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Federal Supreme Court Coordinator of Court Precedents Analysis Dje nº 198 Disclosed 10/13/2011 Published 10/14/2011 05/26/2011 Full Court Direct Action of Unconstitutionality 1.856 Rio de Janeiro Rapporteur : Judge Celso de Mello Petitioner : General Prosecutor of the Republic Defendant : Governor of the State of Rio de Janeiro Defendant : Legislative Assembly of the State of Rio de Janeiro

SUMMARY: DIRECT ACTION OF UNCONSTITUTIONALITY – COCKFIGHTING (RIO DE JANEIRO LAW Nº 2.895/98) – STATE LEGISLATION ENCOURAGING THE CRIMINAL PRACTICE RELATED TO THE DISPLAY AND COMPETITIONS OF BREEDS OF FIGHTING BIRDS – LEGISLATIVE STATUTE ENCOURAGING ACTS OF CRUELTY ON FIGHTING COCKS – ENVIRONMENTAL CRIME (LAW Nº 9.605/98, ART. 32) – ENVIRONMENTAL LAW – RIGHT TO PRESERVING INTEGRITY (FEDERAL CONSTITUTION, ART. 225) – QUALIFIED PREROGATIVE BASED ON THE SOCIAL IMPACT – THIRD GENERATION RIGHT (ALSO CALLED OF NEW DIMENSION) THAT CONSECRATES A POSTULATE OF SOLIDARITY. CONSTITUTONAL PROTECTION OF THE FAUNA (FEDERAL CONSTITUTION, ART. 225, §1º, SECTION VII) – NON-CHARACTERIZATION OF COCKFIGHTING AS A CULTURAL MANIFESTATION – RECOGNITION OF UNCONSTITUTIONALITY OF THE STATE LAW INCRIMINATED – DIRECT ACTION GRANTED. STATE LEGISLATION LEGALIZING THE ORGANIZATION AND COMPETITION BETWEEN FIGHTING BIRDS – A NORM INSTITUTIONALIZING THE PRACTICE OF CRUELTY TOWARDS THE FAUNA - UNCONSTITUTIONALITY.

- The promotion of cockfighting, in addition to being a criminal practice in violation of environmental law, constitutes a conduct affecting the Constitution of the Republic, which prohibits the submission of animals to cruelty. The perverse nature of cockfighting, similar to that of “farra di boi” (RE 153.531/SC) does not allow such a practice to be qualified solely as an innocent cultural manifestation of folkloric character. Case law.

- The judicial and constitutional protection afforded to

the fauna includes wild animals, both domestic and domesticated animals, the latter category including cocks used in fights, since the text of the Constitution prohibits, in a different clause, any form of animal cruelty.

- This special protection, which bases its legitimacy

on the authority of the Constitution of the Republic, is justified

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by the necessity to prevent risks threatening or endangering all form of life, not just human life, but also animal life, whose integrity would be compromised without the constitutional ban on degrading, perverse and violent practices towards irrational beings, such as fighting birds (“gallus-gallus”). Legal doctrine.

ALLEGATION OF DEFECTIVE COMPLAINT - The complaint is not defective. In challenging the

constitutional validity of the state law, the complaint (a) refers to the constitutional standard, which authority was at risk of being violated, (b) clearly establishes the antagonistic relations between a state law of minor importance in the legal order and the Constitution of the Republic, (c) provides intelligible basis to the claimant’s arguments supporting the claim of unconstitutionality, and (d) objectively recognizes the legal basis of the petition and the subsequent declaration of constitutional illegitimacy of the state law within the process of abstract judicial review, thus defining the material scope of the decision to be pronounced by the Supreme Tribunal Federal. Case law.

DECISION

After analyzing, reviewing and discussing the case, the Judges of the Supreme Court, in Plenary Session, under the Presidency of Judge Cezar Pelluso, and in conformity with the minutes of the trial and the stenographic transcripts, have agreed by a unanimous vote to dismiss the preliminary defense and, on the merits, also by a unanimous vote, to allow the direct action to proceed to declare unconstitutional the Law nº2.895, passed on 20th of March, 1998, of the State of Rio de Janeiro, following the terms of the Rapporteur’s decision. Judge Ellen Gracie justified her absence.

Brasília, 26th of May, 2011 (signature) CELSO DE MELLO - RAPPORTEUR

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05/26/2011 Full Court DIRECT ACTION OF UNCONSTITUTIONALITY 1.856 RIO DE JANEIRO RAPPORTEUR : JUDGE CELSO DE MELLO CLAIMANT : GENERAL PROSECUTOR OF THE REPUBLIC DEFENDANT : GOVERNOR OF THE STATE OF RIO DE JANEIRO DEFENDANT : LEGISLATIVE ASSEMBLY OF THE STATE OF RIO DE JANEIRO

REPORT

JUDGE CELSO DE MELLO – (Rapporteur): the General

Prosecutor of the Republic proposed a direct action of

unconstitutionality aiming to question the judicial and

constitutional validity of the law of the state of Rio de Janeiro

nº2.895, passed on the 20th of March in 1998 (p. 02-04).

The Rio de Janeiro state law nº2.895 was amended with

the purpose of legitimizing the organization and the display of

competition between non-wild birds, as follows (p. 05-06):

“LAW Nº2.895 of March 20th 1998. AUTHORIZES THE ORGANIZATION OF EXHIBITIONS AND

COMPETITIONS BETWEEN BREEDS OF FIGHTING BIRDS (NON-WILD BIRDS)

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TO PRESERVE AND DEFEND THE GENETIC HERITAGE OF THE SPECIES GALLUS-GALLUS.

THE GOVERNOR OF THE STATE OF RIO DE JANEIRO,

I hereby affirm that the Legislative Assembly of the

State of Rio de Janeiro enacts the following law, which I

authorize:

Art. 1º - The creation and organization of exhibitions and competitions between fighting birds of the breed "Gallus-Gallus" is allowed and regulated under the terms herein.

Art. 2º - The sporting activities of cockfighting inherent to the preservation of breeds of fighting birds shall be held in enclosures and/or suitable venues in Associations, Clubs or Sport Centers called “rinhadeiros” [ring].

Art. 3º - All sport Associations, Clubs or Sport Centers shall comply with the general norms enacted in the Law. Additionally, the Federation of Sport and Preservation of Fighting Birds of Rio de Janeiro State shall enact annual regulations, for purposes of enabling the preservation of fighting birds in annual competitions held in accredited venues.

Art. 4º - Military forces and fire brigades are competent authorities to issue the permit allowing the annual organization of cockfights (exhibitions and competitions) to the Associations, upon request and payment of a tax to the Treasury.

Art. 5º - As a preventive measure to attendees, competent authorities shall inspect the venues annually before issuing the permit.

Art. 6º - Prior to the competitions, a veterinarian and/or a licensed assistant shall certify the health status of the participating birds.

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Art. 7º - For international competitions, birds coming from abroad shall be kept in observation for a minimal period of 72 hours. Such requirement also applies to birds with health certificates. Art. 8º - To preserve the silence, the order and the peace in the public space, the practice of cockfighting is strictly prohibited on venues located within a minimal distance of 80 meters from churches, schools and hospitals. Art. 9 - The access and presence of minors under 16 is prohibited at competition venues, unless accompanied by the parents or guardians. Art. 10 – The Federation of Sport and Preservation of Fighting Cocks of Rio de Janeiro State shall enact regulatory standards for the enrollment and accreditation process of Associations, Clubs and Sport Centers, within 30 days of the enactment of the present law. Art. 11 – The present law will take effect the day of its publication, any provisions contrary to the present law shall be revoked. Rio de Janeiro, 20th of March, 1998.” (emphasis mine)

The author of this direct action of unconstitutionality

claims the unconstitutionality of the above-mentioned statute,

alleging that such norm, in “allowing the organization and the

display of competitions between breeds of fighting birds (non-

wild animals),” violates art. 225 “caput”, c/c §1º section VII of

the Constitution of the Republic.

Here is a summary of the arguments of the General

Prosecutor of the Republic in seeking the justify

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the claim of unconstitutionality now under review (p. 02-04):

“(…) regardless of the legislative intent of the statute, which constitutional and judicial validity is being questioned in the present direct action of unconstitutionality, it remains undisputed and manifest that State Law nº 2.895/98 allows the practice of a competition that subjects animals to cruelty, by regulating rings for instance, in obvious violation of the Constitutional rule banning cruel practices involving animals. By acting in opposition to the protection mandate regarding the fauna and flora as a way to ensure the effectiveness of the constitutional right to an ecologically balanced environment, and by acting in opposition to the prohibition on animal cruelty practices, the Rio de Janeiro State Legislature has acted outside of the programmatic constitutional norm.1 There is a contradiction between the statutory language and the Constitution, as the state legislator violated the obligation states have to intervene for the defense of the environment (art. 225, ‘caput’). To illustrate such obligation incumbent on the States, it is relevant to quote Professor JORGE BUSTAMANTE ALSINA: ‘in virtue of the police duty of the Nation and the regions to protect life, property, safety, morality and public health, the State has a duty to adopt laws or regulations regulating such activities, for the purpose of environmental conservation’ (…) (‘in’, DERECHO AMBIENTAL – Abeledo-Perrot-Buenos Aires, p.61-62).” (emphasis mine).

