BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
Human Rights (IACHR) and the Inter-American Court of Human Rights. 10.9 Proportionality The principle of proportionality is widely recog - nised and firmly embedded in Brazilian law, par - ticularly in matters of constitutional review and public law. It is frequently invoked to challenge legislative and government acts that violate fundamental rights or impose disproportionate restrictions on citizens. 10.10Additional Grounds Brazil follows a civil law system. As such, the fundamental principle of the public regime is the principle of legality, which dictates that the gov - ernment may only act in accordance with legal norms. Additionally, government acts must com - ply with the following principles: • purpose; • motivation; • reasonableness; • morality; • the right to a broad defence; • the right to adversarial proceedings; • legal certainty; • public interest; and • efficiency. Failure to do so may render the act subject to challenge. Challenges may also be brought against government decisions that are based on abstract values without due consideration of the practical consequences of the act. 10.11Exempt Decisions The Brazilian Federal Constitution establishes that all government and judicial decisions are subject to judicial review. This principle is known as the non-exclusion of judicial review. However, when it comes to discretionary government acts,
the judiciary is limited to reviewing their legality and constitutionality, without interfering in the merits of government discretion. 11. Defence 11.1 Timing and Grounds of Defence Once an ordinary claim has been filed by the claimant, the defendant will be summoned to present their defence statement in the judicial proceedings. In this statement, the defendant must set out all defence arguments, explaining the factual and legal grounds for contesting the claimant’s request and specifying any evidence they intend to submit. Additionally, before addressing the substantive legal issues, the defendant must raise any pre - liminary objections, which may reveal procedural defects, whether rectifiable or fatal. In cases involving writs of mandamus, the coercive author - ity must respond by submitting what is known as “statement of information” , in which they may justify or defend the challenged government act. 12. Interim Relief 12.1 Common Forms of Interim Relief Brazilian law allows for the granting of provi - sional remedies. In ordinary claims, these fall into two categories: urgent relief and evidence- based relief. For urgent relief, the claimant must demonstrate that the challenged government act poses a risk of harm or jeopardises the effective outcome of the proceedings. This type of relief may be granted at the outset, during the course of the proceedings or even at the appeal stage.
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