March 14, 2012
São Paulo/Brasilia – Brazil’s Supreme Court (STF) affirmed today (March 14) the unconstitutionality of the regulation of free legal counsel by the state of Santa Catarina, which establishes that this service may only be provided by state-appointed lawyers who are members of the state’s Bar Association, and not by the Public Defender’s Service. As a result, the court has paved the way for a Public Defender’s Service to be created in the state to provide legal counsel to people who cannot afford a lawyer. The decision by the STF was unanimous and ends the monopoly of the state’s Bar Association. Santa Catarina is the only Brazilian state without a Public Defender’s Service.
Click here to listen to the interview with the associate director of Conectas and the Pro Bono Institute, Marcos Fuchs, who made the oral argument in the case and spoke shortly after the STF ruling in Brasília.
The two Direct Actions of Unconstitutionality heard by the Supreme Court were numbered 4270 and 3892. The first was filed by the National Association of Federal Public Defenders (ANDPU) and the second by the National Association of Public Defenders (ANADEP). Prepared by Justice Joaquim Barbosa, both questioned the constitutionality of provisions of the Santa Catarina state Constitution and of Complementary Law No. 155/1997.
The declaration of the unconstitutionality of the legislation in Santa Catarina strengthens the precedent set recently by the Supreme Court on the autonomy of Public Defender’s Services. On February 29, the STF ruled that the São Paulo Public Defender’s Service cannot be compelled to enter into contract with the state’s Bar Association. The court judged that this obligation violated the functional, administrative and financial autonomy conferred upon the Public Defender’s Service by the Brazilian Constitution. Furthermore, on March 7, the court declared the unconstitutionality of the laws of the states of Maranhão and Minas Gerais that place the Public Defender’s Service within the administrative structure of the state government, subordinating them to the governors.
About amicus curiae: The expression comes from the Latin “friend of the court” and represents the reports, opinions and testimonies presented in cases to determine the constitutionality of matters of public importance, which are intended to influence the decision of the judges and pluralize the debate. The legal concept permits non-governmental organizations, sector associations, specialists, teachers and other social actors to address the Supreme Court in cases of constitutionality. In the case in hand, Conectas and the Pro Bono Institute argued for the unconstitutionality of the Santa Catarina state Constitution and legislation.
See below the oral argument of Conectas and the Pro Bono Institute, made by the lawyer Marcos Fuchs.