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http://www.unep.org/

Sentença: Mercedes-Benz.

Publicação: DJ 13/11/2009.
INDENIZATORIA (REPARACAO DE DANOS) - 14003007352-6(9991-1-1)
Apensos: 450777-0/2004
Autor(s): Meter Comercio E Representacoes Ltda
Reu(s): Uniao Bahia Automoveis Ltda, Daimler Chrysler Do Brasil Ltda, Norasa Automoveis Ltda

Sentença: (...) Desta feita, pelas razões acima expostas, julgo PARCIALMENTE PROCEDENTE a ação para condenar o réu ao pagamento de valor correspondente à quantia paga pelo veículo, devidamente corrigida desde a data da aquisição até a do efetivo pagamento, bem como indenização pelos danos materiais referentes aos gastos com aluguéis de veículo a ser liquidado por artigos posteriormente, e por danos materiais na importância de R$ 20.000,00 (vinte mil reais). Custas e honorários advocatícios pelas partes acionadas, estes fixados em 15% do valor atribuido à causa. (DRA. MBF).

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Fabiano Lins
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Small talk over US Income Tax (Second Part).

Dlm2 Advogados Associados.
Written by Fabiano Lins.
Attorney at Law/Advogado.
www.dlm2.adv.br

“Until 1962 investors in foreign mutual funds avoided US taxation on earnings from the funds. As foreign corporations with foreign-source income, the funds were not subject to US tax. US investors deferred US Tax because they received no dividends from the funds, and, with the funds usually owned by US and foreign investors in small percentages, the CFC and FPHC rules were not generally applicable”(Gianni, Monica RIA group, “Practical Tax Strategies”, West Law 1999).

Consequently, the US Congress took action against mutual funds operated abroad and enacted an antideferral law in order to prevent Americans from deferring income tax. Prior to this rule, US investors were taxed on income operated by foreign mutual funds only when they sold their interest in the funds. In other words, the taxation on income occurred only when the investors earned capital gains.

“Under the FIC rules, a US citizen’s gain on the sale or exchange of stock in an FIC is recharacterized as ordinary income to the extent of the taxpayer’s ratable share of the foreign corporation’s post-1962 E&P that was accumulated the taxpayer owned the stock”(Gianni, Monica RIA group, “Particle Tax Strategies”, West Law 1999). We must say that the United State taxation is slightly generous with capital gains realized in the long-term (after one year). Ordinary income and short-term capital gains are treated with 39.6 % on earned income.

On the other hand, long-term capital income tax is around 28%. Indeed, if the person dies, under United State tax law, he or she would be exempt from any income tax. It is necessary to understand that it is not the long-term capital that should be treated specially by American authorities, but the “net long-term capital”(an account made by a calculation of short-term losses and gains against long-term losses and gains).

Now, we can understand how important it is to American citizens to defer income tax as long as they can.

In this sense, what should be the Brazilian approach for the matter raised?

Capital gains and dividends remitted abroad: Brazilian considerations.

Dantas Lins Moura Mattos Advogados Associados.

Written by Fabiano Lins.
Attorney at Law.
www.dlm2.adv.br

The capital repatriation up to the value certified before the Central Bank of Brazil (BACEN)    is not subject to taxation according to the Brazilian Law. We do know also that dividends can be remitted abroad as soon as they are being divided among the shareholders; or they can be used to recapitalized the company increasing its social capital or offsetting losses; or they can be reinvested into a fund belonged to the company for new ventures. Looking at all these hypothetical, we may or may not take one or the others, but certainly we have a full hand of possibilities to work on rational remittances diminishing tax liability. We should remember that everything turned into capital and registered before BACEN can be remitted abroad after liquidation without withhold tax.


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DLM2 ADVOGADOS

Business Law Office, Tailored and Full Service Office.

