In countries founded on the rule of law, the Judiciary plays a central role, especially because judicial decisions can rule out structural illegalities and act positively to diminish differences arising from material, cultural, and monetary issues. In this text, we intend to discuss the experience of access to justice provided by the Brazilian Public Defender's Office, ensuring the safeguarding of the fundamental rights of poor and marginalized populations, essential to realize justice in local context with or without the judiciary power.
By invitation from the Just Society Project of the University of Southern Denmark, I had the opportunity to deepen my studies about access to justice provided by the Brazilian Public Defender's Office. Besides being the subject of my PhD in Sociology, at the University of Brasilia, I have been working as a public defender since 2008, in various areas, such as criminal, family, civil, jury in crimes against life, and special courts for domestic violence. Besides my personal experience, a detailed knowledge of this service, from theoretical and empirical focus, it is essential in the search for institutional and social improvements in Brazil, especially if we consider that its main target audience (families with monthly income of up to 694 €)[1] comprehend about 88% of the Brazilian population, more than 187 million people[2].
The Brazilian Public Defender's Office aims to provide legal assistance to economically poor people and socially vulnerable groups as a strategy to reduce social inequalities and ensure the effective defense of their rights in a broad sense. This vulnerable social group will due to ‘their age, gender, physical or mental condition, or by social, economic, ethnic and/or cultural circumstances, territories, spaces/locations (peripheries, slums, marginal urban areas for example) find special difficulties in exercising with fullness before the Justice System the rights recognized by the legal system.’[3]
From the 1970s and 1980s, Latin America has witnessed the phenomenon of constitutionalization of procedural guarantees, consisting of the insertion of provisions relating to procedures and procedural rites in the Constitutions[4]. These guarantees were inserted into the constitution to ensure greater respect and effectiveness to procedural rules. In Brazil, this type of provision appeared first in the 1988 Constitution when the procedural right of access to justice was constitutionalised.
More broadly, access to justice can be understood as the knowledge and defense of one's rights. This can be given through education in rights; the provision of extrajudicial mechanisms of conflict resolution; the possibility of going to court without the intervention of a lawyer, in certain cases; and also, by the intervention of the Judiciary in conflicts. For the latter, the Brazilian Constitution provides free justice for the poor[5] and for the Public Defender Officer (PDO). Qualified in law, the PDO enjoys legal guarantees for the free exercise of their function to provide explanations, legal guidance as well as also access to the judiciary for the poor people and socially vulnerable groups. Accordingly, the Public Defender's Office both defend rights in court and work to raise awareness of rights.
The type of judicial assistance provided by the PDO is reflects, to a large extent, the dogmas of legal positivism and the state legal monism, such as the identification between the Law and the positive law, wich is emanated by the State, and, in turn, the State is the only one with the right to say the valid law. The closure of the positive law imposes a generic norm for everyone, in all contexts and does not create valid distinctions due to other social criteria, assuming that all conflicts of interest can and must be resolved by the Judiciary. Comparing these assumptions with the reality on the ground, there are potential challenges to PDO’s effectiveness and reach as highlighted by the following questions:
(a) is access to the Judiciary sufficient to break all violations, with higher effectiveness than other non-Estatal forms of intervention?[6];
(b) does the technical-bureaucratic logic of the operators of the law potentialize the distancing of those who seek this demand, on several occasions?
(c) do the criteria adopted for the selection of the target public for legal aid services, as well as the material limitations for the provision of this service, limit the possibilities of intervention?
A key purpose of the PDO is to provide legal aid to vulnerable social groups. However, to understand the scope of this service, it is necessary to go beyond an access to justice that is only formal, aimed at acting in judicial proceedings. The formal concept of legal aid, when contrasted with reality, shows an almost exclusive dependence on the formal responses of the Judiciary, as well as its performance, legitimacy and capacity to stop all violations by the inexorable application of norms. At the same time that it diminishes the relevance of other political, social, cultural and legal spheres, including those that could influence the defense of rights[7].
Besides the exemption from costs and fees, and the access to means to go to the Judiciary, which are still safeguarded as necessary measures to the economically needy, it is necessary to ensure Justice through other forms different from judicial actions, such as counseling and legal advice; to cover the pre-judicial conflicts; to turn to other mechanisms to reduce structural inequalities, such as education in rights and popular practices of inclusion of the less favored; anyway, to act directly in the communities, searching for the development of their own notion of rights and what is needy to live in the sense of mutual respect of the law. These are some of the multiple abroad played by Brazilian Public Defender's Office.
The large target audience of the Brazilian PDO, which operates in all 26 Brazilian states and in the Federal District, and the possibility of broad intervention, including the articulation of public policies for social inclusion and reduction of illegalities, emphasizes the relevance of its function in combating inequalities. Its core of action is not limited to lawsuits. In addition to the filing of lawsuits, community actions[8] materialize a level of access to justice that has proven efficient in ensuring the rule of law at the local level and without the need for legal action.
