BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
13.4 Next Steps Where a Decision Is Found Unlawful The government may invalidate its own acts if it identifies defects that render them unlawful, as unlawful government acts do not create rights. The government may also revoke its acts for rea - sons of convenience or opportunity but, in such cases, acquired rights must be respected. If an government act is deemed unlawful, the gov - ernment is responsible for determining whether there was a serious error or abuse of power and for holding the officials involved accountable. When illegality is identified within a judicial pro - ceeding, the next steps will depend on the type of judicial review (diffuse or concentrated con - trol) and the relief sought by the parties. These may include the annulment of the act or the liability of the state entity. 14. Costs 14.1 Mechanisms to Protect Claimants From Excessive Costs The Federal Supreme Court has ruled that the absence of fixed maximum court costs in judicial proceedings violates the constitutional principle of non-exclusion of judicial review. Court fees and procedural expenses are regulated by law and by government acts issued by the courts. Additionally, judges are responsible for deter - mining the remuneration of experts, interpreters and translators – after consulting the parties – taking into account the following: • the location of the service; • the nature and complexity of the work; and • the estimated time required. The benefit of legal aid (commonly referred to as “free justice” in Brazil) may be granted to low- income individuals.
Evidence-based relief, by contrast, is not depend - ent on urgency but is granted solely on the basis of a very high probability that the claimant’s right will be upheld. In cases involving a writ of manda - mus against government acts, a preliminary order may be granted if there are substantial grounds and a risk to the effective outcome of the case.
13. Remedies 13.1 Damages
If an government act is deemed unlawful and causes harm to an individual, compensation may be sought, provided that a causal link between the state’s conduct and the harm suffered can be established. 13.2 Invalidating Legislation The judiciary is responsible for reviewing the legality and constitutionality of laws and norma - tive acts. Legality review can take place in any judicial proceeding. Constitutional review may be carried out in two ways: • diffuse review, which occurs within the con - text of a specific case under judgment; or • concentrated review, which is conducted directly by the Federal Supreme Court. For more details on this topic, see 3.1 Challeng- ing Primary Legislation . 13.3 Mandating Government Action Through Court Orders The judiciary may require the government to take specific measures if it finds a breach of legal or constitutional rules. However, the judiciary cannot replace the government’s discretion with its own judgment in discretionary decisions. In such cas - es, judicial review is limited to ensuring legality.
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