Dlm2 Advogados - Dantas Lins & Moura Mattos Advogados Associados

Website: www.dlm2.adv.br

Law Firm Overview: Dlm2 Advogados offers legal advisory services mainly focused on the States of Bahia and Sergipe. But also, The Firm provides legal services featured to clients all over Brazil in association to other lawyers based on Rio de Janeiro, Brasília and São Paulo.

The Firm provides legal counseling in several areas of law practicing such as real estate law, labor law, trade law, among others.

Dlm2 Advogados uses the best legal and technological power tools available on the market keeping our staff and clients always updated and well informed of the cutting edged and finest legal advances.

We are focusing on small and middle companies and law firms interest in synergy, as a result of associations to other companies and law firms to achieve better results in Brazilian Market.

Small talk over US income tax and its consequences.

US income tax and its consequences.

Written by Fabiano Lins
Attorney at Law / Advogado
Dlm2 Advogados Associados.
www.dlm2.adv.br

The US income taxation law imposes taxes on the American citizen’s worldwide income, regardless of place of residence or location where income is earned. By contrast, foreign corporations and foreign mutual funds cannot be considered American income sources insofar as they are not American citizens or entities.

As a result, most of the American income sources have been under control of these companies located abroad and mainly situated in tax havens. However, over the years the IRS policy has become much more strict than it was in the 80’s. While Americans holding their money abroad structured creative forms in order to defer US income tax, the IRS was working on innovative ways to obstruct such far-reaching deferments.

Today, there are several tax rules regulating capital in offshore companies. These rules reach out to Americans citizens and American companies beyond the United States’ boundaries, but now it is even worse because such rules set up special mechanisms for anti-deferment. Although companies can withhold for a while distribution of dividends in order to take advantage of the long-term capital gains rules in US, these special rules, even in the absence of distribution, can levy tax income on retained earnings.

There are six antideferral regimes, each one directed at different businesses structured abroad.

These rules are located in subpart “F” income, and they are the following:
1. Foreign personal holding companies (FPHC) - sections 551 to 558;
2. Controlled foreign corporations (CFC) - sections 951 to 964;
3. Foreign investment companies (FIC) - sections 1246 to 1247;
4. Passive foreign investment companies (PFIC) - sections 1291 to 1298;
5. Personal holding companies (PHC) - sections 541 to 547;
6. Accumulated earnings tax (AET) - sections 531 to 537.

SENTENÇA: CONTRATOS FIRMADOS EM DÓLAR

PUBLICAÇÃO NO DJ-TJBA, DATA: 03.08.2009.
PROCESSO Nº 14003975571-9.
AUTOR: Disbemil Distribuidora De Bebidas Milagres Ltda.
Réu: Banco Sudameris Arrendamento Mercantil Sa

SENTENÇA: "Despacho: Pelo exposto, JULGO PROCEDENTE a ação para declarar como abusivas as cláusulas contratuais que estabelece a taxa de juros superior a 12%, a capitalização dos juros, bem como o índice de correção monetária pelo dólar e determinar a Revisão do Contrato, para que seja observada a incidência de juros remuneratórios no percentual de 12% ao ano e o INPC como índice de correção monetária, bem como declaro a nulidade da cláusula que estabelece a VRG, convertendo-o em contrato de compra e venda a prestação e que a multa moratória deverá ser cobrada no percentual de 2% sobre o saldo devedor corretamente calculado, recalculando-se as prestações avençadas pelos indicativos aqui determinados, cujo pagamento das parcelas contratadas, serão calculadas com base no INPC. Condenar , ainda, o réu ao pagamento nas custas processuais e nos honorários advocatícios, que arbitro em 15% (quinze por cento) do valor da condenação atualizada, levando-se em conta do grau de zelo do profissional , o tempo exigido para o seu serviço e a complexidade da causa, nos termos do artigo 20 § 3º do CPC. P.R.I."

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We are looking forward to meeting people interesting in law firms associations and companies ventures in order to operate in Brazilian energy and mining sectors as well housing market.

