Introduction

          Brazil, the fifth largest nation in the world, contains a vast variety of ecosystems ranging from the Amazon rain forest to the Pantanal wetlands. The Country is a rich source of exotic species including brilliantly colored insects, fish, and birds such as the endangered blue macaw as well as jaguars, alligators and giant tortoises. 

Following the global tendency of protecting the environment, Brazil=s Federal Constitution of 1988 dedicated an entire chapter to the protection of the country=s fauna and flora, and settled legal standards for environmental protection. Ten years later, the Environmental Crimes Law was enacted to complement the Constitution and impose criminal liability on environmental crimes. This law also reached out to deal with cruelty crimes against both domestic animals and wildlife.                    

The Brazilian Environmental Law system is extensive at all levels of government including Federal, State, Municipal laws, and regulations, all concerning proper environmental conduct. However, this article focuses primarily on the federal level of law.

I. Brazil Federal Constitution

In 1998, The Brazil Federal Constitution assigned a special chapter to environmental protection, which was created to conform to the terms and principles of The Declaration of the United Nations Conference on the Human Environment, held in Stockholm in 1972.              

The Article 225 of Brazilian Constitution, http://www.animallaw.info/nonus/statutes/stbrconst_8en.htm , states that the right to an ecologically balanced environment belongs to all, including future generations, and that the duty for its defense is imposed on both the government and the community. Therefore, the Constitution confers jointly on the federal government, the states, the Federal District, and municipalities the authority and duty to protect the environment, to take action against pollution in any of its forms, to protect Brazilian fauna and flora, and forbids any practice that might put them at risk to their ecological function, result in the extinction of species. In addition to the ecological concerns of this section of the Constitution, the phrase Asubject animals to cruelty@ is also present. This one phrase gives authority to the state to deal with cruelty issues involving any category of animal.

II. Domestic Animals

         The Constitution recognizes that animals have fundamental interests.  Based on the recognition of animals in the Constitution, the Brazilian Supreme Court has ruled so as to ban popular traditions that involve animal suffering. These include cock fighting, as well as a tradition practiced in southern Brazil, known as AFarra do Boi@ (Ox Feast). The Ox Feast is a popular tradition that involves crowds of villagers brandishing weapons such as sticks, knives, whips, or stones, as they chase the oxen through the streets while inflicting their blows upon them. In 1997, the Supreme Court ruled, in a public civil action against the state of Santa Catarina (Recurso Extraordinario n.153.531/SC;RT 753/101), that although it is the duty of the state to guarantee to all people the expression of cultural rights, this can not happen without observing the constitutional norm of the article 225, which forbid any practice that submits animals to cruelty. The proceedings called AOx Feast@ violate this constitutional rule.                                                                

This Supreme Court ruling was an historic landmark in animal rights development in Brazil, by recognizing that animals have the right to legal protection against suffering and mistreatment. It also reaffirmed the rights of animals to have their interests represented in court and safeguarded by the law of the land.        

To monitor compliance with the legal precedent inserted in the fundamental law of the State, Brazilian municipalities and states have passed a set of provisions for animal protection against cruelty and neglect. For example, city of Sao Paulo enacted a law to impose affirmative duties on people with animals in their care (Law n.13.131, May 17,1993). And the city of Rio de Janeiro banned circuses and shows that use performing animals, domestic or exotic, and restricted the ownership of such animals only to authorized zoos (Law n1 3714, November 21, 2001). This year, the state of Rio Grande do Sul enacted Animals=s Protection Code  (law n.11.915, May 21,2003).

Regardless, animal exploitation is a very profitable industry worldwide and it is not different in Brazil. In fact, Rodeo in Brazil is a million-dollar industry and a very controversial issue.  The dispute evolves around whether rodeos are considered a cruel treatment to animals. There were some trial court=s decisions suspending rodeos in the State of Sao Paulo, understanding that rodeo is a practice which submit animals to cruelty. Indeed, the City of Sao Paulo banned rodeos in 1993, but in 1999 the State of Sao Paulo enacted a law regulating rodeos. Last year, Brazilian Federal Congress has past law n.10.519 (of July 17,2002) to regulate rodeos. The federal law requires a veterinarian at rodeo, prohibits electric prod, or similar device that can cause injury or wound animals. The penalties include fine and suspension of rights. However, this law is not effective in preventing injuries, the penalties are not severe enough to deter abusive treatment, and it is less likely to be strictly enforced. Indeed, the controversy about rodeos is far to end because some Brazilian legal scholars suggest that this law might be unconstitutional.

