According to the Brazilian Constitution of 1988, the Legislative, Executive and the Judiciary Branches are balanced among themselves.
In the remote and recent past, Brazil has witnessed the use of impeachments to remove four Presidents from power: 1. Café Filho as per the impeachment approved by the Brazilian Supreme Court (STF) in November 1955, 2. Carlos Luz, who replaced Café Filho was also impeached by the STF in November 1955, 3. Fernando Collor de Mello, who resigned his post on December 30, 1992 to avoid the impeachment which was already articulated against him in the Brazilian Congress, and 4. Dilma Rousseff who was impeached by the Brazilian Congress on August 31, 2016.
But what is an impeachment ? It is a process initiated against high authority of the Executive Branch (e.g., the President of Brazil, Governors, Mayors) or of the Judiciary Branch (e.g., Supreme Court Justices), whose decision falls upon the Legislative Branch and based on a complaint of high crime, high misdemeanor, and impeachable offenses.
On April 10, 1950, Statute #1,079 was sanctioned in Brazil, which defines impeachable offenses and regulates the respective process of judging authorities for it. But who are these authorities? Indeed, they are the President of Brazil, State Ministers, Justices from the Brazilian Supreme Court and the State Attorney General.
1.1. THE PRESIDENT OF BRAZIL
Acts by the President of Brazil that violate the Brazilian Constitution are considered as impeachable offenses, and especially against:
1. The existence of the Government.
2. The free exercise of the Legislative Branch, the Judiciary Branch and the constitutional powers of the States.
3. The exercise of political, individual, and social rights.
4. The country's internal security.
5. Public conduct.
6. The budget law.
7. The safekeeping and legal use of public funds.
8. Compliance with court decisions.
Although the actions above are the major ones, the President of Brazil may still be held accountable in the following situations:
CRIMES AGAINST THE EXISTENCE OF THE GOVERNMENT
1. Directly or indirectly providing a foreign government with intelligence, provoking it to wage war or towards hostility against the Brazilian Republic, promising it assistance or favor, or giving it any assistance in preparations or plans for war against the Brazilian Republic.
2. Attempting, directly and by deed, to subject the Government or any of the States or Territories to foreign dominion, or to separate any State or portion of the national territory therefrom.
3. Committing an act of hostility against a foreign nation, exposing the Brazilian Republic to the danger of war, or compromising the neutrality thereof.
4. Disclosing political or military business that must be kept secret for the sake of defending Brazilian external security or interests.
5. Assisting, in any way, an enemy nation to wage war or towards hostility against the Brazilian Republic.
6. Entering into treaties, conventions, or adjustments which compromise Brazilian dignity.
7. Violating the immunity of foreign ambassadors or ministers accredited in the country.
8. Declaring war, except in cases of invasion or foreign aggression, or make peace without authorization from the Brazilian Congress.
9. Failing to employ the possible means of defense against an enemy.
10. Allowing, during legislative sessions and without authorization from the Brazilian Congress, foreign forces to transit through the country's territory, or, due to war, to remain temporarily therein.
11. Violating treaties legitimately made with foreign nations.
CRIMES AGAINST THE FREE EXERCISE OF CONSTITUTIONAL POWERS
1. Trying to dissolve the Brazilian Congress, prevent the meeting or try to prevent in any way the operation of any of Houses.
2. Using violence or threats against any Brazilian representative to remove them from the House to which they belong or to coerce them in how to exercises their mandate, as well as to achieve or try to achieve the same objective by means of bribery or other forms of corruption.
3. Violating the immunities granted to members of the Brazilian Congress, the State Senates, the City Councils of the Federal District and other City Councils.
4. Allowing foreign forces to transit through the country's territory or remain therein when opposed by the Brazilian Congress.
5. Opposing, directly and by deeds, the free exercise of the Judiciary Branch, or obstructing the effect of its acts, orders, or sentences violent means.
6. Using violence or threats to compel the judges or jurors to issue or refrain from issuing an order, sentence or vote, or to perform or refrain from performing an act in their office.
7. Committing an act defined as a crime in this Article against state or municipal powers.
8. Intervening in business which are particular to the States or Municipalities not complying with constitutional norms.
CRIMES AGAINST THE EXERCISE OF POLITICAL, INDIVIDUAL, AND SOCIAL RIGHTS
1. Preventing free vote by means of violence, threat, or corruption.
2. Obstructing the free exercise of polling workers.
3. Violating the polling station or invalidate its result by subtracting, diverting, or rendering the respective material unusable.