Also, we are focusing on small and middle companies and law firms interest in synergy, as a result of associations to other companies and law firms to achieve better results in Brazilian Market.

Please, feel free to contact us at info@dlm2.adv.br and we will be delighted to send further information about our Law Firm.

German Legal Culture and its influence in the world

German Legal Culture and its influence in the world

Written by Fabiano Lins
Attorney at Law / Advogado
Dlm2 Advogados Associados.
www.dlm2.adv.br

The German culture sohuld be investigated in its minimal details due to its importance in the criminal law world. Brazilian criminal approach as was aforementioned, has been influeciated directly by the German criminal law culture. During the time that the German philoshophy was introduced into the Brazilian law system, there were just a few opositors to the application of the German analysis to the crime. The fascination that German criminal scient created worldwidely, not only reachead out some Europeans countries that make boarder with Germany, but also it made and has made sucssecss beyond Germany limited boarders. Brazil as many countries in Latin American has been adopting German criminal analysis and they have been taking advantages from the inumerous democratic safe-guards that compose the german criminal law. These safeguards are embodied in all over German crimianl system of law. They can be pinpointed on its criminal law and far-reaching criminal culture and principles.

One of the greatest and unquestionable portions of the German criminal law system includes its general part (Straftatssystem). This section constitutes a great and distinctive protection as to the human liberty because there is in its reasoning a set of ideas that formalistically turns the attention of the lawyers and judges to a series of legal thoughts necessarliy imposed to find out whether the alleged perpetrator committed the crime.

The general part of the German criminal law sets the systematic philoshopy that shall be applied to the specific part. The straftatssystem idealized by the Germans is also a set of substantial norms that adopts a specific methodologic process in order to analyse each crime in abstract and real ocurrence manner. The Model Penal Code in US adopted similar idea introducing the “element analysis methodology” to its body of articles. But for the German it does not only represent a methodologic analysis reflected on each type of crime in study, it representes also philoshophical and cultural values deeply ingrained in the roots of the German society. In order words, the “element analysis” in the Model Penal Code in US and the Brazilian Penal Code (general part) has a pratical conotation that limits the spectrum of knowleged to the practical application of the straftatssystem. However it does not mean that the practical application of the “general system for structuring criminal analysis” has no use. Differently, the German criminal system was conceived for a worldwide application adapting its nucleos meaning to diferent contexts.

Thus, the basic elements of the general part have to conform to social values of each country that decides to apply the German structure. Professor Wolfagang explains it citing Strafrecht in his analysis over the subject :

“One further point about the term System must be made. The Straftatsystem is not to be thought of as a system of criminal law in the sense that one might speak of a "philosophical system"﷓i.e., as a theoretical or metaphysical construct accounting for a particular sector of thought or reality. This is not to say that German criminal theorists have not utilized the Straftatsystem as a central feature of comprehensive accounts of German cr iminal law. They have. Indeed, as noted above, most texts on the "generalpart" of German criminal law are organized around the basic features of the Straftatsystem. Moreover, as this article contends, the general system for analyzing criminal acts does reflect a constellation of values connected with the ideal of rule of law (Rechtsstaatlichkeit). Conceivably, in an age more conducive to philosophical system building, a criminal theorist might attempt to construct a system embodying these values. The point for present Purposes, however, is that Straftatsystem is to be thought of as a practical, systematic method for structuring analysis of liability for criminal actions, rather than as some particular thinker's philosophical systematization of criminal law.”


As result, each country has to frame the German legal values to its particular context, and the process in order to make this happen is called transplantation of legal values. This transplantation can occur for different kind of reasons.

Sometimes, there are explanations based upon history and some other ocasions only a selection made by the so-called “donated country”. For instance, one interesting historical method of legal transplatation is the imposition of one’s country legal culture over other country the method used is simply the application of power over the weakest country. There are many examples of this usage of force to make countries subdue under pression to an accptance of certain legal culture. The Roman Empire and the Napoleonic conquest over the Europe is a great example of legal imposition. Historically, there are other types of legal transplant less intrusive, but they remain in such way a legal culture imposition. One example, it is the historical relation between colonies and colonizers.