1 In civil legal traditions, programmatic constitutional norms set objectives directing institutions to complete the intent of the constitutional legislator. Such norms are usually directed to the Legislature. Although programmatic constitutional norms are to be complemented by the Legislature, and any inferior norms in the legal order that contradicts an objective contained in a programmatic constitutional norm can be declared unconstitutional.(TN)

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In providing the requested information, the Rio de Janeiro

State Legislative Assembly moved to request the dismissal of the

direct action of unconstitutionality, arguing the constitutional

validity of the contested law (p. 38-41):

“In responding to the request nº 336/P for further information to instruct the DIRECT ACTION OF INCONSITUTIONNALITY Nº1856, directed at STATE LAW Nº2895, of 03.20.98, we hereby attach a copy of the legislative history of LEGISLATIVE PROPOSAL Nº1285/85, which resulted in the above-mentioned law (DOC.I). In addition to such legislative history, we deem relevant emphasizing that, in this case, and over the process of translating norms into adequate law, the Legislative Chamber was driven by the willingness to regulate this activity. Once promulgated, the law would officially enable the inspection of various associations and sport federations of cockfighting, and would subject such activity to the authorization and supervision of the Government, to ensure such activity is practiced in adequate venues and that such activity abides by strict safety rules. From a social perspective, such law is an obvious and strong instrument allowing the integration of rural communities through the creation of numerous jobs – similarly to other States. There are approximately 100 (one hundred) cockpits and more than 70 (seventy) sport centers in Rio de Janeiro. On the judicial aspect of this case, and without prejudice to the previous considerations, we shall emphasize that the state law with the constitutional provision of art. 225 ‘caput’ c/c §1º section VII, are not contradictory. Indeed, and according to the teachings of emeritus Prof. José Alfonso da Silva (‘in’, ‘Direito Ambiental Constitucional’, Malheiros, S{ao Paulo, 2ª ed., 1995, p.128 ‘usque’ 129), in the third commentary on the constitutional mechanism,

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the Constitution of 1988 no longer affords the Union an exclusive competence to legislate on hunting, fishing and fauna. Rather, the 1988 Constitution limited the authority of the federal Legislature to enacting general norms only, while affording the States and the Federal Districts joint competence to regulate those fields, and to complement the general norms enacted by the federal government. The eminent Professor observes that the fauna as a component of ecosystems is the subject of the protection. More broadly, Prof. José Alfonso da Silva pursues, the word “fauna” refers to all the animals of a given region of geological period, including aquatic animals, the fauna of trees and of the soil (insects and micro-organisms), and wildlife (mammals and birds). The eminent constitutional law specialist adds that this category does not include domestic and domesticated animals, nor captive animals, in nurseries and zoos authorized under the law. The ‘sub-examen’ hypothesis aims to extend the scope of the constitutional protection to fighting birds, categorized as domesticated birds according to an official declaration by the Brazilian Institute of the Environment and Renewable Natural Resources – IBAMA, an entity attached to the Ministry of the Environment, Water Resources and Legal Amazon region (DOC. II). As a result, fighting birds fall outside the material scope of the constitutional mandate. The claim would not success even if we were to admit, ‘ad argumentum tantum,’ that fighting cocks belong to the wildlife category. A close examination of the normative meaning contained in the expression “(…) prohibition of all practices which (…) subject animals to cruelty” confirms that this section prohibits practices in which there is a human act against the animal, such as it occurs in hunting, bird shooting and the infamous farra do boi. In ‘galismo’ [cockfighting], birds fight in the absence of any direct human interference. The birds battle following their natural fighting instincts, in absence of any coercion. One cannot derive from the Constitution any rule restricting or banning the practice regulated in the state statute under review. The legislative history further informs that the constitutional norm did not refer to cockfighting,

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but was rather directed to the so-called ‘farra do boi.’ Again, the constitutional legislator primarily referred to ‘farra do boi.’ The rationale deriving from both the wording and the spirit of the statute reveals the conformity of the contested law with the Federal Constitution, with no violation whatsoever. Additionally, in a case where there exist two or more interpretations of a legal rule, the principle of conservation of legal norms – derived from the principle of interpretation of infra-constitutional laws and regulations – only admits the meaning allowing for the conservation of the contested law. Such contested law shall not be declared invalid or null when it could be interpreted as conform to the Constitution. In summary, from a legal perspective, law nº 2895/98 remains valid, although a different conclusion might be reached if this law were to be disputed from a philosophical perspective, as many have. Even by admitting to review the law under a philosophical perspective, for the sake of the debate, the claim would fail equally. Over the exercise of its political and legislative power, the legislator has indeed faced a choice: he could either (a) abstain from regulating; or (b) regulate the activity. The legislator chose the second option, by materializing its police powers in normative acts aiming to control the activity [of cockfighting], in compliance with the relevant laws and regulations. With this in mind, we hope and trust that (a) Appeal will be denied given the absence of a right

of action; (b) The petition will be dismissed before the manifest

constitutionality of Law nº 2895/98.” (emphasis mine)

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The Rio de Janeiro Governor, in moving to dismiss the direct action for lack of right of action added the following information as summarized below (p. 52-55): “The defectiveness of the complaint shall be emphasized. The author, using a poor argumentation, does not indicate which provisions in the contested law would be facially contrary to the Federal Constitution. The author further fails to substantiate the specific reasons why each of the provisions in the contested law would be unconstitutional. The introduction of the complaint also contains similar errors, by failing to ‘draw a logical conclusion from the account of the facts’ (art. 295, section II of the Code of Civil Procedure). Because the heart of the claim lies in potential animal cruelty, then the reality of animal cruelty must be and can only be substantiated through evidence. However, the standard of the judicial ‘abstract’ review of the Supreme Court does not allow admission of facts and evidence. Respectfully, the defects contained in the complaint call for a dismissal of the direst action, as mandated under section I to III of art. 295 of the Code of Civil Procedure. (…) the complaint does not detail which provisions in the contested law could potentially harm the environment, or to which extent such law would fail to protect the fauna, represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty through practices, according to the language used in the Constitution, defined ‘in the manner prescribed by law’. The limited scope of the constitutional review requires a definition of such practices. However, once defined, violations of the law would only result in ‘illegality’ and ‘not’ ‘unconstitutionality’. The lack of definition [in the constitutional provision] leaves unanswered and highly dependent on the evidentiary context the question of, for instance, whether horse races could be considered unlawful.

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The lack of a legal definition leads to subjectivity, inconsistence and vagueness, arbitrariness, abuse of powers and therefore to the manifest opposition to the constitutional law, which provides that no one shall be obliged or refrain from doing something except by virtue of law (art. 5º section II of the Federal Constitution). Therefore, there is nothing in the contested statute that directly affects the constitutional law. Unlike alleged, the statute provides rules of preservation and establishes police powers to ensure safety during events involving numerous individuals, and thereby securing order during social events. As a consequence of this information, we hope the Honorable Court will move to dismiss summary judgment, or, in the light of the principle of judicial economy, will consider the action unfounded on the merits.” (emphasis mine).

In granting the injunctive relief as requested by the

claimant, the plenary court of the Supreme Federal Tribunal, by a

majority of the votes, ruled in favor of “suspending, until final

judgment on the direct action is made, the execution and

applicability of Law nº 2.895, of 02/20/1998 of the State of Rio

de Janeiro,” in the following ruling (p. 120):

“CONSTITUTIONAL. ENVIRONMENT. ANIMALS : PROTECTION : CRUELTY. ‘BRIGAS DE GALOS’. I. Law 2.895 of 02/20/1998 of the State of Rio de Janeiro, by legalizing and regulating competitions between ‘fighting birds,’ legalizes and regulates the subjection of such animals to

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cruel treatment, which the Federal Constitution does not allow. F.C. art. 225 §1º, VII. II. Injunctive relief is ordered, suspending the effect of law 2.895, of 03.20.1998 of the State of Rio de Janeiro.

His Eminence the General Attorney of the Union,

acknowledging the observations of the Legislative Assembly and

the Governor, gave opinion in favor of the dismissal of the claim

(p. 87-95).

However, the Public Prosecutor’s Office, in accordance with

the learned opinion by the General Prosecutor of the Republic,

ruled in favor of admitting the claim, summarized as follows (p.

97-103):

“Direct action of unconstitutionality. Constitutional and environmental Law. Rio de Janeiro Law nº 2.895, of March 20th of 1998, which regulated ‘cockfighting’ as a sport. Motion to deny summary judgment denied. No necessity to challenge specifically and individually each provision in the contested law. Claimant successfully demonstrated the unconstitutionality of the law. Merit. Article 225, §1º, section VII of the Federal Constitution. The prohibition on subjecting animals to cruel practices applies to all species of the fauna, including domesticated animals and captive wildlife. In favor of granting the action.” (emphasis mine)

This is the report, the Secretary shall give a copy to all

the Eminent Judges of this Distinguished Tribunal (Lei nº

9.868/99, art.9º, “caput”; RISTF, art.172).

