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Subordination of public defenders to governors declared unconstitutional

Friday, March 9th, 2012


unanimous vote, the Plenary of the Brazilian Federal Supreme Court (STF) held, on Wednesday (7), the unconstitutionality of the provisions from Minas Gerais Delegated Laws 112 and 117, both from 2007, and Maranhão state law no.8.559/2006, which include the Public Defenders Offices in the administrative structure of the respective states subordinating them to the governors.

The decision was taken in a joint trial of Direct Actions of Unconstitutionality (ADIs) 3965 and 4056, reported respectively by minister Cármen Lúcia Antunes Rocha and minister Ricardo Lewandowski. Both actions were filed by the Federal Public Prosecutor's Office (PGR), arguing that the contested provisions are an affront to Article 134, paragraph 2, of the Federal Constitution (FC), which ensured functional and administrative autonomy to the State Public Defenders Offices.

The plenary followed the votes of the rapporteurs regarding the merits of the ADI, based on jurisprudence already established by the Supreme Court. Minister Gilmar Mendes argued that if it was only a matter of equation of the state's general public defender to the secretaries of State for the purpose of "status" without formally subordinating the defender to the structure of state governments, this would not be reason for proposing the ADIs. He acknowledged, however, that the laws of both states leave no doubt that this is effectively a violation of Article 134, paragraph 2, of the Federal Constitution.

The lawyer for the poor

The Public Defenders Office is the State agency responsible to providing full and free legal assistance to those in need. In accordance with Article 5, paragraph LXXIV of the Federal Constitution of 1988, every individual, whether Brazilian or foreign, has the fundamental right of access to justice, even if do not have financial conditions to pay a private lawyer. In this case, the Brazilian State has the duty to guarantee the person who needs a large and free legal aid, judicial and extrajudicial, through the Public Defender's Office, an institution created especially for this purpose under Article 134 of the Constitution.

The Public Defenders Office is composed by career positions, whose members must be approved in a public contest of tests and titles. For the performance of their duties, the Public Defenders have the constitutional guarantee of tenure. So, are independent to act in the interests of citizens and should also act against the state without receiving any punishment.

Complementary Law 80 of January 12, 1994, organizes the Public Defenders Office of the Union, the Federal District and Territories, and prescribes general rules for its organization in the States.

Related processes:
ADI 3965
ADI 4056

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