The legal transplat that we are interested in the case of criminal law, is the legal transplant made by choice. This happens when a country decides to import, independently of any kind of pressure, a legal rule or code. One of the main reasons for that is the attempt of undeveloped countries to reach out developed countries through the process of legal culture importation.

In the Brazilian case what occurred was the second line of thought. In Brazil, the modern penal code is totally based upon the German criminal doctrine and principles. Peharps, what happened in regart to the Brazilian accptance was not only a chance to use a well-developed german criminal law, but also the respect and well-recognized value of German criminal ideas. In that sense Alan Watson says that once one system is regarded with sufficient respect, its rules will be spread out all over the world even if its particular rules of law is innefficient or inappropriate. In certain extent, the Brazilian adption of the German criminal system works well, but there is a natural lack of comformity of these ideas as to the Brazilian particular cultural elements. One example, it is the indiscriminatory utilization of the German safeguards towards human right of liberty in order to create a great deal of impunity. Those facts cannot be discussed at this moment due to its complexity, yet the consequences of this reality can be envioned through some decision handed by Brazilian judges and incredible arguments utilized by lawyers twisting the original source of ideas.
For German law, the crime must have three elements that consttitutes essential basis for possible punishment of an alleged perpetrator. The German crime doctrine adopted this three-part test to verify whether the agent conduct is punishble or not, and also to determine an imposition of those elemnets over the facts. Consequently, the criminal doctrine has molded each of the elements in a logical association of reasoning to reach a punishable crime; hence, without one single element, there is no crime. Wolfgang on his dissertation about the elements of the crime says that “whatever the governing code provision may be, every criminal act must be wrongful and culpable conduct that conforms to the definition of the offense.”

Therefore, in order to occur a crime, the agent’s conduct should (1) fulfil the statutory definition of an offense; be against the values protected by the legal system (wrongful); and, must be guilt (cupable).

In Brazil, the same rule is followed: the fact occurred has to find compliance with prior defined law. The Brazilian law adheres to the doctrine of nullum crimen, nulla poena sine lege scripta. No offenses shall be punished without a prior written law. This principle is the threshold for verification of crime existence because it underscores the importance of the first element in the crime analysis (tipicidade).

Therefore, the abstract study of the statutory provision in light of the general system (straftatsystem) constitutes key element for a successful criminal thinking.

--------------------------
NOTES:

1. Naucke, Wolfgang, “An Insider’s Perspective on the Significance of the German Criminal Theory’ General System for Analysisng Criminal Acts.” Brigham Young University Law Review, 1984. at page 307.
2. See Naucke, Wolfgang, note supra_at 306
3. See Naucke, Wolfgang, and note supra_at 307, citing E. Schmidhauser, Strafrecht: “ Allgemeiner Teil”, 3d ed. 1981, footnote.
4. See Merryman, John Henry: “ Convergence and Divergence of the Civil Law and Common Law”. The Civil Law Tradition: Europe, Latin America and East Asia, Comteporary Legal Education Series, 1994 at page 21.
5. See Watson, Alan: “Society and Legal Change”, The Civil Law Tradition: Europe, Latin America and East Asia, Comteporary Legal Education Series, 1994, at page 47.
6. See Naucke, Wolfgang, note supra_at 311

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Jury Trials

Written by Fabiano Lins
Attorney at Law / Advogado
Dlm2 Advogados Associados.
www.dlm2.adv.br

______________________

Introduction:

From time to time we have heard that someone is about to be sentenced in a jury trial. What could have possibly happened to a man or a woman to put him or her in the situation of being judged by the society in a so-called jury trial? Our first thought as civilians in the Brazilian judicial system is that it must have been a crime. Moreover, we realize as professional lawyers that it must have been a crime against life such as a homicide, infanticide, assistance or inducement to a suicide, or abortion.