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OPINION JUDGE CELSO DE MELLO – (Rapporteur): Mister President, first

and foremost, I shall highlight that contrary to suggested in

the information provided by the State Government of Rio de

Janeiro, the claim submitted by the General Prosecutor of the

Republic is not defective.

Such claim complies in all respect with the required formal

structure for this kind of procedural document, in compliance

with all the requirements set forth in art. 3º of Law nº9.868, of

November 10th of 1999, which provides as follows:

“ Art. 3º. The claim shall provide:

I – The language of the contested law or

regulation, and the legal foundations of the claim for

each challenge made;

II – The claim, properly detailed.”

(emphasis mine).

In the present case, the claim that initiated the present

judicial review contests the constitutional validity of the Rio

de Janeiro Law nº 2.895/1998, indicates the provision allegedly

violated (FC, art. 225, §1º,

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VII), establishes the opposition between the provision under

review and the Constitution of the Republic, provides groundings

for the unconstitutionality claim, and clearly explains such

groundings, and eventually validates the claim. As a consequence,

the claim declared the constitutional illegitimacy of the state

law, thereby defining the material scope of the decision to be

pronounced by the Supreme Federal Tribunal.

It should be noted that in cases virtually similar to this

one (ADI 30/PR, Rapporteur Judge MARCO AURÉLIO – ADI 2.157-MC/BA,

Rapporteur Judge MOREIRA ALVES), the Supreme Federal Tribunal

dismissed the alleged defectiveness of the complaint, as

evidenced in the following summary of the ruling:

“ (…) ALLEGATION OF DEFECTIVE COMPLAINT: DENIED.

- The complaint is not defective. In challenging the constitutional validity of the provision enacted by the Superior Electoral Tribunal, the complaint (a) refers to the constitutional standard, which authority was at risk of being violated, (b) clearly establishes the antagonistic relations between the state provision of minor importance in the legal order and the Constitution of the Republic, (c) provides intelligible basis to the claimant’s arguments supporting the claim of unconstitutionality, and (d) objectively

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recognizes the legal basis of the petition and the subsequent declaration of constitutional illegitimacy of the resolution within the process of abstract judicial review, thus defining the material scope of the court ruling to be pronounced by the Supreme Tribunal Federal.” (RTJ 195/812-816, 814-815, Rapporteur Judge CELSO DE MELLO)

Unlike the view sustained in the documentation submitted

by the State Government of Rio de Janeiro, the fact that the

complaint is based on “cruelty” is not indicative per se that the

constitutional review necessarily requires providing factual

evidence. This is especially true in the present case (“briga de

galos” [cockfighting]), where the birds suffer from injuries when

they fight, as we all know.

With that in mind, I am of the opinion that the claim

submitted by the General Prosecutor of the Republic shall not be

disqualified as defective from a procedural perspective. On the

contrary, such claim turns out to be legally valid and formally

proper to provide grounds for a constitutional review.

The allegation of defective complaint sustained by the Rio de

Janeiro State Governor (p.52-55) and the General Attorney of the

Union (p- 87-95), in which both contend the General Prosecutor of

the Republic

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should have contested the constitutional validity of each of the

11 (eleven) articles of the contested statute, is unfounded.

I am of the opinion that the learned General Prosecution

Office of the Republic is correct in dismissing the allegation of

defective complaint, as follows (p. 97-103):

“The request to declare the complaint defective filed

by the defendant shall be dismissed.

The petitioner asked for a declaration of

unconstitutionality of state law nº 2895/98, founding

its claim on the opposition of the law with art. 225,

§1º, section VII of the Federal Constitution.

The unconstitutionality argued by the author would be

present throughout the entire statute, thus making the

contestation of the constitutionality of each of the

provisions, as requested by the defendant,

unnecessary.”(emphasis mine)

Indeed, the review of the contested statute shows that

the legal reform enacted by the state of Rio de Janeiro aimed to

regulating the “brigas de galos” (cockfighting). In doing so, the

state enacted various rules in the contested law aiming to

enabling and regulating competitions between fighting birds on the

state territory, by determining which venues would or would not be

authorized to organize competitions, by requiring

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that a veterinarian (or a licensed assistant) certifies the

“health status of the participating birds,” by establishing

special regulation of international competitions with “birds

coming from abroad,” while also strictly prohibiting the access of

minors under 18 years-old who are not accompanied by their parents

or guardians. All this provides evidence that the enactment of all

those legal provisions followed one sole purpose: detailing the

regulation of “competitions between breeds of fighting birds (non-

wildlife) to preserve and defend the genetic heritage of the

species gallus-gallus”; such objective being the reason the Rio de

Janeiro State Law nº2.895/1998 exists.

In arguing the unconstitutionality of “briga de galos”

(cockfighting) based on the incompatibility of such practice with

the constitutional provision protecting animals from cruelty, the

claimant challenged the Law nº 2.895/1998, enacted by the State of

Rio de Janeiro in its entirety. The claimant challenged the

entirety of the invalid law because all the provisions in the

contested law were instrumental and geared towards enabling, in

the State of Rio de Janeiro, a practice considered unlawful and

criminal in the Brazilian positive legal system,

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as provided in art. 32 of the Law nº 9.605/1998 which provides the

following criminal definition:

“ Art. 32. Committing abuses, mistreatment, injuring

or mutilating wild, domestic or domesticated, native or

exotic animals:

Penalty – detention, three months to a year, and fine.

§ 1º The same penalty applies to whoever proceeds

to painful or cruel experiments on a live animal,

including for education and scientific purposes, when

alternatives exist.

§ 2º The penalty is increased by a one sixth to one

third in case of the death of the animal. (emphasis

mine)

This is why the various provisions composing the statute

under review can be justified only in regards to the statute as a

whole. Even if such provisions were to be replaced, they would

still fail to modify the ultimate purpose of the statute for which

the provisions were drafted: the organization of “competitions

between breeds of fighting birds (non-wildlife)”.

It is therefore unnecessary to contest each of the

provisions of the contested statute.

The formal examination by the Eminent General Prosecutor

of the Republic of the entire statute through which the State of

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Rio de Janeiro locally regulated “briga de galos” (cockfighting)

is therefore correct.

With these observations in mind, I now proceed to

examine the merits of the present constitutional contention, based

on the manifest unconstitutionality of the Law nº 2.895/1998,

enacted by the State of Rio de Janeiro.

The claim of unconstitutionality directed to the statute

is based on the practice of acts, indisputably cruel towards the

birds of fighting breeds (“gallus-gallus”). These birds are

subjected to mistreatments in competitions promoted by offenders

to constitutional and environmental law, who violate by their

criminal conduct, art. 225, §1º, section VII of the Constitution

of the Republic, which contains the following prohibition:

“Art. 225

§1º - In order to ensure the effectiveness of this

right, it is incumbent upon the Government to:

VII – Protect the fauna and the flora, with prohibition,

in the manner described by law, of all practices which

represent a risk to their ecological function,

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cause the extinction of species or subject animals to

cruelty.” (emphasis mine)

The protection of the fauna and more specifically the

prohibition of practices that “subject animals to cruelty”

indicate that the constitutional legislator intended to ensure the

effectiveness of the fundamental right of the preservation of the

integrity of the environment. Such fundamental right abides by a

broad and inclusive concept of the environment, which embraces the

notions of natural environment, cultural environment, artificial

environment (urban areas) and working environment, as theorized by

the legal doctrine (CELSO ANTÔNIO PACHECO FIORILLO, “Curso de

Direito Ambiental Brasileiro,” p.20-23, section n. 4, 6th ed.,

2005, Saraiva; JOSÉ ALFONSO DA SILVA, “Direito Ambiental

Constitucional,” p. 21-24, sections ns. 2 and 3, 4th ed./2nd pub.,

2003, Malheiros; JOSÉ ROBERTO MARQUES, “Meio Ambiente Urbano,”

p.42-54, section n.4.2005, Forense Universitária, v.g.).

At this point, it should be emphasized that the

provision in art. 225, section VII, §1º of the Constitution of the

Republic not only conveys an ethical and legal value, but also

grants a rationale for such prohibition, which that of the

necessity to prevent risks threatening or endangering all form of

life, not only human life, but also animal life,

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whose integrity would be compromised by degrading, perverse and

violent practices directed to irrational beings.

It therefore emerges from the constitutional provision

invoked by the claimant (FC, art. 225, §1º, VII), the intent of

the constitutional legislator to establish a link between the

respect for the fauna and environmental protection, making of the

respect for the fauna in general an absolute condition for the

survival and the preservation of the environment, on which humans

also depend.

The close connection between the duty of ethical and

legal nature to protect the fauna (and to not engage in cruel

practices towards the animals), and the survival of mankind in an

ecologically balanced environment is thus manifest.

As a result, Mister President, we should acknowledge the

highly detrimental impact of predatory and harmful conducts

towards wildlife on environmental conservation, whether such

conducts involve jeopardizing ecological functions, endanger

species or even subject animals to acts of cruelty.

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Hence the importance of the provisions listed under art.

