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Overview of Brazil's Legal Structure for Animal Issues
Lane Azevedo Clayton (2011)


I. Introduction

Brazil, the fifth largest nation in the world, contains a vast variety of ecosystems ranging from the Amazon rain forest to the Pantanal wetlands. The Country is a rich source of exotic species including brilliantly colored insects, fish, and birds such as the endangered blue macaw as well as jaguars, alligators and giant tortoises. 

Following the global tendency of protecting the environment, Brazil’s Federal Constitution of 1988 dedicated an entire chapter to the protection of the country’s fauna and flora, and established the legal standards for environmental protection. Ten years later, the Environmental Crimes Law was enacted to complement the Constitution and impose criminal liability on environmental crimes. The law also reached out to deal with cruelty crimes against both domestic animals and wildlife.

The Brazilian Environmental Law system is extensive at all levels of government including federal, state, municipal laws and regulations, all concerning proper environmental conduct. However, this article focuses primarily on the federal level of law, notably the Environmental Crimes Law (Law n.9.605/98).

 

II. Brazil Federal Constitution

From 1964 to 1985, a military government ruled Brazil. During Brazil’s democratization process, a constitutional convention was elected to draft a new constitution. The new constitution was promulgated in 1998, and it assigned a special chapter to environmental protection, which was created to conform to the terms and principles of the Declaration of the United Nations Conference on the Human Environment, held in Stockholm in 1972, and which Brazil was a signatory [i].              

The Article 225 of the Brazil Constitution states the right to an ecologically balanced environment to all people, including future generations; and, the duty for its defense is imposed on both the government and the community. Therefore, the Constitution confers jointly on the federal government, states and municipalities the authority and duty to protect the environment, to take action against pollution in any of its forms, and to protect the Brazilian fauna and flora.

In addition to the ecological concerns of this section of the Constitution, it is the State duty to protect the fauna, prohibiting any actions that would risk the animals’ ecological functioning, cause their extinction, or subject animals to cruelty. This last phrase gives authority to the State to deal with cruelty issues involving any category of animal.

 

III. Domestic Animals

The Brazil Constitution recognizes that animals have fundamental interests.  Based on the recognition of animals in the Constitution, the Brazilian Supreme Court has ruled so as to ban popular traditions that involve animal suffering such as cock fighting, and a tradition practiced in southern Brazil, known as “Farra do Boi” (the Oxen Festival). The Oxen Festival is a popular tradition that involves crowds of villagers brandishing weapons such as sticks, knives, whips, or stones, as they chase a ox through the streets while inflicting their blows upon the animal.  In 1997, the Supreme Court ruled in a public interest civil action against the state of Santa Catarina[ii]: “… although it is the duty of the State to guarantee to all people the expression of cultural rights, cultural expressions have to conform to the constitutional rule of the article 225, which forbid any practice that submits animals to cruelty. Therefore, the event called “the Oxen Festival” violates the aforementioned constitutional rule”. This Supreme Court ruling was an historic landmark in animal protection development in Brazil by recognizing that animals have the right to legal protection against suffering and mistreatment. It also reaffirmed the rights of animals to have their interests represented in court and safeguarded by the law of the land.        

To comply with the fundamental law of the State, Brazilian municipalities and states have passed a set of provisions for animal protection against cruelty and neglect. For example, the city of Sao Paulo enacted a law to impose affirmative duties on people with animals in their care (Law n.13.131, May 17,1993, available only in Portuguese). And the city of Rio de Janeiro banned circuses and shows that use performing animals, domestic or exotic, and restricted the ownership of such animals only to authorized zoos (Law n. 3714, November 21, 2001). The state of Rio Grande do Sul enacted a Code for Animals Protection  (law n.11.915, May 21,2003).

Regardless, animal exploitation is a very profitable industry worldwide and it is not different in Brazil. In fact, rodeos in Brazil are a million-dollar industry and a very controversial issue.  The dispute revolves around whether rodeos are considered a cruel treatment to animals. There were some trial courts decisions suspending rodeos in the State of Sao Paulo, understanding that rodeo is a practice that submit animals to cruelty. Indeed, the City of Sao Paulo banned rodeos in 1993, but in 1999 the State of Sao Paulo enacted a law regulating rodeos. In 2002, Brazilian Federal Congress has passed the law n.10.519 to regulate rodeos. The federal law requires a veterinarian at rodeo, prohibits electric prod, or similar device that can cause injury or wound animals. The penalties include fine and suspension of rights. However, this law is not effective in preventing injuries, the penalties are not severe enough to deter abusive treatment, and it is less likely to be strictly enforced. 

According to Brazilian Civil Code, domestic animals are considered personal property. They can be an object of commercial transaction and economic use. Because domestic animals keep their status as property, if they were abandoned, they would be considered res nullius and could be appropriated by anyone, including animal control agencies. Many municipal animal control agencies still use gas to asphyxiate stray dogs, cats, and horses. However, an animal advocacy group brought and won a public interest civil action against the city of Sao Paulo to implement the method of lethal injection to provide a painless method of killing stray domestic animals[iii]. Furthermore, in the case of harm or loss of a domestic animal, a private party can sue the violator to recover damage for a loss or injury of a domestic animal. Also, accidental or negligent actions can be prosecuted.  