In Brazil, as opposed to what outside viewers possibly think, the jury trial has been utilized frequently to prosecute and sentence those who break criminal laws. The idea of single judges solely trying cases in Brazil does not comport with the reality. Although Brazil, as part of the civil law system, uses more often bench trials, criminal cases tried in a jury trial fashion represent a large number of sentences pronounced during any given year. In other words, the jury trial in Brazil has been used for restricted purposes, yet it has represented a no less important role in our judicial system.

Important cases have been decided by jury trial in Brazil and these certainly include cases that the international community has not yet forgotten. One example was “the massacre of Candelaria” in Rio de Janeiro, a place where poor boys and girls were killed by the police. The reasons for the slaughter consisted of the macabre deal between merchants of the neighborhood and the police guard to oust and eliminate mendicants and teenagers on drugs who were negatively affecting the commerce of the area.

Then, to have the whole place cleansed of traffic dealers, drug dealers and mendicants, the Rio de Janeiro police executed seven people ranging from 11 to 22 years old. This particular case was considered outrageous in the Brazilian society and the international media covered the entire story for years. Moreover, a jury panel tried the Candelaria case and some of the policemen involved were convicted of the crime of murder and sentenced to more than 15 years in prison without right to parole.

Another case called “the massacre of the Eldorado dos Carajas” was tried in a jury trial courtroom and today is in the appellate court pending for decision. The case also involved policemen as the authors of the crime where 19 people were killed. The facts showed that the governor of Pará (a north Brazilian state) ordered the police to unblock a barricade formed by landless people (sem-terras) on the PA 150 state road. The protestors blocked the road and threatened with sticks, knife and guns anyone who tried to pass through the barricade. The police abused their authority and killed not only armed people, but also innocents that were just making their protest against the bad distribution of land in Brazil. The international media covered the case and the result was that the Brazilian government has been accused of a criminal charge against life brought in the International Human Rights Tribunal where the case still pending.

In contrast, jury trials are used more frequently as a resort to solve criminal and civil conflicts in the society in the United States, which is recognized by the rest of the world for its jury trial system. There are many criminal cases that have turned international media attention to US criminal trials. For example, the prosecution of OJ Simpson, which was one of the most famous criminal trials in the US, was broadcast to the world in detail. The results obtained in the end of the trial finding OJ not guilty for the double murder nevertheless did not convince the American people and the world of his innocence.

However, US criminal jury trials are not only reputable for unconvincing decisions; in fact, many of the criminal scholars think that criminal trials usually achieve legitimate decisions that a single judge would probably not have sufficient sensibility to interpret the facts upon the basis of actual circumstances. They say that the jurors are more inclined to a better analysis of the facts based on their life experiences. In fact, US criminal trials are effective and often send a clear message to the society of what criminal justice is about.

Brazilian criminal trials also are considered by the scholars to be a great “tool” against the spread of crimes among the Brazilian society. They think that society, when called on to participate in jury trials, tends to trust more in justice, which transforms jury trials into an efficient mechanism of crime prevention.

Thus, the importance of jury trials in US and Brazilian societies is without a doubt greater than an unaware fellow can possibly tell about it. Jury trials are so important that they are protected and demanded by the American and Brazilian Constitutions. They are a right entrusted to the society and exercised by the people when judging their equals in jury trials. Jury trials are no less precise or relevant in terms of the quality of justice than bench trials. There are a number of procedural laws, principles, and specific rules that qualify jury trials to the same level of any actual justice practiced upon the law.

The procedures involving criminal trials in Brazil and the US are very peculiar and distinct from other forms of procedures even when compared to US civil trial procedure. The procedural steps are designed to provide a fair trial by adopting important features to fit lay persons into the court system, such as jury selection, and particular principles guiding the trial pace and due process. Criminal jury trials in Brazil or in the US praise the same purposive objective: justice.