225 of the Constitution, which all translate the consecration at a

constitutional level of one of the most meaningful prerogatives

among modern societies in our legal system.

This prerogative, goes well beyond protecting individual

interests in recognizing that all have a right to an ecologically

balanced environment.

As previously developed by the Supreme Federal Tribunal

(RTJ 158/205-206, Rapporteur Judge CELSIO DE MELLO), and as

exposed in the work of CELSO LAFER (“A Reconstrução dos Direitos

Humanos”, p. 131-132, 1988, Companhia das Letras), such right [to

an ecologically balanced environment] is typical of a third-

generation human right afforded to mankind, outside purely

individual consideration. The nature of this right justifies the

specific duty – incumbent upon the Government and the communities

(PAULO AFFONSO LEME MACHADO, “Direito Ambiental Brasileiro”, p.

138-141, section n. 3, 19th ed., 2011, Malheiros) – to defend and

to protect the environment, to the benefit of present and future

generations. Such duty also aims to averting serious inter-

generational

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conflicts due to the lack of solidarity in preserving the

integrity of such essential common goods.

Because of the well-founded concerns peoples and the

international community have expressed on the issue of human

rights, it is relevant to acknowledge, Mister President, that

these rights, in their affirmation and as they consolidated,

include various levels of interpretation and approaches, each of

which fall within different categories.

In such a context, as pointed out before by this Court

(RTJ 164/158-161), first-generation human rights (civil and

political rights) include classic freedoms, negative or positive,

which come in support of the principle of liberty.

Second-generation rights (economic, social and cultural

rights) reflect positive freedoms, real or concrete, in support of

the principle of equality.

The third generation of human rights, M. President, embody

collective powers which are owned generically in a

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diffused manner by all the members of social groups. These rights

consecrate the principle of solidarity and thereby constitute,

along with fourth-generation human rights (those include the right

to development and the right to peace), an important step in the

process of the expansion and recognition of human rights as

fundamental inalienable values, as theorized by the legal doctrine

(CELSO LAFER “Desafios: Ética e Política,” p.239, 1995,

Siciliano).

The following excerpt of PAULO BONAVIDES’s lesson

(“Curso de Direito Constitucional,” p.481, section n.5, 4th ed.,

1993, Malheiros) insists on the third-generation human right to an

ecologically balanced environment:

“ The new legal field of the human rights to freedom

progressively came to include the principles of liberty

and equality. First characterized by humanism and

universality, over the end of the century, the third-

generation rights have tended to crystallize on rights

that are not specifically directed to the protection of

individual interests, of a group or a determined State.

These rights primarily address mankind,

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as a supreme value of life. Legal commentators and

lawyers are already familiar with third-generation human

rights, thereby achieving a thirty-year movement towards

the materialization of fundamental rights. These rights

gave rise to reflections on the topics of development,

peace, environment, communication and world human

heritage.”(emphasis mine)

The concern over the environment – which is now

expressed across generations and commands to act in favor of

future generations (PAULO AFFONSO LEME MACHADO, “Direito Ambiental

Brasileiro,” p. 138-141, section n.3, 19th ed., 2011, Malheiros) –

have become an object of regulation and legal proclamations not

only in the national laws of sovereign states, but also in

international declarations, illustrating nations’ infallible

commitment to respecting this fundamental right [to an

ecologically balanced environment].

Since the Stockholm Declaration on the environment

(1972) and the conclusions of the United Nations Conference on the

Environment and Development (Rio/92), the environmental issue has

now become one of the most significant subject in the new

international agenda (GERALDO EULÁLIO DO NASCIMENTO E SILVA,

“Direito Ambiental Internacional,” 2nd ed., 2002,

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Thex Edition), even more so since the recognition that humans have

the fundamental right to freedom, equality and adequate conditions

of life, in an environment of a quality that permits the

development of their full potential and a life of dignity and

well-being.

On that topic, the contribution of the learned JOSÉ

AFONSO DA SILVA (“Direito Ambiental Constitucional,” p. 60-70,

section n. 7, 7th ed., 2009, Malheiros) is valuable:

“The ‘Stockholm Declaration’ has paved the way to the

recognition of the existence of an ecologically balanced

environment as a ‘fundamental right’ in constitutions,

just as social human rights ‘yet to be fulfilled’ and

those that ‘shall be preserved.’

The important point (…) is to realize that the right to

life, the basis of all other fundamental human rights,

must lead environmental protection. The [protection of]

the environment is a preponderant factor, and as such,

it must stay superior to any other considerations like

the concern over the development, the protection of

property rights, or considerations of the private

sector. These latter rights are also protected under the

Constitution, but they cannot supersede the fundamental

right to life, which protection is directly ensured

through environmental protection. Indeed, the protection

of a qualitative environment is paramount because it is

through the protection of the environment that we can

protect a superior value, that of ‘the quality of

life.’” (emphasis mine)

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Mister President, the idea clearly begins to emerge that

the environment is inherent to public heritage, and that social

and government institutions must protect it as such. The necessity

to protect the environment translates into a strict obligation

that falls equally on public authorities and the people, for the

benefits of present and future generations (MARIA SYLVIA ZANELLA

DI PIETRO, “Política do Meio Ambiente”, “in” Revista Forense 317-

179, 181; LUÍS ROBERTO BARROSO, “A Proteção do Meio Ambiente na

Constituição Brasileira”, “in” Revista Forense 317/161, 167-168,

v.g.).

In reality, Mister President, the right to a preserved

environment is a legal right collectively hold, reflecting within

the process of the affirmation of human rights, the expression of

a right granted not to a single individual, but in a more

inclusive sense, to the community as a whole.

National legal systems and legal declarations at the

international level are therefore no longer indifferent to the

recognition of the collective ownership of the right to a

preserved environment, as well as that of the right to an

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ecologically balanced environment, as previously mentioned and as

exposed by eminent authors (JOSÉ FRANCISCO REZEK, “Direito

Internacional Público”, p.223-224, section n. 132, 1989, Saraiva;

JOSÉ AFONSO DA SILVA, “Direito Ambiental Constitucional,” p. 46-57

and 58-70, 7th ed., 2009, Malheiros).

The constitutional law of Brazil creates an obligation

on the Government to protect the fauna by prohibiting practices

that represent a risk to the ecological function of the fauna or

cause the extinction of species or, even, subject animals to

cruelty. This mandate aims at making effective the protection of

the environment as a fundamental right, to eliminate the advent of

inter-generational conflicts.

It bears referring the legal doctrine on wildlife

protection and the work of the Prosecutor of the State of São

Paulo, Dr. DANIEL R. FINK, regarding environmental law and

sustainability (JOSÉ ROBERTO MARQUES, “Sustentabilidade e Temas

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Fundamentais de Direito Ambiental,” p.117, section n.4.1, 2009,

Millenium):

“Protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty (section VII). The flora and the fauna are important components of the natural and biological environment, and they benefit from a particular legal protection under environmental law. The fauna and the flora constitute undoubtedly the most visible aspect of the environment, and people primarily refer to them when evoking the environment. Environmental laws have established different level of restrictions ensuring the protection fauna and the flora. Some protections are partial, and others are strict. The constitutional provision expressed a strict prohibition by prohibiting all practices which represent a risk to the ecological function of the flora and the fauna, cause the extinction of species or subject animals to cruelty. Partial prohibitions are determined based on the degree to which the life, the quality of life and the environment depend on a given species or ecosystem.” (emphasis mine)

The Supreme Federal Tribunal, on the issue of animal

cruelty in several previous decisions, had determined this

practice as directly incompatible with art. 225, §1º, section VII

of the Constitution of the Republic:

“CUSTOM – CULTURAL MANIFESTATION – FOSTERING – PROPORTIONNALITY – PRESERVATION OF THE FLORA AND THE FAUNA – ANIMALS – CRUELTY. The duty of the State to ensure everyone the full exercise of their cultural rights by encouraging the valorization and diffusion of manifestations does not provide an exemption from the rule contained in section (VII) of article 225 of the Federal Constitution,

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which prohibits any practice that has the effect of submitting animals to cruelty. This decision finds the practice referred to as “farra do boi” to be unconstitutional. (RE 153.531/SC, Judge-Rapporteur Judge MARCO AURÉLIO – emphasis mine) “DIRECT ACTION FOR THE DECLARATION OF UNCONSTITUTIONALITY. LAW N. 11.366/00 OF THE STATE OF SANTA CATARINA. LAW AUTHORIZING AND REGULATING THE CREATION AND DISPLAY OF BREEDS OF FIGHTING BIRDS AND THE ORGANIZATION OF ‘BRIGAS DE GALO’ (COCKFIGHTS). Court precedents determined the subjection of animal life to cruelty to be incompatible with the Federal Constitution of Brazil. The claim for a declaration of unconstitutionality was granted to the plaintiff.” (ADI 2.514/SC, Judge-Rapporteur Eros Grau – emphasis mine). UNCONSTITUTIONNALITY. Direct Action. Law nº 7.380/98, of the State of Rio Grande do Norte. Sporting activities involving pure-bred fighting birds. ‘Rinhas’ or ‘Briga de galo’ (cockfighting). Regulation. Inadmissibility. Environment. Animals. Subjection to a cruel treatment. Violation of art. 225, §1º, VII of the FC. Action admitted to proceed before the Court. Legal precedent. The state law that authorizes and regulates practices or sporting activities involving breeds of birds characterized as fighting birds, called ‘rinhas’ or ‘brigas de galos’ (cockfighting), is unconstitutional.” (ADI 3.776/RN, Judge-Rapporteur CEZAR PELUSO – emphasis mine).