4. Using federal powers to prevent the free execution of electoral law.
5. Making use of authorities under immediate subordination to practice abuse of power, or tolerate that these authorities practice it without reprehension,
6. Subverting or attempting to subvert the political and social order by violent means.
7. Inciting military personnel to disobey the law or violate discipline.
8. Provoking animosity between or against the military, or between it and civil institutions.
9. Clearly violating any individual right or guarantee provided for in Article 141 as well as the social rights provided for in Article 157 of the Brazilian Constitution.
10. Taking or authorizing, during the state of siege, measures of repression that exceed the limits provided for by the Brazilian Constitution.
CRIMES AGAINST THE COUNTRY'S INTERNAL SECURITY
1. Violently trying to change the Brazilian Republic's form of government.
2. Attempting to change the Brazilian Constitution or any of the States, or Government, State or Municipal law by violence.
3. Declaring, by executive Order, a state of siege, when the Brazilian Congress is in session, or during its recess, should there be no serious internal commotion or facts that a war is erupting or occurring.
4. Committing or contributing to the perpetration of any of the crimes against internal security defined in criminal law.
5. Failing to take measures within their jurisdiction to prevent or frustrate the execution of such crimes.
6. Leaving the country without authorization from the Brazilian Congress.
7. Allowing, expressly or tacitly, the violation of federal law of public order.
8. Failing to take, within established deadlines, the measures determined by law or federal treaty and necessary for their execution and fulfillment.
CRIMES AGAINST PUBLIC CONDUCT
1. Deliberately omitting or delaying the publication of laws and resolutions of the Legislative Branch or acts by the Executive Branch.
2. Failing to provide the Brazilian Congress with the accounts relating to the previous financial year within sixty days after the opening of the legislative session.
3. Failing to make the responsibility of its subordinates effective when manifested in functional crimes or in the practice of acts contrary to the Brazilian Constitution.
4. Issuing orders or making requests contrary to the express provisions of Brazilian Constitution.
5. Infringing the legal norms in the provision of public offices.
6. Using violence or threats against a public official to coerce them into illegal acts, as well as using bribery or any other form of corruption for it.
7. Behaving in an manner incompatible with the dignity, honor, and decorum of the position.
CRIMES AGAINST BUDGET LAW
1. Failing to submit the budget proposal of the Brazilian Republic to the Brazilian Congress within the first two months of each legislative session.
2. Exceeding or moving budget appropriations without legal authorization.
3. Carrying out fund reversal.
4. Clearly infringe the provision of the budget law in any manner.
5. Failing to order the reduction of consolidated debt, within the terms provided for by law, when it exceeds the value resulting from the application of the maximum limit set by the Brazilian Senate.
6. Ordering or authorizing a credit line in disagreement with the limits provided by the Brazilian Senate, without grounding it in the budget law or in the additional credit law or with non-compliance with legal provisions.
7. Failing to promote or order, pursuant to the law, the cancellation, amortization, or constitution of a reserve to nullify the effects of a credit operation carried out in breach of the limit, condition, or amount provided by law.
8. Failing to promote or order the full settlement of a credit operation by anticipating budget revenue, including the respective interest and further charges, by the end of the financial year.
9. Ordering or authorizing, against the law, a credit operation to be carried out with any of the other entities of the Federation, including its indirect administration entities, even if in the form of novation, refinancing or postponement of previously contracted debt.
10. Raising funds by anticipating tax or contribution revenue whose taxable event has not yet occurred.
11. Ordering or authorizing the allocation of resources from the issuance of securities for a purpose other than that provided for in the law authorizing it.
12. Making or receiving a voluntary transfer in violation of the limit or condition established by law.
CRIMES AGAINST THE SAFEKEEPING AND LEGAL USE OF PUBLIC FUNDS
1. Ordering expenses unauthorized by law or without observing legal prescriptions related thereto.
2. Acquiring credit lines without legal basis or without legal formalities.
3. Taking out a loan, issuing currency or policies, or carrying out a credit operation without legal authorization.
4. Disposing national properties or pledge public rents without legal authorization.
5. Neglecting the collection of rents, taxes, and fees, as well as the conservation of the Brazilian heritage.
CRIMES AGAINST COMPLIANCE WITH LEGAL DECISIONS
1. Preventing the effect of acts, orders, or decisions of the Judiciary Branch by any means.
2. Refusing to comply with the decisions of the Judiciary Branch when depending on the exercise of the functions of the Executive Branch.
3. Failing to comply with a request for federal intervention by the Brazilian Supreme Court or the Superior Electoral Court.
4. Preventing or frustrating payment determined by court order.
1.2. STATE MINISTERS
The following are impeachable offenses by Ministers of State:
1. The acts provided for in this Statute when practiced or ordered by them.
2. The acts provided for in this Statute that the Ministers sign with the President of Brazil or carried out by order of the latter.