However, sometimes justice is not attained, but this is not an issue intrinsically related to jury trials. Any kind of criminal procedure is susceptible to mistakes and they are not exclusively found in jury trials.

Our study is limited to some important differences and convergences between Brazilian and American criminal jury trial systems concentrating on several particular features such as pre-trial procedure, trial procedure and jury selection process.

Right to a Jury Trial

Brazil and the United States have the right to a jury trial ensured by their Constitutions. However, these rights are somewhat different as encountered in both Constitutions regarding the extension and possibility of waiver.

In the US, the right to a jury trial is guaranteed by the Sixth Amendment which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by a impartial jury of the State and district wherein the crime shall have been committed….”

The defendant nonetheless may waive his right to a jury trial and have his judgment rendered by a single judge. This election for a bench trial is not prohibited by the US Constitution and it is ready for use depending upon the defendant’s desire, at least in a great number of state jurisdictions.

The right to a jury trial extends to the majority of criminal matters with only a few exceptions, such as crimes perpetrated by youths, yet most of the states have enacted statutes providing jury trial for juvenile delinquency. For example, a teenager named “Brazill” was recently condemned to life imprisonment in a jury trial decision in Broward County, Florida due to the murder of his high school teacher in the school hallway.

In Brazil, the right to a jury trial exists, but no waiver is permitted. The Brazilian Constitution states in Article 5°, XXXVIII, that all crimes against life shall be tried in jury trials. This article stands for the rights and guarantees of the individuals and the criminal jury trial is under the aegis of this categorization. Thus, the criminal jury trial is the legitimate instrument of democracy and liberty when the people judge their equals.

The Brazilian Criminal Procedural Code regulates in Article 74 caput and § 1°, which are the crimes against life, and states them essentially as homicide, infanticide, inducement or help to some other suicide and abortion.

The Framers of the Brazilian Constitution did not intend that the crimes against life should be the only ones tried in jury trial courts forever and that no changes to include other type of crimes would be permitted. At any time, the number of crimes listed to be judged by jury tribunals can change; everything depends upon the willingness of the legislator. However, the crimes against life shall not be erased from that list without changes to the Constitution. This interpretation is fully accepted by the Brazilian Supreme Court.

Some Differences Between Brazil and US: before and during the trials

In the US, before the trial, there are pre-trial procedural matters to prepare the accused for a fair trial, which we are going to analyze since the formal accusation in both jurisdictions. To initiate a formal accusation, a series of steps has to be followed.

The very first step is the appearance before a judge for analysis of the “complaint” against the defendant. The single judge shall look to the complaint and verify whether there is probable cause to require the accused to answer formal charges before a grand jury or judicial officer, depending upon the state’s provision. The second step is the formal charge procedure itself when a grand jury or judicial officer, to indict the defendant or not, shall hear the accused and the proof against him. Before the second step, there is a point at which the prosecutor has the opportunity to dismiss the charges against the defendant, depending upon substantial facts found during the investigative period.

The grand jury or the judicial officer shall look and reproduce all evidence necessary to sustain a formal charge against the accused and, in order to have their task accomplished, they may ask for discovery, including testimonies or material evidence at issue. The grand jury is a panel of usually 23 people from the community that may vote for the indictment of the accused, transforming him into a defendant.

The grand jury can be substituted by a preliminary hearing before a judicial officer. There is no constitutional obligation for the use of a grand jury for all criminal matters; consequently, states in the US use a judicial officer to designate a formal indictment. The grand jury apparently has more power, due to its constitutional characteristics to investigate additional evidence and compel testimonies under oath, than the judicial officer.

Thus, the probable cause is checked twice before the trial. First, it is quickly observed by a single judge and subsequently analyzed in more detail by the grand jury or judicial officer. Indeed, the prosecutor can, at any time before the trial, drop the accusations if the probable cause was not satisfactorily reached.