Before the Constitution was enacted, this very Supreme

Court, in opinions going back as far as almost 60 (sixty) years

ago, already considered that the ‘brigas de galo’ (cockfights)

should be punished under criminal law for constituting cruelty

acts against said birds (i.g. RE 39.152/SP, Judge-Rapporteur

HENRIQUE D’ÁVILA – RHC 35.762/SP, Judge-Rapporteur AFRÂNIO COSTA),

the Supreme Federal Tribunal recognized that

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“Cockfighting is not just a sport since it abuses the fighting

animals” (RHC 34.936/SP, Judge-Rapporteur CÂNDIDO MOTA FILHO –

emphasis mine).

The opinion that “brigas de galos” (cockfighting)

constitute acts of animal cruelty, is also present in the legal

doctrine (e.g., ALEXANDRE GAETA, “Código de Direito Animal”, p.60-

61, 2003, Madras; DIOMAR ACKEL FILHO, “Direito dos Animais”, p.84,

section n. 8.5, 2001, Themis; EDNA CARDOZO DIAS,

“Inconstitucionalidade e Ilegalidade das Rinhas de Galo”, “in”

Fórum de Direito Urbano e Ambiental, p.2.041, year 3, n.8, nov-

dec. 2004, Fórum edition; EDNA CARDOZO DIAS, “A Tutela Jurídica

dos Animais”, p.182-198, section n. 5.5.1., 2000, Mandamentos;

HELITA BARREIRA CUSTÓDIO, “Crueldade Contra Animais e a Proteção

Destes como Relevante Questão Juridico-Ambiental e

Constitucional”, “in” Revista de Direito Ambiental, p.60-61,

section n.2.3, year 2, july-sept. 1997), as exposed in the

following excerpt from LÍLIA MARIAL VIDAL DE ABREU PINHEIRO

CADAVEZ’s work (“Crueldade Contra os Animais: Uma Leitura

Transdisciplinar à Luz do Sistema Jurídico Brasileiro”, “in”

Revista Direito Justiça, vol.34, nº1, p.113-115, section n.3.3.1,

jan.-june, 2008. ediPUCRS):

“This analysis will focus on the ‘brigas de galo’ (cockfights), given their effects on the social and legal field (…). There are attempts to legalize

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this practice in Brazil, on the grounds that is a ‘practice which is part of a cultural manifestation in several regions’ and an ‘already existing reality and entrenched in society’. In those fights, animals are provoked by humans, who place them in an arena to fight, until one of the two contenders dies. This practice involves acts of cruelty. The birds undergo preparation before the fight: their crest and barbels are cut with no use of anesthesia, and the beak and the spurs are reinforced with stainless steel. The fight only ends when one of the animals die. According to Helita Barreira Custódio, the constitutional principle of cruelty considers animal cruelty any violent display of fights between living beings until exhaustion or death. Similarly, Édis Milaré refers to cockfighting as a cruel practice towards the fauna, where ‘the concept of cruelty matches the idea of subjecting the animal to unnecessary suffering.’ Our Federal Constitution of 1988 prohibits practices that subject animals to cruelty. Such prohibition therefore applies to cockfighting according to Érika Bechara: ‘would anyone dare to claim that cockfights are necessary to the well-being of the community?’ The Supreme Federal Tribunal itself adopts such position (…). José Rubens Morato Leite considers that the opinion of the Supreme Federal Tribunal regarding the ‘brigas de galo’ is a correct interpretation of the constitutional prohibition on animal cruelty, and that such interpretation entails that ‘the ideological integrity of the constitutional text shall not give in to the idea that these cruel practices are legitimately part of a broader cultural heritage in certain communities […].’ According to Paulo Affonso Leme Machado, activities involving fights of animals are crimes under art. 32 of the Law nº 9.605/98 on Environmental Crimes, as previously mentioned. The ‘brigas de galos’ are considered cruel practice towards animals. The Regional

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Federal Tribunal of the 4th region offers a similar interpretation, as follows:

‘SUMMARY: Administrative. Environment. Cockfighting. Considering the recent case law of the Supreme Court, defining the briga de galo (cockfighting)as a cruel practice towards animals is lawful. Sport Competition, Animal Cruelty. Prohibition to Organize. Abusive Practice, Prejudice, Fauna. Lawfulness, Sanction, Brazilian Institute of the Environment and Natural Resources (IBAMA).’

Similarly, the Justice Tribunal of the state of Rio Grande do Sul, in a more recent decision on April 11th of 2005, declared by a majority of the votes the unconstitutionality of the Law nº 310-01/2001 of November 27th 2001 voted by the Municipality of Fazenda Vilanova, allowing ‘the organization of competition and display of fights between exotic breeds of fighting birds, under the license of the IBAMA, with purposes of preservation of such birds species,’ as follows:

‘SUMMARY: Direct Action of Unconstitutionality. Constitutional. Environmental. Brigas de Galo (Cockfighting). The municipal law allowing the organization of competition and display of fights between exotic breeds of fighting birds is manifestly unconstitutional for violating articles 8º and 13, ‘caput’ and section V of the State Constitution and art. 22 section I, and 30 section I and II of the Federal Constitution. Firstly, the Union retains exclusive competence over criminal law, and a municipal law cannot decriminalize a conduct defined in art. 32 of the Law on Environmental Crimes. Secondly, Municipalities have a duty to promote the protection of the environment, by banning practices that subject animals to cruelty. The direct action shall proceed. Unanimously.’

The Rapporteur of the Decision, Judge Maria Berenice Dias, says the Law nº 310-01/2001 enacted by the Municipality of Fazenda Vilanova, in authorizing competitions between ‘fighting birds,’ allows and regulates the subjection of these animals to a cruel treatment,

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which the Federal and State Constitutions does not allow.” She also reminds the Court that the ‘brigas de galos’ (cockfights) carry a criminal penalty, under art. 32 of the Law nº9.605/98 (Law on Environmental Crimes). Although this study did not primarily focus on the analysis of the State and Municipal legislation prohibiting animal cruelty, we should also mention the Municipal Law nº9.770 of June 17th of 2005, prohibiting ‘brigas de galo’ (cockfighting). Art. 1º of the law ‘prohibits cock and dog fights in the Municipality of Porto Alegre’. We can thus conclude that the ‘brigas de galo’ are practices considered cruel under our current Federal Constitution. Such practices do not fit into the category of practices necessary to humans, since they subject the animal to a suffering absolutely unnecessary. The recognition of the constitutionality and the legality of such practice amounts to a ‘Constitutional fraud.’ Such activities solely grounded on cultural or entertainment justifications cannot be allowed.” (emphasis mine).

I thus consider, Mister President, that the Law nº 2.895

of 03/20/1998 enacted by the State of Rio de Janeiro – which is

virtually identical to the Santa Catarina Law nº 11.366/2000,

declared unconstitutional by this very same Court in decision ADI

2.514/SC, Judge-Rapporteur EROS GRAU - conflicts with art. 225,

§1º, VII of the Constitution of the Republic prohibiting cruel

practices against animals, and as incriminated under Law nº

9.605/98 (art. 32) which makes of mistreatments on animals an

environmental crime.

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As pointed out by the His Eminence Judge CARLOS

VELLOSO’s opinion, the protection afforded to animals in the last

part of art. 225, §1º, section VII of the Constitution, covers

wildlife as well as domestic and domesticated animals, fighting

birds being included in the latter category, the constitutional

provision prohibiting all forms of animal cruelty.

Mister President, I don’t see any reasons to modify this

interpretation given its consistency with the established case law

of the Supreme Court regarding the meaning of art. 225, §1º,

section VII of the Constitution.

In reality, and as established by legal doctrine (e.g.,

BRUNO AURÉLIO GIACOMINI ROCCO, “Algumas Considerações sobre o

Convívio entre o Homem e os Animais” [Considerations On The

Coexistence Between Humans And Animals], “in” Revista de Direitos

Difusos, vol. 11/1.421, section n.5, Feb./2002, Esplanada-ADCOAS;

DANIELLE TËTU RODRIGUES, “Tutela da Fauna: Reflexões sobre a

Tutela Penal Brasileira”, “in” Boltim Informativo Juruá 315, p.13,

16 to 28 Feb./2002; ERIKA BECHARA, “A Proteção da Fauna sob a

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Ótica Constitucional”, p.22-23, section n.2.3, 1st ed., 2003,

Juarez de Oliveira ; LUIZ REGIS PRADO, “Direito Penal

Contemporâneo,” p. 327, section n.4, 2007, RT), domestic animals,

such as cocks, are deemed included in the broad concept of fauna.

