Tag: Brazil

Brazil’s Recent Ratification of the Budapest Convention on Cybercrime

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Bruno Calabrich (Public Prosecutor (Brazil) | PhD candidate at the University of Brasília (UnB).)
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Cybercrime is a growing issue in today’s digital age, with criminals taking advantage of the interconnectedness and dependency on technology for personal and organizational activities. Cybercrime is not a new problem and has been addressed by the Council of Europe with the Budapest Convention on Cybercrime in 2001, which entered into force in 2004 after ratification by five Council member countries. This international treaty was conceived to serve as a framework for nations to coordinate and cooperate in the investigation, prosecution, and prevention of cybercrime. As highlighted in its preamble, the Convention recognizes the crucial importance of establishing common criminal law and criminal procedural law in order to facilitate “detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation”.[1] Chang and Grabosky point out that “the Budapest Convention is the first and only international convention to encourage harmonization of cyber laws and regulations, and to build cooperation among nations in controlling cybercrime”.[2] In its core fundamentals, Member States commit to work together to provide quick and effective responses to cyber-attacks, exchange information on emerging threat trends and assist each other in investigating cross-border criminal activities.

Brazil, as a leading South American country in terms of technological advances and digital economy, has also recognised the importance of addressing these issues. Indeed, after a long period in which little importance was given to the topic (particularly when compared to the European tradition), Brazilian legislation has shown significant advances in several matters related to digital law, cybercrime and personal data protection in recent years. Its main normative milestones are Federal Statute No. 12.737/2012,[3] which “establishes the criminal typification of cybercrimes” – also known as the “Carolina Dieckman Act” –, Federal Statute No. 12.965/2014[4] – the Brazilian Internet Civil Rights Framework –, and Federal Statute No. 13.709/2018[5] – the Brazilian General Data Protection Act (“Lei Geral de Proteção de Dados Pessoais”, or LGPD). In Brazilian Courts, there have also been important decisions, such as the ruling by the Federal Supreme Court (STF) on ADC (“Ação Direta de Constitucionalidade”, a declaratory lawsuit of constitutionality of federal laws or normative acts) no. 51,[6] in February 2023, which confirmed the validity of court orders issued in the interest of criminal investigations for technology companies running internet applications in Brazil, even when the requested data is stored on servers located abroad. Prior to that, in May 2020, the STF, in the judgment of ADI (“Ação Direta de Inconstitucionalidade”, a direct lawsuit of unconstitutionality of federal or state laws or normative acts), no. 6387 MC-Ref/DF, recognized for the first time the protection of personal data as an autonomous fundamental right, not explicitly stated, but inferred from an integrated reading of several provisions of the Brazilian Constitution.[7] This decision prepared the grounds for the enactment of Constitutional Amendment no. 115/22, in February 2022, which expressly included the protection of personal data in the wording of the Constitution among the fundamental rights and guarantees.[8]

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Lula’s presidency: what to expect from the European Union – Brazil relationship

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José Manuel Fernandes (Member of the European Parliament and Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil)
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Lula da Silva’s victory in Brazil’s 2022 presidential elections is an opportunity for the strengthening of relations between the European Union and Latin America’s largest country. Taking advantage of the new Brazilian government taking office on January 1, 2023, as well as the unfortunate events of January 8, when protesters invaded Brazilian institutions. In this text, I propose to address what I hope and wish for the bilateral relations between the EU and Brazil in the coming years. For my part, and as Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil, I take what I write not only as analysis, but also as political commitment.

The size and importance of Brazil continues to elude most Europeans, even the main political leaders. We perpetuate a distant and incomplete vision of what Brazil actually is: a country that represents half of Latin America, both geographically and demographically; the 10th economy in the world; one of the five largest agricultural producers in the world. It is time to recognize Brazil as a global giant, and to treat it as such.

The key word must be “cooperation”. Without paternalism, by mutually recognizing potentialities and weaknesses. Cooperation must have as common ground the values of freedom, democracy, the rule of law, and the uncompromising defence of human dignity and human rights. Environmental sustainability and inclusion are also essential elements for the economic development we must conquer.

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Lula da Silva is President of Brazil once again: are we closing a cycle of lawfare?