The article 32 of the Federal Environmental Crimes Law is the provision that safeguards the animals from aggression and mistreatment. Before the Environmental Crimes Law, cruelty to domestic animals was considered a misdemeanor crime and the penalties were simple fines.  The article 32 of the Environmental Crimes Law prohibits the abuse, mistreatment, or mutilation of domestic or wild animals, including exotic animals, as well as domesticated fauna, which are wild creatures previously captured and tamed. The penalty applied for this crime ranges from 3 months to one year of imprisonment and fines. Although this provision is considered an improvement for animal protection, often the imprisonment penalties applied are substituted for community services or temporary restriction of rights[iv].

Further, the article 32 of the Environmental Crimes Law, in its first paragraph, forbids painful or cruel experiments on living creatures, even for teaching or scientific purposes, whenever there are alternative methods such as chemistry, mathematics, radiology, microbiology, or other methods that would prevent the use of animals in laboratory experiments. In both crimes described in the article 32, the penalty includes imprisonment of three months to one year and fines. Also, if the animal dies from the vivisection, the penalty applied is increased by one‑sixth to one‑third. So, when there is no alternative technique to substitute animal experimentation, the vivisection is permitted. Vivisection is regulated by the Federal Law n. 11.794 (enacted in 2008). Equally, this law prohibits vivisection without anesthesia and brings other provisions that require  “humane” treatment of animals. Vivisection is largely practiced in Brazilian veterinary and medical schools. In fact, many animal control agencies donate stray animals to veterinary and medical schools.

In addition to the Environmental Crimes Law, the definitions of abuse and mistreatment against animals can be found in the Federal Decree n. 24.645 promulgated in 1934 by the president Getulio Vargas, the decree established measures of animal protection against cruelty and mistreatment. The article 3 of the Federal Decree defines the acts of abuse and cruelty; the behaviors that are considered to be abusive and mistreatment of animals by the federal decree are, among others: 

 - Confining an animal in a cruel manner;

 - Overworking an animal;

 - To wound, injury or mutilate an animal;

 - To cause an animal to fight with another;

 - To train an animal by means of physical punishment.

Most importantly, crimes against animals need a clear and actual definition that is not provided by the Environmental Crimes Law.  As a result, a federal bill (Bill 215/2007, available only in Portuguese) was proposed to provide clear definitions of mistreatment and broad protection of animals, especially domestic animals[v]. But as of 2011 it has not been adopted.

The public prosecutor is the competent authority to prosecute crimes against domestic animals.

 

IV. Legal Status of Brazilian Wildlife

As for wildlife, the Environmental Crime Law (law n. 9.605/98) states that Brazilian wild fauna consists of native, migratory or any other species that have their biological cycle of life, or part of it, within Brazil jurisdictional territory and waters. Wild fauna are considered res publica  (public property), they cannot be appropriated, and their use is subject of regulation by the federal government. 

Brazil has banned the use of marine mammals in entertainment. And, according to Brazilian law 7.643/87, hunting whales and dolphins are forbidden in Brazilian jurisdictional waters, as well as any kind of deliberate molestation such the pursuit of animals with vessels. The disrespect of these laws can be punished with a 2 to 5 years imprisonment, fines, and the loss of the vessel.

Except for the state of Rio Grande do Sul, commercial, sport, and recreational hunting are prohibited in all Brazilian territory. The state of Rio Grande do Sul hunting law provide a list of animals which can be hunted, it does not permit trapping devices, and the hunting can not be commercialized.

The Environmental Crimes Law (law n° 9.605/98) was intended to complement provisions previously established by the Brazilian Federal Constitution. First, the federal law implemented criminal penalties in cases of actions or activities that may damage the environment, substituting criminal penalties imposed by multiple prior legislation, such as the Hunting Code, the Fishing Code, and the Forest Code. Next, the law provides for the imposition of criminal liability on the person, individual or legal entity that pollutes or degrades the environment, according to their culpability. Such liability is extended to managers, directors, and others members of a legal entity, whenever they do not prevent the company's criminal actions. The penalties for individuals and legal entities range from detention or confinement to restriction of rights, and fines. The courts decide the amount of the punishment according to the severity of the crime.

The crimes against the fauna are described in the first section of the chapter V that defines the crimes against the environment. Crimes against wild fauna as seen in the law are:  killing, hounding, hunting, capturing or using any fauna species without authorization or license.  The penalty is detention of six months to one year, and/or a fine. The penalty is aggravated if the crime is committed:

 - Against rare species or those considered endangered, even if only at the site of violation.