According to Brazilian Civil Code, domestic animals are viewed as personal property. They can be an object of commercial transaction and economic use. Because domestic animals keep their status as property, if they were abandoned, they would be considered Ares nullius and could be appropriated by anyone, including animal control agencies. Many municipal animal control agencies still use gas to asphyxiate stray dogs, cats, and horses. However, an animal advocacy group brought and won a public civil action (2) against the city of Sao Paulo to implement the method of lethal injection to provide a painless method of killing stray domestic animals.

Furthermore, in the case of harm or loss of a domestic animal, a private party can sue the violator to recover damage for a loss or injury of a domestic animal. Also, accidental or negligent actions can be prosecuted.  

Article 32 of the federal Environmental Crimes Law prohibits the abuse, mistreatment, or mutilation of domestic or wild animals, including exotic animals, as well as domesticated fauna, which are wild creatures previously captured and tamed. However, the law does not require that the mistreatment to be intentional to be illegal. Therefore, negligent actions can be prosecuted under the statute.         

Definitions of abuse against animals can be found in the Federal Decree n. 24.645 promulgated in 1934, http://www.animallaw.info/nonus/administrative/adbrfeddec_24_645.htm  which established measures of animal protection against cruelty and mistreatment. The federal decree was revoked in part by Law 9.605/98, but the part that defines acts of abuse and cruelty are still in effect, until new regulation on the subject revokes it. Moreover, the behaviors that are considered to be abusive and mistreating towards animals by the federal decree are, among others: 

(1) confining an animal in a cruel manner; (2) overworking an animal; (3 )to wound, injury or mutilate an animal; (4) to cause an animal to fight with another; (5) to train an animal by means of physical punishment.

Further, Article 32, in its first paragraph, forbids painful or cruel experiments on living creatures, even for teaching or scientific purposes, whenever there are alternative means. Alternative techniques such as chemistry, mathematics, radiology, microbiology, or other methods that would prevent the use of animals in laboratory experiments. In both crimes described in Article 32, the penalty includes imprisonment of three months to one year and a fine. Also, if an animal dies, the penalty applied is increased by one‑sixth to one‑third. So, when there is no alternative technique to substitute animal experimentation, the vivisection is permitted. Vivisection is regulated by the federal law n. 6.638 (enacted in 1979). Equally, this law prohibits vivisection without anesthesia, and bans this procedure from public schools. Even so, vivisection is still largely practiced in Brazilian veterinary and medical schools. In fact, many animal control agencies donate stray animals to veterinary and medical schools.       

Most importantly, cruelty crimes against animals need a clear and actual definition that is not provided by the Environmental Crimes Law.  As a result, a federal bill was proposed in last January to provide clear definitions of mistreatment and broad protection of animals, especially domestic animals. The bill also included protection against cruelty to animals that are for consumption, imposing humane treatment and painless killing. The interest of animals are be protected by prosecutors and members of animal advocacy groups.  Additionally, a public civil action can be brought on animal’s behalf.           

III. Legal Status of Brazilian Wildlife

As for wildlife, the Environmental Crime Law states that Brazilian wild fauna consists of native, migratory or any other species that have their biological cycle of life, or part of it, within Brazil jurisdictional territory and waters. Wild fauna are considered Ares publica  (public domain), they cannot be appropriated, and they are subject to regulation of use by the federal government.

Brazil has a ban on the use of marine mammals in entertainment. And, according to Brazilian law 7.643/87 and 9.605/98, hunting whales and dolphins are forbidden in Brazilian jurisdictional waters, as well as any kind of deliberate molestation such the pursuit of animals with vessels. The disrespect of these laws can be punished with a 2 to 5 years imprisonment, a fine, and the loss of the vessel.

Environmental Crimes - Law 9.605/98

      The Environmental Crimes Law of February 12, 1998 was intended to complement provisions previously established by the Brazilian Federal Constitution. First, federal law implemented criminal penalties in cases of actions or activities that may damage the environment, substituting criminal penalties imposed by multiple prior legislation, such as the Hunting Code, Fishing Code, and Forest Code. Next, the law provides for the imposition of criminal liability on the person, individual or legal entity that pollutes or degrades the environment, according to their culpability. Such liability is extended to manager, director, auditor, representative, member of board and others from the legal entity, whenever they do not prevent company's criminal actions, once aware of them. Penalties for individuals and legal entities range from detention or confinement to restriction of rights, fees, total or partial interdiction or suspension of the activities, rendering of obligatory social services, and temporary interdiction of the establishment to the prohibition of contracts with public administration.       

      Crimes against fauna are described in the first section of the chapter that presents the crimes against the environment. Crimes against wild fauna as seen in Law 9,605/98 are: the killing, persecution, hunting, capturing or use any fauna species without authorization or license.

