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Brazil and France will intensify judicial cooperation

The President of the Brazilian Federal Supreme Court (STF), Chief Justice Cezar Peluso, started on Monday (11) official trip to Paris and Venice. In the French capital, Minister Peluso met with President of the Constitutional Council, Jean Louis Debre, the vice-president of the State Council, Jean Marc Sauve, with Secretary of State for Justice, Jean Marie Bockel, the Minister Justice, Michele Alliot-Marie, and the director of the Ecole Nationale d'Administration, Bernard Boucault.

Starting official lineup in Paris, the President of the Supreme Court (STF), Minister Cezar Peluso, met last Tuesday (12) the President of the Constitutional Council of France, Jean Louis Debré. In the conversation, the two presidents held a comparative analysis of the constitutionality of the control system of each country. They also made an assessment of the internal regulations of their institutions and way of operation of each constitutional court.

Debré presented an overview of the evolution of constitutional law in his country since the creation by Napoleon Bonaparte, of the Council of State (with administrative jurisdiction) and the Court of Cassation (with jurisdiction over civil matters) to the installation of the Constitutional Council in the Fifth Republic. He noted that France experienced in the past year a constitutional revolution that has quietly gone unnoticed by the French public opinion. He stressed that according to the constitutional reform of 2008, which came fully into force last March, the Constitutional Council doesn’t do only one preventive and abstract control anymore and became a true constitutional justice, with the competence to undertake a constitutional review concrete and a posteriori.

Until the reform, the Constitutional Council had only the assignment to conduct a preventive constitutional review, attesting to the constitutionality of the projects approved by Parliament. The amendment of 2008 established the priority issue of constitutionality (question prioritaire de constitutionalité), whereby citizens may, in the course of a lawsuit, challenge the constitutionality of a law already in force. In this case, the action is suspended until the incident of unconstitutionality is resolved by the Constitutional Council. In the new system, it is the Council of State, who already had the competence to judge the constitutionality of administrative acts of the Executive, who shall evaluate the admissibility of the priority issue before the subject is raised to the appreciation of the Constitutional Council.

The President of the Constitutional Council reported the rules of procedure adopted in court. He reported that the processes are fully computerized and that, on average, they should be concluded no later than three months. He said that lawyers are entitled to an oral defense of a maximum of 15 minutes. He stated that Council decisions are taken by consensus in closed session, where each judge is entitled to present his assessment of the case for a period of five minutes. He added that statements are not allowed to dissent or minority opinions. In his evaluation, it is important the Constitutional Court to present uniform positions that ensure legal stability for economic and social agents.

Debré said that as president of the Constitutional Council, avoid incurring two mistakes: to rewrite laws passed by Parliament, which would lead to what he called government of the magistrates, and create legal instability from unclear and inaccurate decision, which would raise expectations of frequent revisions of the positions of the constitutional court.

Minister Peluso discussed the internal law of the STF. Reported the evolution of Brazilian constitutional law since the Empire and detailed the innovations in the field of control of the constitutionality made by the 1988 Constitution. President Debré expressed surprise when informed of the broadcasting of the audiences, including the votes of the ministers, by TV Justice. He jokingly commented that the French spirit could not bear so much transparency.

After the meeting, Minister Peluso described as very interesting and fruitful the exchange of experiences with his French counterpart. He noted that an international seminar on the rules of operation of constitutional courts could provide valuable exercise.

Following the official program, the president of the Supreme Court (STF met on Wednesday (13) the Secretary of State for Justice, Jean-Marie Bockel, and the Minister of Justice, Michele Alliot-Marie, and the director of the National School of Administration (ENA), Bernard Boucault.

At the meeting, secretary Jean-Marie Bockel announced the French government's intention to deepen exchanges with Brazil in the legal sphere. According to him, France will create, from December, the post of liaison magistrate with the Brazilian judiciary. The liaison judge will be permanently in Brasilia, with offices at the French Embassy and the Brazilian Ministry of Justice, to facilitate contacts between the judicial systems of both countries.

Bockel said that France already has 15 liaison judges based in Europe, North America, Africa and Asia, noting that Brazil will be the first Latin American country to receive an official representative of the French judicial system. The liaison magistrate in Brasilia, currently in selection process, will be responsible for all of South America.

In Bockel’s evaluation, the creation of a liaison magistrate will boost judicial cooperation between Paris and Brasilia. The secretary also expressed optimism about the mission of the Brazilian Ministry of Justice which is due to visit France in December.

Reiterating the readiness to cooperate with the French judicial system, Minister Peluso stressed the achievement, in Brazil, of the Second Congress of the International Conferences on Constitutional Justice, event to be held in Rio de Janeiro and that will bring together representatives from about 90 constitutional courts of all continents. The Chief Justice also noted the positive aspects of the meetings held in the French capital during this visit to the country and spoke about the similarities and differences between the Brazilian and French judicial review systems. After that, he toured the premises of the Ministry, visiting the museum of the institution.

At the next meeting, Minister Peluso invited Minister Michele Alliot-Marie to visit Brazil and the STF. Alliot-Marie, who has visited Brazil when she was in charge of Defence and Interior, said that she would feel honored to return to the country as head of the Ministry of Justice. Bockel and Alliot-Marie, who have just attend the cabinet meeting with President Nicolas Sarkozy to discuss the French pension reform, even commented that the issue has sparked vigorous debates in Parliament and the French public opinion.

In the meeting with the director of the National School of Administration (ENA), Bernard Boucault, the President of the Supreme Court heard a report on the structure and activities of the institution. Showing interest in establishing some kind of cooperation with the entity, Mnister Peluso also invited its director to visit Brasilia and the STF. Boucault promptly accepted the invitation and held that the definition of a program of cooperation may also involve the French Council of State.

The President of the Supreme Court ended its official agenda in Paris on Thursday (14) with a working meeting with the counselor Olivier Schrameck, followed by lunch hosted by Vice President of the Council of State, Jean-Marc Sauvé. Among the topics of the talks must be highlighted the new French system of constitutionality control (in which it is for the Council of State to assess the admissibility requirements of the individual appeals of unconstitutionality to be submitted to the Constitutional Council), the Congress on Constitutional Justice in Rio de Janeiro and the judicial cooperation between the two countries.

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