 - In the period in which hunting is prohibited

 - During the night

 - By abusing the license

 - Within a conservation unit

 - By using methods or instruments capable of provoking mass destruction

There are exceptions, and it is not considered a crime to kill an animal when it is carried out:

1. In the case of necessity, to satisfy the hunger of the agent or his family

2. To protect agriculture, orchards and herds from predatory or destructive action by animals, and a legal authorization had been issued by the competent authority

3. In the case of dangerous animals.

Other crimes set out in the law are:

- To inhibit species' procreation without authorization or license

- To modify, damage or destroy natural nests or shelters

- To sell, offer, export, purchase, keep, utilize or transport eggs or larvae of fauna species, as   well as products derived from fauna species without authorization or license

- To export the skin or leather of amphibians or reptiles without authorization

- To introduce species into the country without license

- To cause the death of aquatic species by polluting their habitat

- To fish using forbidden instruments or in forbidden seasons or areas

The Environment Crimes Law is more permissive than the prior law, the Fauna Protection Act (Law n. 5.197/1967), which was more severe in providing punishments without bail for crimes against the fauna. The Environmental Crimes Law considers most crimes against the environment a lesser offense. Therefore, imprisonments penalties (up to 4 years) are to be substituted for restriction of rights, such as community services, temporary suspension of rights, suspension of commercial activities, disbursement, etc. The exceptions to this rule are the contraband of amphibians and reptile skins, and to fish using explosives or toxic substances[vi].

Upon the verification of a violation, the products and instruments of the crime will be apprehended. Animals will be set free in their habitat or be given to zoos, foundations or similar entities, as long as they remain under the responsibility of qualified technical personnel. Other perishable products will have to be evaluated and donated to scientific institutions, hospitals, prisons and other similar entities. Non‑perishable fauna products and byproducts shall be destroyed or donated to scientific, cultural or educational institutions.

The public prosecutor is the competent authority to prosecute environmental crimes.

To successfully interpret the Environmental Crimes Law, it is necessary to apply supplementary laws such as the rules of the Brazil Criminal Code and the Brazil Code of Criminal Procedure, as well as to observe the provisions that are still in vigor, for instance, the Law for Fauna Protection (Law n. 5.197/67), the Forest Code (Law n. 4.771/65), etc.

 

V. Brazilian Institute for Environmental and Renewable Natural Resources (IBAMA)

The Brazilian Institute for Environmental and Renewable Natural Resources is a federal administrative agency and operates under the Ministry of the Environment.  The agency is responsible for policing and enforcing of federal environmental laws, and it oversees the use of renewable resources, and grant permits.

 

VI. Public Interest Civil Actions and Citizen Suits 

A. Citizen Suits – Under the Brazilian Constitution (Article 5, LXXII), any Brazilian citizen is entitled to bring a lawsuit against private individuals, corporations, or governmental entities for engaging in conducts that damage the environment (Citizen Suits Law n. 4.717/65)

B. Public Interest Civil Action - Not only public prosecutors, but also governmental entities, governmental agencies, and environmental protection advocacy organizations have standing to sue against conducts that damage the environment. (Public Interest Civil Action Law n. 7347/1985).

 

VII. Conclusion

The Brazil Federal Constitution promulgated in 1998 was a progressive step towards the protection of the environment and animals. The Constitutional provisions to protect the fauna e to prohibit cruelty to animals have been reproduced in many Brazilian states constitutions.

The Environmental Crimes Law was enacted to complement the Federal Constitution and to impose criminal liability for damages to the environment and fauna, prohibiting any conduct that cause pain and suffering to animals. The Environmental Crimes Law is a progress for animal protection in Brazil. However, the penalties are not severe enough to deter crimes against animals, and the law is not strictly enforced.

 

References

[i] Moraes, Alexandre (2000). Direito Constitucional (pp. 645). Sao Paulo: Atlas.

[ii] The Oxen Festival Case. Appeal to the Federal Supreme Court - Recurso Extraordinario n.153.531/SC. RT 753/101

[iii] Fórum Nacional de Proteção e Defesa Animal Vs. Municipio de Sao Paulo. 130 Vara da Fazenda Pública. Juiz Olavo Sá Pereira da Silva. Retrieved April 05, 2011 from http://www.forumnacional.com.br/quadros_realizacoes.htm

[iv]Levai, Laerte(2004). Direito dos Animais (pp.32). Campos do Jordão: Editora Mantigueira.

[v] Ricardo Tripoli, Brazil House of Representatives. Retrieved April 05, 2011 from http://www.ricardotripoli.com.br

[vi] Levai, Laerte (2004). Direito dos Animais (pp. 36). Campos do Jordão, SP: Editora Mantigueira.

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In 9th Salvador Criminal Court, Salvador, Bahia. Brazil (O9/19/2005).

Petition for a Writ of Habeas Corpus on behalf of a chimpanzee named, "Suiça" (n 833085-3/ 2005) (.pdf file - 138.60 KB).

Opinion for Suiça Habeas Corpus Petition by 9th Criminal Court (09/28/2005).

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