This justifies extending application of art. 225, §1º, section VII

of the Constitution to birds used during “briga de galos”

(cockfights), in line with the consistent case law of this Court.

It is worth observing, as previously mentioned, that

environmental law reinforces the prohibition on cruel practices

against animals, especially those involving “brigas de galos.”

This is specifically true for the (environmental) Law nº 9.605 of

02/12/1998, which incriminates the following conducts:

“Art. 32. Committing abuses, mistreatment, injuring or mutilating wild, domestic or domesticated, native or exotic animals: Penalty – detention, three months to a year, and fine. § 1º The same penalty applies to whoever proceeds to painful or cruel experiments on a live animal, including for education and scientific purposes, when alternatives exist. § 2º The penalty is increased by a one sixth to one third in case of the death of the animal.” (emphasis mine)

The rationale of this law, which reflects the dominant

opinion in case law, is grounded in the legal doctrine (PAULO

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AFFONSO LEME MACHADO, “Direito Ambiental Brasileiro”, p.887-888,

10th ed., 2011, Malheiros), which insists on the following

aspects:

“Art. 225 of the FC provides: ‘§1º In order to ensure the effectiveness of this right, it is incumbent upon the Government to: (…) VII – protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.’ Animals are part of the fauna and, as a result, it is incumbent on the Government to protect them (art. 225, §1º, VII of the FC). Such protection, as a general duty, is dependent on infra-constitutional law. Three types of practices are prohibited, and such prohibitions would be the most effective ‘in the manner prescribed by law,’ even though the Federal Constitution already enacts such prohibitions. The Federal Constitution established that practices subjecting animals to cruelty are prohibited. The SFT, using admirable consistency, ruled in favor of animal protection in cases that are now considered emblematic such as the ‘farra do boi’ in Santa Catarina, and the declaration of unconstitutionality of state laws allowing cockfighting. One of the definitions of cruelty is the lack of sensitivity resulting in indifference or even pleasure regarding the suffering of another being. In protecting animals from cruel acts, the Federal Constitution expects that the life of animals be respected. The Constitution does not explicitly say that animals have a right to life, but it is logic to interpret that the protection applies to live animals, as opposed to dead animals. The preservation of animal life is a constitutional duty incumbent on the Government, which prohibits causing death to an animal without an explicit and acceptable justification.” (emphasis mine)

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It bears attaching the following excerpt of a statement

by Honorable Regional Prosecutor of the Republic, Dr. WELLINGTON

CABRAL SARAIVA, extracted from the Civil Appeal nº479.743/PE (TRF

5th Region):

“44. Years ago, the lawyer Edna Cardozo Dias, a member of the Technical Chamber of Legal Affairs of the NATIONAL COUNCIL OF THE ENVIRONMENT (CONAMA), filed the following petition to the General-Prosecutor of the Republic in support of a direct action of unconstitutionality against the Rio de Janeiro State Law no 2.895 of March 20th, 1998, which allowed the illegal and unconstitutional practice of cockfighting. The lawyer detailed the perversity at work in these competitions:

‘Training – For about one year, the cock is being trained for fighting and endure seventy-nine days of preparation. During this preparation, the animal is “pelinchado,” which means that the feathers around its neck, legs and under the wings are trimmed. Additionally, the barbels and eyelids undergo surgical procedure. As the basic training starts, a life of suffering starts for the birds. The trainer, holding the animal by the neck and the tail or by the wings, throws the bird from above and let it fall on the floor to fortify its strength. An alternative method is to drag the bird by the tail, drawing round shapes on the ground, making sure the legs of the animals are separated and that the space between the legs is in contact with the floor. Afterwards, the bird is suspended by its tail to fortify its nails in the sand. Another exercise consists of spinning the bird in the air while holding it by the neck. The animal is then brushed to develop the muscles and to sharpen the color of the legs, bathed into cold water and left on the floor until he opens the beak from exhaustion. All this is meant to increase resistance. […] The bird spends its entire life imprisoned in a small cage, and is only able to enjoy wider spaces during the training…

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The animal is also deprived of a normal sexual life. The time for the bird to fight comes. After the pairing (with another fighting bird), comes the “topo,” which is the betting between the two owners of the birds. The bets then open. The cocks enter the ring, wearing fake spurs made of metal and a silver beak (the silver beak is more harmful and can also be used as a replacement for a broken beak). The fight lasts for 1h 15 mn, with four 5 mn breaks. If the cock is “tucado” (if he receives a fatal blow) or is “half-tucado” (if he is knocked out), the hysteric crowd bets advances, which are bets benefitting the opponent. If the bird remains on the floor for 1 mn, the referee allows the owner to “figure” the cock (to try to put it back on its feet). If the bird manages to stand up for 1 min, the fight continues. If he falls back, the bird loses. The bird is considered “scared” when he suffers a very painful blow and abandons the fight. If the fight goes on for more than 1h and 15 mn with no winner, this is a tie and the “topo” (the bets) is cancelled. The audience can bet until the break. The term “galo carreirinha” refers to a bird that exhausts his opponent by running around the ring and then turns to him to finish him. The term “Galo canga” refers to the bird that crosses its neck with the opponent, pulling him down until he loses a fighting attitude. The term “galo velhaço” refers to the bird, which in the middle of the fight and while under attack, slips under the legs of the opponent and ambush him. All this provides evidence that cock fights are cruel and can only be enjoyed by individuals with perverse and sadistic personalities’”. (emphasis mine)

We cannot say that the “briga de galos” (cockfighting)

could be qualified as a sport activity, or a cultural practice, or

even as a folkloric manifestation, in a pathetic attempt to trump

the application of the constitutional protection to the fauna,

meant to, among

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other noble intents, to prohibit the criminal practice of animal

cruelty.

“The subjection of animal life to cruelty is not

compatible with the Constitution of Brazil”, this very same

Supreme Court declared with emphasis (ADI 2.514/SC, Judge-

Rapporteur EROS GRAU). More than once, the Court also rejected the

allegation that practices such “briga de galos” (cockfighting) and

“farra do boi” could characterize cultural manifestations,

grounded on existing popular customs and traditions in certain

parts of the national territory, as pointed out by the Honorable

Judge NÉRI DA SILVA in his opinion (RE 153.531/SC, Rapporteur:

Judge MARCO AURÉLIO):

“ There are two ways to examine this matter: one way is to consider that the appeal should be denied, based on art. 215 of the Constitution, which stipulates the following regarding culture:

‘Art. 215 - The State shall ensure to all the full exercise of cultural rights and access to sources of national culture and will support and encourage the appreciation and diffusion of cultural manifestations. §1º - The State shall protect the manifestations of popular, Indian and Afro-Brazilian cultures, as well as those of other groups participating in the national civilization process. §2° - The Law shall provide for the establishment of commemorative dates of high significance for the various national ethnic segments."

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Culture supposes the development of which that contributes to the realization of the dignity of human beings, to citizenship and to the construction of a free, just and united society. These values cannot be distinguished from the exercise of cultural rights and the access to sources of national culture, as provided in art. 215 excerpted above. This is one way of understanding the present matter under a constitutional perspective. There is, however, another way, also under a constitutional perspective, based on art. 225 of the Constitution, and invoked in the appeal. According to art. 225: ‘Art. 225 - All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations. §1º - In order to ensure the effectiveness of this right, it is incumbent upon the Government to: … VII - protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.’ It makes no doubt that those provisions in art. 225 are linked to the principles and values listed in the art. 1º and 3º of the Constitution, defining the fundamental principles of the Republic. I believe the Constitution, in this provision, not only puts under the protection of the State such goods, but it also imposes a duty on the State to effectively prohibit and prevent conducts and activities harmful to the environment from occurring, as said in §3º of art. 225: ‘§3º - Procedures and activities considered as harmful to the environment shall subject the offenders, be they individuals or legal entities, to penal and administrative sanctions, without prejudice to the obligation to repair the damages caused.’ Considering this rule, it is impossible not to see what the end of section (VII)

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of art. 225 of the Constitution provides when prohibiting acts that submit animals to cruelty, and that it is the duty of the State to ban such acts. I thus understand that the principles and values of the Constitution, which contains those superior norms, direct to act towards the banning of practices that bring about not only environmental damage, injury to fauna and to flora, but also cause the extinction of species or any practices subjecting animals to cruelty. For the first time, The Constitution has made this a constitutional norm. Consequently, it does not seem like certain procedures and certain forms of social behavior such as those denounced in the records can be reconciled with these principles, since they are in obvious conflict and constitute an unequivocal attack on these superior rules. Certainly, we shall not ignore (…) demonstrations that are rooted in time and to which prominent figures of the people have participated at a certain time. For this reason, it is difficult for the State to ban these actions. But it is now incumbent upon to the FEDERAL SUPREME COURT, as enforcer of the Constitution, to proclaim this higher requirement, such that the ‘quaestio juris’ is adequately discussed in a suitable forum, in the face of the Constitution. It is to be understood, therefore, that the judgment under appeal, invoking what is contained in art. 215 of the Constitution and the repeated practice of the custom, makes it ‘in fine’ impossible to apply art. 225 section VII of the Constitution. In this decision, the offense to this constitutional precept cannot be overlooked, to the extent that the extraordinary appeal could effectively be approved. I support the appeal and vote in favor of allowing it to proceed, to then determine that the State of Santa Catarina, in the face of art. 225 1° 5, section VII, of the Constitution, should adopt the necessary measures to prevent theses practices offensive to the aforementioned constitutional rule from occurring again.” (emphasis mine)

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The Honorable Judge-Rapporteur MARCO AURÉLIO gave a

similar opinion on the matter, in the previously mentioned RE

153.531/SC:

“On the one hand, and as pointed out by His Eminence, the Minister Maurício Corrêa, the Federal Constitution states that the State has a duty to ensure to all the full exercise of the cultural rights and access to the sources of national culture, and shall support and foster the appreciation and diffusion of cultural expressions. On the other hand -and the Federal Constitution indivisible -, under the title ‘Of The Environment’ of Chapter VI, article 225, section VII imposes on the State, the duty of banning the following:

‘Art. 225. (...) VII- protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.’