Thus, those assisted by the Public Defender's Office, in addition to not being obliged to pay fees[9], that could compromise their income and the care of their own family, obtains legal support during its judicial actions and legal counseling. In addition, the PDO will act for reduce structural inequalities, in the legal and political-social fields, with: projects of education in law in the communities; monitoring of the procedures of legislative processes; intervention in collective actions of interest to the excluded groups. Finally, through a broad and comprehensive action.
Certainly, to perform all these activities, there are financial limits, such as the value available for hiring public defenders and support staff, as well as local difficulties, such as accessibility to the PDO’s service centers, the ignorance of the population about the possibilities of PDO’s expertise. These are some obstacles visualized daily that require special attention to expand access to justice provided by the PDO.
In conclusion, based on the researching that I'm carrying out about the theme 'access to justice for socially vulnerable groups' and considering the Brazilian legal system, which emphasizes conflict resolution through the intervention of the Judiciary, the Brazilian Public Defender's Office has the potential to act substantially to reduce inequalities and to expand rights education for vulnerable populations, providing access to justice by filing and monitoring civil and family lawsuits, in criminal defenses and through extrajudicial measures, ensuring that structural conditions cannot be a excluding matter to obtain justice, with or without the Judiciary intervention.
30 September 2022
Alberto C. Amaral was a visiting research fellow at University of Southern Denmark. Alberto is a PhD candidate in Sociology (University of Brasilia, Brazil), and holds a Master’s in law (UniCEUB, Brazil). He is a Law professor (UniProcessus)and Public Defender at Brazilian Federal District Public Defender’s Office.
[1] This amount is currently equivalent to 3 (three) Brazilian monthly minimum wages.
[2] Source: https://pesquisanacionaldefensoria.com.br/pesquisa-nacional-2020/analise-nacional/
[3] ASSOCIAÇÃO INTERAMERICANA DE DEFENSORES PÚBLICOS (AIDEF) et al. Regras de Brasília sobre acesso à justiça das pessoas em condição de vulnerabilidade. Conferência Judicial Ibero-americana. Source: https://www.anadep.org.br/wtksite/100-Regras-de-Brasilia-versao- reduzida.pdf.
[4] BARBOSA MOREIRA, José Carlos. “A constitucionalização do processo no direito brasileiro”, in Estudos de Direito Processual Constitucional: homenagem brasileira a Héctor Fix-Zamudio em seus 50 anos como Pesquisador do Direito. FERRER MACGREGOR, Eduardo; LELO DE LARREA, Arturo Zaldívar. São Paulo: UNAM-Malheiros, 2009; FIX-ZAMUDIO, Héctor. Constitución y proceso civil en Latinoamérica. Ciudad de México: UNAM, 1974; OVALLE FAVELA, José. Garantías constitucionales del processo. 3.ed. México: Oxford, 2007; PICÓ I JUNOY, Joan. Las garantías constitucionales del proceso. Barcelona: J. M. Bosch, 1997.
[5] Consisting, in general terms, of the non-obligation to pay certain judiciary costs if the poor person needs to file a lawsuit.
[6] Socio-legal analyses on the "crisis of justice" point out, besides these, other problems that result from the primacy of the focus on the Courts and the dogma of the sentence as the only legitimate truth, at the same time that they bet on an agenda of reforms (SANTOS, Boaventura de Sousa. Para uma revolução democrática da Justiça. 3a ed. São Paulo: Cortez, 2011).
[7] The proposals of Brazilian legal pluralism, such as alternative law, insurgent law and the Law Found on the Street, by visualizing the existence of other sources that establish the Law, not only the state one - as is the keynote of legal monism -, emphasize the existence of other possibilities of intervention that do not depend exclusively on the State in all its conformations (SOUSA JUNIOR, José Geraldo; SOUSA, Nair Heloísa Bicalho de; RAMPIN, Talita Tatiana Dias; AMARAL, Alberto Carvalho. O Direito Achado na Rua: possibilidades de diálogo com a Defensoria Pública e de intervenções em benefícios de grupos sociais vulnerabilizados. Journal of Brazilian Federal District Public Defensorship, vol. 1, n. 2, p. 10-17, dez. 2019, p. 11).
[8] Such as the provision of education in rights provided by the Training Course for Popular Defenders of the Federal District, which seeks to instruct leaders of disadvantaged communities on essential legal matters; the Conhecer Direito (Knowing the Law) project, which expands knowledge of the law to public high school students; the Conhecer Direito Acessível (Knowing Accessible Law), which provides basic legal instruction to deaf people, among other activities
[9] The fees relate, for example, to the entry of the proceedings, filing of appeals, payment of expertise, as well as the conviction to bear the fees and costs of the proceedings for the defeated party in the lawsuit.