In Brazil, the approach is very different from the American pre-trial procedure. There is no jury or judicial officer to propose an indictment.

However, the first step to reach an indictment is very similar when the judge checks upon the facts brought by the prosecutor to verify whether the action has “minimal requirements”(not only probable cause) to proceed its normal course. At this stage, the judge can simply dismiss the action because it does not have “generic” or “specific” conditions to proceed.

Some specific conditions would be lack of authorization from the Congress to proceed in an action against federal senators or deputies, or any gross substantial error in the petition that make it void, for instance. The generic causes are summarized into three categories: the facts visually do not consist in crime, the prosecutor has no authority to propose such action or there is no probable cause.

After analysis of the “minimal requirements” inquiry, if there are still indicia that the accused could have possibly committed the crime by the facts, the judge shall initiate the second procedural phase for indictment. It is necessary to advise that the criminal jury procedure is very peculiar and totally different from other criminal procedural forms. This phase of the procedure is a mixture of procedural and substantive challenges. It is in reality a trial, but it is not yet a jury trial.

For the American attorneys, it is totally understandable that they do not perceive any intrinsic relationship between the US and Brazil on that matter because there is no possible close explanation to the American jury system that could conceivably be drawn.

In a few words, this procedural stage is a specific time during the proceedings to certify whether or not the defendant can be sent to a jury trial and even absolve him, depending on the facts presented. Thus, a single judge shall provide four different decisions upon the case:

I – Jury trial;
II – No jury trial;
III - Summary absolution;
IV – Declassification of the crime.

The first decision happens when the judge finds out that the prosecutor has achieved sufficient evidence to convince the court that one crime against life was possibly perpetrated and the defendant has not satisfactorily shown inappropriate jury trial procedure or insufficient evidence for any kind of criminal prosecution. In this occasion, the judge orders that the defendant be judged before a jury when all the evidence shall be reproduced once again but now for the jurors’ appreciation of the facts.

The second type of decision (no jury trial) occurs when the judge reaches no conclusion of whether the alleged perpetrator committed one of the crimes against life listed on the aforementioned Procedural Criminal Code. This decision does not decide the case on the merits; thus, the prosecutor can try the case de novo when he has some other evidence.

The third decision occurs when the judge, based upon clear evidence, has either not considered the defendant the author of the crime or the evidence is clearly undisputed to infer that there was no crime committed (i.e., lack of probable cause).

The last type of decision is very interesting and sometimes causes a jurisdictional problem. The judge can sort out the case by finding that the evidence presented consists of a possible crime, yet he finds that the jury trial jurisdiction is not appropriate because the crime committed was a crime other than a crime against life. Consequently, the judge sends the case to another jurisdiction, which can reject the determination of the prior judge. In such situation, a great problem of jurisdiction can arise when both jurisdictions involved do not accept the case.

However, the problem is often solved by common agreement between the judges or, if that consensus was not achieved, a superior court must decide.

The Brazilian pre-trial procedure also has a double check on probable cause for criminal action by the judge. The prosecutor can drop the accusations, but in the Brazilian criminal procedure, only until he has filed the petition. In the American counterpart, the prosecutor can drop the accusation until the trial actually begins. By the way, in Brazil the formal indictment is prepared after the judge’s decision to proceed with a jury trial.

The Jury Trial: overview.

In the US, the criminal jury trial is based upon the adversarial system, but in criminal cases there is an important difference from civil cases with regard to the role of the prosecutor. The defense attorney bears the responsibility of a vigorous representation, yet the prosecutor has two duties to observe: one as attorney of the state and the other as minister of justice. As the latter, the prosecutor has an interest in protecting the society against unfair prosecutions, which means that criminal cases are based on an adversarial system, but not as adversarial as in civil cases.

For that reason, the Brazilian criminal trial seems more convergent than divergent from the American system. During the trials, the Brazilian prosecutor has the same two obligations as his American counterpart: attorney of the State and active protector of justice. However, one of the major differences between the US and Brazil consists of the role of the judges during the trials.

