BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
2.3 Obtaining Disclosure of Documents and Evidence From Third Parties As discussed in 2.2 Preserving Evidence , it is possible to obtain evidence through a standalone lawsuit referred to as an Early Production of Evi - dence. This procedure serves several purposes, including preserving 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 consid - ered admissible in court proceedings, it must meet certain requirements, such as the follow - ing. • 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 authen - tic and accurately represent the facts it purports to depict. This may require verifying the authenticity of documents or other forms of evidence through appropriate means, such as expert analysis or testimony. • Admissibility under the law – The evidence must be admissible under the rules of evi- dence set forth in the Brazilian Civil Pro - cedure Code and other relevant laws and regulations. Certain types of evidence may be excluded or restricted based on legal princi - ples or public policy considerations. 2.4 Procedural Orders Under the Brazilian legal framework, a decision cannot 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 out - come of the procedural act, particularly when there are grounds to believe that the defendant may frustrate the proceeding if made aware of the request. To request a preliminary injunction without notice, it is necessary to demonstrate urgency ( periculum in mora ), necessity or excep - tional 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 damage 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 com - pensation in the criminal sphere, it is certain that the wording of the above provision is clear and allows the judge to set the minimum compensa - tion. 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 vic - tim is given the possibility of requesting interven - tion in the criminal process to assist the Public Prosecutor’s Office, as an assistant to the pros - ecution. This role is accepted only during the criminal proceeding, and there is no role as an assistant to the prosecution during the police
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