BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
10.4 Factual Errors A government decision can be challenged if it fails to properly assess the facts and evidence in the administrative process. 10.5 Abdication or Fettering of Discretion Government discretion allows public officials to make decisions based on convenience and opportunity, provided they act within legal lim - its and comply with the requirements of the act – namely, competence, purpose, form, motive and object. If a public official unlawfully abdi - cates their decision-making power or improperly restricts their discretion in violation of applicable regulations, this may constitute a defect in the government act. In such cases, the act can be challenged. 10.6 Bias Decisions made in violation of the constitutional principle of impartiality can be challenged. 10.7 Unequal Treatment The principle of equality requires that everyone be treated equally before the law, except in cas - es where differential treatment is legally justified. If it is proven that unequal treatment was applied without legal or reasonable justification, the gov - ernment act may be deemed invalid for violating the principle of equality enshrined in the Brazilian Brazil is a signatory to the American Conven - tion on Human Rights (Pact of San José, Costa Rica) and the International Covenant on Civil and Political Rights. Human rights violations can be challenged before Brazilian courts as well as through the Inter-American System for the Protection of Human Rights (SIPDH), which comprises the Inter-American Commission on Federal Constitution. 10.8 Human Rights
There are also precautionary injunctions, which serve an instrumental purpose, aiming to pre - serve the status quo of the parties until a final decision is reached. Additionally, Brazilian law provides for priority case processing in certain situations, particularly when the claimant is an elderly person, a person with a disability or a minor (child or adolescent). 10. Grounds 10.1 Scope of Judicial Review: Merits v Process The judiciary is responsible for reviewing the legality of government acts and ensuring the regularity of the administrative process in which the act was issued. However, the courts should not intervene in the substance of government decisions – that is, in matters of convenience or opportunity where the government exercises its discretionary powers. 10.2 Constitutional Challenge Brazil has a written constitution, the Constitution of the Federative Republic of Brazil (1988). It is indeed possible to challenge the constitutionality of government decisions through the courts. In other words, a constitutional review allows the judiciary to assess whether government acts comply with the Constitution. It is also possible to file a constitutional complaint before the Fed - eral Supreme Court against government acts that harm precedents established by the Supreme Court on constitutional matters. For more details on the Brazilian system of constitutional review, see 3.1 Challenging Primary Legislation . 10.3 Procedural Errors A government decision can be challenged if it fails to follow the procedure set out in the appli - cable legislation.
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