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By Guilherme Torrentes (Master in Human Rights from the University of Minho)
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On January 1, 2023, Luiz Inácio Lula da Silva was sworn in as President of Brazil for the third time, after one of the fiercest electoral disputes since the re-democratization of the country (which occurred in 1985), in which Lula da Silva defeated Jair Bolsonaro. It is perhaps the end of a cycle of “lawfare” – a term that can be defined as the strategic use of law for the purpose of delegitimizing, harming, or annihilating an enemy[1] – that is, the perverse use of legal rules and procedures for the purpose of political persecution. This cycle of lawfare was initiated in a tentative way by what became known as “Mensalão” (a “mega” or “maxi” judicial process that culminated in the conviction of several political members of Lula’s first government for corruption) and worsened with the impeachment process of President Dilma Roussef and “Operação Lava Jato” (another “mega” judicial process that culminated in the illegal imprisonment of Lula for 580 days).

This cycle of lawfare has jeopardized the continuity of the democratic rule of law, as the Brazilian judiciary and criminal process have been instrumentalized by the exception and subjectivity undesirable to its performance, in order to achieve the desired political ends. It is worth noting that in 2018, the Brazilian State failed to comply with a recommendation of the United Nations (UN) Human Rights Committee to guarantee Lula the right to run for the presidential elections of that year, invoking its domestic laws to not apply Article 25 of the International Covenant on Civil and Political Rights (which guarantees every citizen the right and the opportunity, without unreasonable restrictions, to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors).[2]

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An instrument out of tune: the EU –Mercosur Trade Agreement

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Nataly Machado (Master’s student in EU Law, UMinho)
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Brazil is one of the countries with the largest environmental heritage in the world. However, in breach of the existing legislation that helps protect the environment, Brazilian biomes are increasingly threatened by the poor political and environmental management of this country in recent years.

If we consider the Amazon biome, the largest tropical forest in the world, which occupies 59% of Brazil’s territory, holds a large part of the available freshwater in the world and is home to the largest number of species of flora and fauna in the world, the numbers of environmental setbacks are alarming (to say the least). For example, in April 2021, record shows that deforestation reached 778 km2, which is the highest rate for that month in the last ten years[1].

The gap between the discourse of goals and commitments to take care of the Brazilian forests and what happens in practice – an old and repeated script in the history of unbridled destruction of the Amazon – has not worked as a strategy to consolidate the trade agreement between the European Union and Mercosur (Argentina, Brazil, Paraguay and Uruguay), which has been the breeding ground for controversy before the final approval of the EU Member States and the European Parliament.

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Editorial of February 2021

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Alessandra Silveira (Editor) and Alexandre Veronese (Professor at University of Brasília)
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Thoughts regarding the right to deindexation and the weaknesses of the idea of “being forgotten” online – marking the Data Protection Day

28 January 2021 marks the 15th “Data Protection Day” and the 40th anniversary of the Council of Europe’s Convention 108 – the first international legal instrument regarding personal data protection – which was opened for signature on 28 January 1981.

What began as a European celebration is now a yearly commemoration all around the world. This year, to mark the occasion, the Ibero-American Network for Data Protection and the Council of Europe promoted an event targeted to Latin America. It is interesting to know that, coincidentally, the Brazilian Federal Supreme Court (STF) will hear on 3 February a case regarding a type of “right to be forgotten.” This right is the subject inspiring this essay. In light of this fact, it is essential to assess the (jus)fundamental dimension of the right to deindexation and the weakness of the idea of “being forgotten” online.[i]

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The Household Mask – The Fundamental Right to the Access to Justice and to Online Court Sessions in times of COVID-19

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mosaics of the villa romana del casale

 by Marcílio Franca, Professor at Federal University of Paraíba (Brazil)
 and Inês Virgínia Prado Soares, Federal Judge (Brazil)

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The application of contention measures and social isolation due to COVID-19 has caused a great impact on the operation of the whole justice system – in courtrooms, law firms etc. in the world and in Brazil alike. Brazil’s National Council of Justice (Conselho Nacional de Justiça – CNJ) has been working from home since March 12 as a way to administer justice during the most critical period of the pandemic. On March 26, The National Council of the Prosecution Office (Conselho Nacional do Ministério Público – CNMP) determined the uniformization of the measures to prevent Coronavirus at all branches of the Prosecution Office in Brazil, making remote work and conference calls mandatory.

In turn, Brazil’s highest Court, the Supreme Federal Court (Supremo Tribunal Federal – STF) published Resolution 672/2020 on March 27 to allow the use of conference calls on its trial sessions. Such document, as those issued by CNJ and CNMP, does not detail the formalities to be respected, which intuitively leads us to believe things must be done as they always have been, including themes such as language and the attire.
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Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)

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There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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