(…)cruelty is precisely what we observe years after years in the context of what is referred to as seasonal festivity. Cultural manifestation must be encouraged, but not cruel practices. Once allowed the so-called "farra do boi", in which a deranged mob goes after the animal (a bull) in terrifying ways, as we have seen, no police authority is able to restrict this practice. (…).” It is my understanding that such practice has gotten to such a point as to affect the provision in section VII of article 225 of the Federal Constitution. This case is not about a cultural manifestation deserving protection under the Federal Constitution. As I said previously above, this is a practice which inherent cruelty is dreadful and arises from the actions of people animated by reprehensible passions who pursue, by all means, the sacrifice of the animal.” (emphasis mine)

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PAULO AFFONSO LEME MACHADO (“Direito Ambiental

Brasileiro,” p.885, 19th ed., 2011, Malheiros) has a similar

understanding, by considering that these practices violate the

Brazilian positive legal order, even when such practices are

allegedly rooted in a historical, cultural and/or folkloric

context:

“Even historic or folkloric practices such as the ‘farra do boi’ fall under the scope of art.32 of the law 9.605/98, and both the direct offenders and those who encourage such practices by any means must be penalized as co-authors. The use of instruments on animals during the organization of ‘rodeios’ or ‘vaqueajadas’ (rodeos) also falls under the scope of the crime definition, as the use of such instruments materialize animal cruelty. The use of ‘sedém’ (flank strap) – a strap made of leather strips and ropes, strongly tied around the bull’s flank to compress the genitals and force the animal to jump and buck – also fits the criminal definition of art. 32 of the Law 9.605/98. Undoubtedly, the same can be said about all the activities involving induced animals fight. The ‘brigas de galo’ (cock fights) are considered acts of cruelty towards animals.” (emphasis mine).

Finally, I shall mention the argumentation by the

Honorable Sub-Prosecutor General Dr FLÁVIO GIRON, in his opinion

in favor of the present direct action of unconstitutionality, the

terms of which were approved by the Honorable General Prosecutor

(p. 97-103):

“On the merits, the Federal Constitution clearly

established, in art. 225, that “All have

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the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.” It bears mentioning that the action is directed to the State as an expression of the Government, and consequently to the Legislature to ensure the effectiveness of the right an ecologically balanced environment. §1º of section VII reinforces the provision by imposing a duty on the Government to protect the fauna and the flora, in the manner prescribed by law, of all practices which represent a risk to [the] ecological function[s] [of the fauna and the flora], cause the extinction of species or subject animals to cruelty. Consistent with the intent of ensuring a healthy and ecologically balanced environment, the Law nº9.605 of 2/12/98, entitled ‘Law on Environmental Crimes’ was enacted to increase the effectiveness of the State duty, by incriminating abuse, mistreatment, injury, mutilation and any type of cruelty acts towards animals. It is notable that the Constitution protects all the animals, regardless of their species or classification. On this specific matter, the contribution of the distinguished Professor of environmental law, Édis Milaré (‘in’ Direito Ambiental’, Revista dos Tribunais Edition, 2000, p. 228) is valuable:

‘As previously said, the term fauna should be understood as all the animals living in a determined region, environment or geological period. This includes all the animals of the terrestrial and aquatic fauna, domesticated or not. This invalidates the idea that the fauna only refers to wildlife or non-domesticated animals living in wild areas where no human interferences, as all animals occupy an ecological niche and play a fundamental role in balancing the natural relations between species and ecosystems. In defining a duty for the Government to protect the fauna, art. 225, §1º, section VII of the 1988 Constitution of the Republic extended

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its protection to all animals, indiscriminately, as all living beings have value, fulfill ecological functions and have ecological importance, as species and individuals.’ (…)

The theory that the constitutional protection does not cover domesticated animals does not hold: it simply does not make sense that the constitutional legislator would leave this ‘category’ of the fauna exposed to animal cruelty. Finally, the affirmation that cocks naturally fight simply obeying their ‘instincts’ and absent ‘human interferences’ is puzzling. The documents provided by environmental groups (p.15-23) clearly demonstrate that the birds undergo training and that they are conditioned to fight. According to the documents and unlike sustained by the defendant, such process is conducted by a trainer, whose methods subject the animal to a grueling routine that cannot be considered as the expression of a mere fighting spirit. The human participation in the preparation of the animals for combat is manifest. In the present case of the ‘briga de galos’ (cockfighting), cruelty is blatant. According to documents provided by animal protection groups (p.15-23), the animals suffer from abuses as soon as they undergo training for combat and while competing, when fighting until exhaustion or death. (…) Indeed, the ‘brigas de galos’ (cock fights) constitute an authentic form of animal cruelty and the contested law, in allowing and regulating the organization of competitions between ‘cock fighters,’ legalizes and regulates the subjection of these animals to cruel treatment, something the Federal Constitution does not allow. It should also be noted that cockfighting involves bets rewarding the owner of the winner. As a result, it would be naïve to believe in the absence of a human action throughout this practice, and not assuming that the owner has a lucrative interest in training victorious birds. Indeed, the birds must build resistance over the training phase, so as to increase the chance of winnings.

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With that in mind, the Federal Public Minister is in favor of allowing the direct action of unconstitutionality to proceed, to declare unconstitutional the Rio de Janeiro Law nº2.895, of March 20th of 1998.” (emphasis mine)

Considering the arguments exposed in the materials, and

considering the opinion of the General Prosecution of the

Republic, I rule in favor of allowing the present direct action to

proceed, to declare unconstitutional the Rio de Janeiro Law

nº2.895, of March 20th of 1998.

This is my vote.

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26/05/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

DECISION

JUDGE DIAS TOFFOLI:

Mister President, I do not wish to feed the controversy,

and vote against the direct action based on my understanding of

art. 225, section VII of the Federal Constitution:

“Art. 225

VII – Protect the fauna e the flora, with

prohibition, in the manner prescribed by law (…)”

With all due respect, it is my understanding that the

ordinary legislation has competence to ensure such protection as

well as the level of such protection. In fact, this ordinary

legislation already exists; it is the environmental criminal law.

I therefore remain consistent with what I have argued in

this court in other instances, and vote in favor of leaving this

decision to the Legislature, rather than the Judiciary. Although

considering the brilliant pleading by the Judge-Rapporteur, who I

compliment, I deem the action unfounded.

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26/05/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

DECISION

JUDGE AYRES BRITTO – Mister President, I also wish to rapidly

follow-up on that last intervention.

Art. 225, section VII, §1º provides basis to the law not in

the sense exposed in Judge Dias Toffoli’s opinion; the law here

has another [, broader] intent which is not to solely provide

basis to the enactment of a legislative ban on cruelty. I do not

view [this constitutional provision] as a norm of limited

efficacy, in the terms of José Afonso da Silva, or a norm of

complementary efficacy, in the terms of Celso Ribeiro Bastos.

When paying close attention to the text, we perceive that

such provision is not isolated; the constitutional legislator did

not suddenly include it for no reason; this provision is part of a

constitution context, which originates in the preamble of the

Constitution evoking a fraternal, pluralist society, free of

prejudice. Here, fraternity refers to the notion of something

incompatible with any type of cruelty, especially those resulting

in bloodshed, physical mutilation and death by torture.

In fact, I would even go as far as saying that a Constitution

explicitly promulgated under the protection of God is absolutely

hostile to such type of self-execution by the animals – such as it

is in this case.

JUDGE CELSO DE MELLO – (Rapporteur): This very same

Supreme Court has declared in the past that the subjection of

animal life to cruelty is not just degrading but also absolutely

incompatible with the

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Constitution of the Republic.

For this reason, one of the many various measures the Government

has the duty to take, as a consequence of its constitution mandate

to protect the fauna, is banning the legalization and existence of

animal cruelty practices, presently defined as environmental

crimes.

JUDGE AYRES BRITTO – Precisely.

JUDGE CELSO DE MELLO – (Rapporteur): The prohibition

clause is a direct emanation of the language in the Constitution

(art. 225, section VII, §1º, “in fine”).

