bad faith litigation. 2.8 Claims Against “Unknown” Fraudsters As a general rule, an initial complaint that initiates a legal action must properly identify the defendant, including their particulars and known address. How - ever, in exceptional circumstances, the Brazilian legal system allows the filing of claims against unknown or uncertain defendants. For instance, Article 256 of the Code of Civil Procedure permits service by publication of a notice when “the person being cited is unknown or uncertain”. Furthermore, Article 319 (§3) of the Code of Civil Procedure provides that the initial com - plaint cannot be rejected when information regarding the defendant’s particulars is impossible to obtain. Regarding proprietary measures qualified as ações reipersecutórias , there are judicial precedents allow - ing the commencement of legal cases against defend - ants not currently known but identifiable. This can be particularly relevant for fraud claims involving cryp - tocurrency.
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