3. Failing to appear without justification before the House of Deputies or the Brazilian Senate, or any of their committees, when a given House of Congress summons them to personally provide information on a given matter.
4. Failing to provide, within thirty days and without justification, to any of the Houses of the Brazilian Congress, the information request thereto in writing, or falsely provide it.
1.3. IMPEACHING THE PRESIDENT OF BRAZIL AND STATE MINISTERS
The process of impeaching a President or State Ministers in Brazil begins with a complaint by any citizen before the House of Deputies; the complaint only being received if the individual is still in the exercise of such office. The complaint must be signed with a notarized signature, having attached all documents and the respective list of witnesses, if any.
Once the complaint has been received, it will be read in the following session and forwarded to an elected special commission, in which representatives of every political party will proportionally participate to give an opinion on it.
Said committee must meet within forty-eight hours and issue an opinion within ten days. Five representatives of each party may speak for one hour about the opinion, with the Special Commission rapporteur having the right to reply each of them.
At the end of the discussion, the complaint will be submitted to a roll call vote, which may be filed or accepted. In the latter, a copy will be sent to the accused, who will have a period of twenty days to contest it and provide counterevidence. At the end of the period, with or without objection, the commission will take steps, as the case may be, and will issue an opinion within ten days on the merits or rejection of the complaint.
Once the discussion of the opinion is closed, the roll call vote is taken, with no further points of order being allowed. Should the vote be favorable, the accusation to the President of Brazil or the State Minister will be declared and, depending on the offense, the process will be sent to the Brazilian Supreme Court or the Brazilian Senate.
When the Senate receives the declared accusation with the process sent by the House of Deputies and the charging instrument is submitted by the accusing commission, the President will send a copy of it to the accused, who, at the same time, will be summoned to appear before the Senate on a predetermined day. On the trial day, having present the accused, their attorneys or the defender appointed in absentia, and the accusing commission, the Chief-Justice of the Brazilian Supreme Court, opens the session, reading of the preparatory process, the charging instrument and the articles of defense. The Chief-Justice will then question witnesses, who must testify publicly and without the presence of one another. Any member of the prosecution Commission or of the Senate, as well as the accused or their attorneys, may request for the witnesses to be asked questions they deem necessary.
The verbal debate will then take place between the accusing commission and the accused or their attorneys for a period established by the Chief-Justice, which may not exceed two hours. Once the oral debates are over and the parties have been withdrawn, a discussion will begin on the object of the accusation. Once the discussion is over, the Chief-Justice of the Brazilian Supreme Court will make a summary report of the complaint and the evidence of the prosecution and the defense, also submitting the judgment to a nominal vote by the senators.
1.4. JUSTICES OF THE BRAZILIAN SUPREME COURT
The following crimes are the responsibility of the Justices of the Brazilian Supreme Court:
1. Altering, in any way, except by appeal, the decision or vote already given in a session of the Court.
2. Rendering judgment when suspected in the cause by law.
3. Exercising party-political activity.
4. Being clearly negligent in fulfilling the duties of the position.
5. Behaving in a manner incompatible with the honor, dignity, and decorum of their duties.
6. All 12 types of crimes against budget law described above.
This also applies to the Chief-Justices and respective substitutes when in the exercise thereof, of the Superior Courts, of the Courts of Accounts, of the Brazilian Regional, Labor and Electoral Courts, of the Courts of Justice and Jurisdiction of the States and of the Federal District, and to the Judges Directors of Forum or equivalent function in the first degree of jurisdiction.
1.5. STATE ATTORNEY GENERAL
The following crimes are the responsibility of the State Attorney General:
1. Issuing an opinion when suspected in the cause by law.
2. Refusing to perform an act which is incumbent thereupon.
3. Being clearly negligent in carrying out their duties.
4. Behaving in a manner incompatible with the dignity and decorum of the office.
5. All 12 types of crimes against budget law described above.
1.6. IMPEACHING JUSTICES OF THE BRAZILIAN SUPREME COURT OR THE STATE ATTORNEY GENERAL
The process of impeaching Justices of the Brazilian Supreme Court or of the State Attorney General begins with a complaint by any citizen before the Brazilian Senate; the complaint only being received if the individual is still in the exercise of such office. The complaint must be signed with a notarized signature, having attached all documents and the respective list of witnesses, if any.
The procedure follows practically the same procedure described above for the judgment of the President or State Ministers, except for the fact that, in this case, no accusing commission is formed.
However, it is important to note that both the Speaker of the House of Deputies, in the case of President of Brazil or Minister of State, and the Speaker of the Federal Senate, in the case of Justices of the Brazilian Supreme Court or Attorney General of the Republic, have the power to receive or not the impeachment complaint and only then can the impeachment process described above begin.