Brazilian judges have an active participation in formulating or adding questions to the defendant or prosecutor inquiry. During the trial, the American judge probably has a more passive role in hearing cases and deliberating about interlocutory motions or objections that may occur during the trial proceedings. However, for example, the American judge in criminal cases may ask questions in a pre-trial evidentiary hearing.

In jury trials, US attorneys and prosecutors are permitted to formulate direct questions to the witnesses and cross-examine them. In contrast, in Brazil only direct examination is permitted, yet those questions have to be addressed to the judge and he addresses them to the witnesses. The trial in Brazil, as in the US, is totally based on oral arguments by the parties, prosecutors and defendant attorneys.

In Brazil, the defense attorney and prosecutor have no right to present objections or interlocutory motions during the trial. However, there are other “tools” available to the parties, either through a “specific appeal” before the trial (recurso em sentido estrito) or also through habeas corpus, depending on the situation presented. There are other recourses available such as an appeal to the upper court (asking for a new trial) or a “special appeal” in the case that the appellate court in its decision disrespects any federal law. There is also a strange appeal to the upper court level, called ‘ex officio’ (before the trial), when the judge by law is obliged to appeal from his own decisions in case of summary absolution (see item III on page 9).
Jury Trial Selection: overview.

In Brazil, the jury system composition is: a judge called “President-judge” and “seven jurors” chosen from a list of 21 reputable citizens or naturalized persons. Those persons actually form the so-called “Sentence Council”.

Annually, the president-judge organizes a “general list” in the community wherein the number of persons varies from jurisdiction to jurisdiction. Normally, the judge chooses more than one hundred. There are some state courts that organize a list of a thousand. It is necessary to explain that the “general list” is the major list where the 21 persons are chosen though a lottery process by the President-judge.

The 21 people are picked from the “general list” are necessary to perform a “jury trial session” when 7 jurors are chosen to judge the cases. However, that number can be reduced to a minimum of 15 people and the jury trial session would not be invalidated.

The jury trial session occurs during a determined period of time that usually runs in one or two days when several cases may possibly be tried together with the same 15 to 21 listed persons. The President-judge can establish a “supplementary list” in case that the number of listed prospective jurors may drop below the minimum number required by law.

In Brazil, the 7 jurors shall be chosen randomly from a list of 21 persons, yet prosecutors and defendant have two types of challenges to strike people from the jury:

(1) Challenges for cause
(2) Peremptory challenges

The Brazilian jury selection permits that prosecutors and defense lawyers to peremptorily strike out three jurors from the list. No cause is necessary to this challenge.

However, for the challenges for cause, it is necessary show an actual bias or partiality from the jurors. There is no limit for such challenges.

In the US, as opposed to Brazil, the peremptory challenges are not limited in most of the state jurisdictions, yet the judge can determine limits if he wishes. Another interesting difference is that US attorneys, prosecutors and judges together choose a list of prospective jurors (ranging from to 16 to 40 prospective jurors). In contrast, the President-judge in Brazil is in charge of selecting randomly from the general list 21 prospective jurors. In the US, twelve (12) jurors serve as actual jurors. In Brazil, only seven (7) jurors decide cases though.

Conclusion:

There are several differences between American and Brazilian jury trials, but the purposive objective of both systems is equally achieved: provide a fair trial even if the fairness is perhaps not accomplished.

Jury trial system is more than a bunch of rules selected to the proceedings; it is a right ingrained in the society when the people judge their equals on important issues such as homicide. Murder, for instance, is a disruptive fact that provokes an outrageous sensation into the communities that have suffered such misdeeds.

To the people should be given the right to judge whom has broken the peace and killed their equals. It is not a religious prayer, but otherwise a right to the people to face other human beings and apply the community social values to the facts. In so doing, the community can reestablish peace in their minds and hearts, knowing that justice is not matter of an abstract law, but a concrete object in their hands.