Due Process in the Brazilian Presidential Impeachment

28 Fla. J. Int’l L. 331-48 (2016)

17 Pages Posted: 28 Mar 2017 Last revised: 6 Jul 2017

See all articles by Ricardo Perlingeiro

Ricardo Perlingeiro

Fluminense Federal University - Faculty of Law; Estácio de Sá University - MA and PhD Programs in Law; Birmingham City University - Faculty of Business, Law and Social Sciences

Date Written: 2016

Abstract

Using the example of Dilma Rousseff’s impeachment by the Federal Senate on 31 August 2016, this paper discusses the applicability of the U.S. notion of “procedural due process of law” to the presidential impeachment process under Brazilian constitutional law, taking a critical approach based on the Inter-American system of human rights protection and a number of comparisons with the European human rights model. The author argues that, although the Senate alone is competent to try the President for crimes “de responsabilidade” according to Article 52 (1) of the Brazilian Constitution, certain guarantees of due process are necessary in such impeachment proceedings in order to ensure compliance with the fundamental human right to a fair trial established by the case law of the Inter-American Court of Human Rights. Brazilian law should therefore be amended by providing for Supreme Court review of the legal and factual issues of the impeachment in exceptional cases in which the Senate fails to provide such guarantees.

Table of contents: Applicability of due process of law in impeachment. Due process in Latin America. Due process in the Brazilian impeachment. Can the Senate exercise quasi-judicial powers? Independent and impartial hearing as a fundamental human right. Correlation between judicial deference and quasi-judicial nature of the administrative adjudication. Judicial deference towards the Senate’s impeachment decision. Immunity incompatible with American Convention on Human Rights. Case of Paksas v. Lithuania: European Court of Human Rights and the UN Human Rights Committee. Right to a fair trial in administrative disputes: a comparison of the European and Inter-American Courts of Human Rights. Judicial review of impeachment as an extreme measure. Exceptions to exceptional judicial review of impeachment. Guarantees of due process in impeachment. Right to independent adjudicators. Right to adjudicators with proper legal training. Right to impartial adjudicators. Right to complete adjudication of issues of fact and law. Right to a second chance.

Keywords: Impeachment. Due process of law. American Convention on Human Right

JEL Classification: I18, K32, K33, K23, K41, I11, I28, H75, H51, N46

Suggested Citation

Perlingeiro, Ricardo, Due Process in the Brazilian Presidential Impeachment (2016). 28 Fla. J. Int’l L. 331-48 (2016) , Available at SSRN: https://ssrn.com/abstract=2919987

Ricardo Perlingeiro (Contact Author)

Fluminense Federal University - Faculty of Law ( email )

Rua Presidente Pedreira, 62
Niterói, 24210-470
Brazil

Estácio de Sá University - MA and PhD Programs in Law ( email )

Avenida Presidente Vargas, 642
Rio de Janeiro, 20071-001
Brazil

Birmingham City University - Faculty of Business, Law and Social Sciences ( email )

4 Cardigan Street
Birmingham, B4 7BD
United Kingdom

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