      Except for the state of Rio Grande do Sul, commercial, sport, and recreational hunting are prohibited in all Brazilian territory. The state of Rio Grande do Sul’s hunting law provide a list of animals which can be hunted, it does not permit trapping devices, and the hunting can not be commercialized. Occasionally, for scientific purposes, the capture of wild animals can be authorized, but it is necessary to obtain a special license from the government. The penalty for this crime is detention of six months to one year, and/or a fine. The penalty is increased by half, if the crime is committed:

1. Against rare species or those considered endangered, even if only at the site of violation.

2. In the period in which hunting is prohibited

3. During the night

4. By abusing the license

5. Within a conservation unit

6. By using methods or instruments capable of provoking mass destruction.

And, the penalty is increased up to three times if the crime occurs during a professional hunt.

It is not considered a crime to kill an animal when it is carried out: (I) ‑ in the case of need, to satisfy the hunger of the agent or that of his family; (II) ‑ to protect agriculture, orchards and herds from predatory or destructive action by animals, if express and legal authorization is issued by the competent authority; (IV) ‑ because the animal is dangerous, if it has been so characterized by the appropriate agency.

Other crimes set out in the law are:

( I) to inhibit species' procreation without authorization or license; (II)  to modify, damage or destroy natural nests or shelters; (III)  to sell, offer, export, purchase, keep, utilize or transport eggs or larvae of fauna species, as well as products derived from fauna species without authorization or license; (IV) to export the skin or leather of amphibians or reptiles without authorization; (V)  to introduce species into the country without license; (VI) to cause the death of aquatic species by polluting their habitat; (VII)  to fish using forbidden instruments or in forbidden seasons or areas.

The Environment Crimes Law is more permissive than the prior law, the Fauna Protection Act (Law n. 5.197/1967), which was more severe in providing punishments without bail for crimes against fauna. However, the new law considers crimes against the environment a less potential offensive crime. Therefore, the penalties when imprisonment for up to four years is applied, circumscribe the right to substitute imprisonment. And, the penalties which circumscribe rights are: (I) ‑ community services; (II) temporary suspension of rights; (III)‑ partial or total suspension of activities; (IV) ‑ disbursement; (V) ‑ house arrest.

          Upon verification of a violation, the products and instruments of the crime will be apprehended. Animals will be set free in their habitat or be given to zoos, foundations or similar entities, as long as they remain under the responsibility of qualified technical personnel. Other perishable products will have to be evaluated and donated to scientific institutions, hospitals, prisons and other similar entities. Non‑perishable fauna products and byproducts shall be destroyed or donated to scientific, cultural or educational institutions.

        Additionally, the law protecting Brazilian Flora and crimes against flora are, among others: (I) to destroy or damage forest reserves; (II) to cut trees in forest reserves; (III) to cause fire in forests; (IV) to extract minerals from public forests or reserves without authorization or license; (V) to receive wood or other vegetable products for commercial or industrial purposes without requesting a copy of the supplier’s license to furnish such material; (VI) to pollute the environment in levels which may cause damages to the health of human beings, or death of animals or significant destruction of plants; (VI) to research or extract mineral resources without authorization or license, etc.

Civil and Class Actions

According to Brazilian law, not only the Government Attorney, but also state owned corporations, independent governmental agencies, organizations or consumers engaged with environmental protection have standing to sue. Moreover, under the Brazilian Federal Constitution, any citizen is entitled to propose a class action against any person responsible for a damaging act to the environment, whether it is the government or a private person.

IV. Brazilian Institute for Environmental and Renewable Natural Resources (IBAMA)

IBAMA - Brazilian Institute for Environmental and Renewable Natural Resources is a federal administrative agency and operates under the Ministry of the Environment.  This body is responsible for policing and enforcement of all federal environmental law,  oversee the use of renewable resources, and grant permits.

Reference:

1. farradoboi (Ox feast case) ‑ (Recurso Extraordinário número 153.531‑8/SC; RT 753/101. 3/6/1997.

2. "A Lei ‑ Tradição de Desrespeito", available at ttp://www.farradoboi.org/farra/a_lei.shtml. last visit 07/08/2003. 

3. Fórum Nacional de Proteção e Defesa Animal Vs. Municipio de Sao Paulo130 Vara da Fazenda Pública .juiz Olavo Sá Pereira da Silva.

4. Sao Paulo method of lethal injection, available at http://www.carrocinhanuncamais.com/ccz_sampa/sampa1.html last visit 08/05/03. 

5. O Estado de São Paulo. LEVAI, Laerte Fernando. "Crimes Contra a Fauna", available at http://www.estado.estadao.com.br/jornal/suplem/agri/98/11/25/agri001.html. Last visit 07/23/03 .

6. Jus Navigandi, SANTOS, Antônio Silveira R. dos. "Maus‑tratos e crueldade contra  animais: aspectos jurídicos", available at http://www1.jus.com.br/doutrina/texto.asp?id=1718. Last visit 07/15/03.