JUDGE AYRES BRITTO – In the Constitution.

This is what I [also] think. This type of cruelty is torture,

and the Constitution prohibits torture in art. 5º, section III.

JUDGE DIAS TOFFOLI:

I expressed my decision and did not want to create a

controversy, as my point does not oppose the values in which these

decisions are grounded. The issue is that of determining to whom

the Constitution delegates this duty.

In section seven, we can read: “in the manner prescribed by

law.” I thus understand that the duty falls upon the Legislature

of the National Congress and

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on the state parliaments.

JUDGE AYRES BRITTO – Without a doubt, this is a correct

interpretation of the content of the text.

JUDGE DIAS TOFFOLI: (cancelled)

JUDGE AYRES BRITTO – I wish to conclude by saying the

following: this form of cruelty by torture is implemented through

bloodshed and physical mutilation, with death as the ultimate

goal. The game only derives its worth from the death of one of the

contenders, of one of the birds, which are living being. In other

words, [cockfighting] is a mean. Shedding blood or mutilating the

birds is not even the end goal. The end goal really is the death

of each of the animals; the fight to death or exhaustion. The

Supreme Court should not miss the opportunity to repress this type

of practice on the ground of the Constitution, a practice that is

neither a sport nor a cultural manifestation, as Judge Peluso

pointed out in his previous decision, as attached in the Honorable

Rapporteur’s decision, and as presented in the brilliant decision

by Judge Celso de Mello.

I join the Honorable Judge-Rapporteur’s decision.

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

CLARIFICATION

JUDGE LUIZ FUX – Mister President, as ordered, I proceed to

confirm the interpretation by Judge Celso de Mello.

Nowadays, we couldn’t imagine upholding a law that is

contrary to the Federal Constitution. To that effect, we can refer

to instrumental principles for the interpretation of the Federal

Constitution, fundamental principles of the Federal Constitution

and special principles.

In my opinion, the protection of the environment is both a

principle and a rule that supersedes infra-constitutional laws

when providing for the duty to protect the environment for all:

“VII – protect the fauna and the flora” – excluding the

mention with prohibition in the manner prescribed by law “with

prohibition, in the manner prescribed by law, of all practices

which represent a risk to their ecological function, cause the

extinction of species or subject animals to cruelty.”

The Constitution has sufficient normative authority to

prohibit this practice alone. We thus find ourselves in a

situation of conflict between a local law and the Federal

Constitution.

JUDGE AYRES BRITTO – In this context, the absence of a law

cannot result in an authorization to torture a living being,

especially because there is only a difference in degree between

torturing a bird and a human. Therefore, we should be relentless

in prohibiting that type of practice.

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

JUDGE MARCO AURÉLIO – Mister President, I will be short. The

Judge-Rapporteur mentioned a court precedent regarding Santa

Catarina and more specifically the ‘Farra do Boi.’

If we were to follow the Constitution precept in matter of

constitutional review, we would conclude that it falls upon the

Legislature to prohibit [the practice].

I am of the opinion that the local law suffers a defect of

form, in regulating a field within the exclusive competence of the

federal government. The local law, instead of prohibiting,

legalizes the so-called “cockfighting competition.” The question

therefore emerges: is the constitutional provision, which imposes

a duty on the law to “ensure the bans,” self-enforcing? I would

refute Judge’s Dias Toffoli’s position. In this case, any enacted

law would have to conform to the Constitutional provision.

I affirm the defect of form, based on the field of the law

[ratione materiae, TR].

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

EXPLANATION

JUDGE GILMAR MENDES – Mister President, I would like to first

compliment the decision of Judge Celso de Mello, which exposed all

the case law and demonstrated the important meaning of this

decision and its implications in other fields of the law.

In a violent context, this type of practice can lead to a

lack of awareness or can even result in desensitization towards

violence.

I also reflected on Judge Dias Toffoli’s observation. As we

structure our decisions on the dialectic of fundamental rights, we

have to take into account the court precedents, especially those

Judge Marco Aurélio referred to regarding the Farra do Boi, where

the issue of culture and animal protection was posed.

It seems difficult to me to simply affirm, based on the

constitutional law and in absence of a federal law, that the state

Legislature could legalize this type of practice – meaning perhaps

that we should pursue our reflection and efforts and improve our

arguments.

JUDGE AYRES BRITTO – This practice.

JUDGE CEZAR PELUSO (PRESIDENT)- All the more that the birds

do not belong to a state.

JUDGE GILMAR MENDES – and it would create a risk similar to

that of the tax havens. Such practice would move to a State where

it would be legal, leading to a phenomenon of cruelty

optimization.

JUDGE AYRES BRITTO – The [state] law can only

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prohibit.

JUDGE GILMAR MENDES – Indeed, the [constitutional] text

accommodates some space for legislative action. But if the

Constitution is already so clear regarding the protection, would

that entail that the Government could not enact protective

measures?

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

RECTIFICATION OF THE DECISION

JUDGE DIAS TOFFOLI:

Considering the observation of His Honorable Judge Marco

Aurélio and the intervention by His Excellence Judge Gilmar

Mendes, I will join Judge Marco Aurélio’s decision, in declaring

the formal unconstitutionality of the law, given the existence of

the federal prohibition in effect.

JUDGE CELSO DE MELLO – (Rapporteur): art. 64 of the law

on Criminal Offenses was revoked by the Law nº9.605 of 02/12/1998,

which defines the criminal and administrative sanctions for

activities harmful to the environment, including cruelty towards

wildlife, domestic or domesticated animals, native and exotic,

based on art.32 of the Law on environmental crimes.

JUDGE DIAS TOFFOLI: (cancelled)

JUDGE CELSO DE MELLO: I shall observe that art. 32 of

the Law nº9.605/98 incriminates the disregard or offense of the

constitutional provision (FC art. 225, §1º, section VII). This law

was promulgated with purpose of

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protecting the fauna, prohibiting practices that not only

represent a risk to the ecological functions of the fauna or cause

the extinction of a species, but also subject “animals to

cruelty.”

It bears mentioning that animal cruelty is now

classified as an environmental crime, and no longer defines

regular offenses.

JUDGE GILMAR MENDES – Animal cruelty is no longer a

misdemeanor.

JUDGE CÁRMEN LÚCIA – This is now classified as a felony.

JUDGE CELSO DE MELLO – (Rapporteur): As provided by the

criminal section of the Law on Environmental Crimes enacted in Law

nº9.605/98.

JUDGE CEZAR PELUSO (PRESIDENT) – This does not affect the

reasoning of His Excellence.

JUDGE CÁRMEN LÚCIA – The reasoning stays the same.

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JUDGE DIAS TOFFOLI: (Cancelled)

JUDGE LUIZ FUX – We are debating the most difficult topic:

whether the unconstitutionality is formal or material.

JUDGE DIAS TOFFOLI:

There is a federal law. Because there exists a federal law, the

State has no authority regulating a field that the federal law

prohibits. Based on Judge Marco Aurélio’s decision determining a

formal unconstitutionality, I am in favor of allowing the action

to proceed.

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

DISCUSSION

JUDGE CELSO DE MELLO – (Rapporteur): The reference in art.

225, §1º, section VII of the Constitution to “the Government” is a

generic reference including all the political entities composing

the Brazilian Federal Government. This means that art. 225, §1º,

section VII of the Constitution is not only directed to the

Federal Union, but also to the member-states, the Federal District

and the Municipalities, as prohibitory clauses are fully

effective, directly and immediately enforceable.

In other words, the Brazilian Government has the duty to

prohibit animal cruelty, in any of the numerous legal authorities

within the Brazilian Government.

JUDGE LUIZ FUX – Mister President, we came to the point

of discussing if killing a bird, as regulated or not by the law,

is a formal or material unconstitutionality, but we all agree that

it should not be allowed to kill cocks, and that the law is

unconstitutional.

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JUDGE AYRES BRITTO – Judge Mendes, I recently reread your

book “Curso de Direito Constitucional” (Constitutional Law

Course), where you say - and I ask His Excellence to correct me if

I am wrong – that the term “Government” in various part of the

Constitution means “State.”

JUDGE GILMAR MENDES – Correct.

JUDGE AYRES BRITTO – The State legal personhood would thus

include the Union, the State, the Federal District and the

Municipalities.

JUDGE GILMAR MENDES – I meant to get to this point.

Consistently with the Rapporteur’s argument, the beginning of the

provision clearly established a duty of protection.

JUDGE RICARDO LEWANDOWSKI – Most certainly.

JUDGE GILMAR MENDES – Such a duty is incumbent on the

Government as a whole. Hence my question: Could the Public

Prosecutor’s Office act like it did in the case?

JUDGE CELSO DE MELLO – (Rapporteur): It should be

reminded at this point, that this duty to protect the fauna

falls upon the Government, as established by the Constitution,

but is legally enforced by the Public Prosecutor’s Office,

through the procedural mechanism of public direct action.

JUDGE GILMAR MENDES – Correct. Or the judiciary branch, in

absence of a specific legal area?

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

DECISION

JUDGE GILMAR MENDES – Mister President, reflecting on the

issue and committing to pursue this effort, I will also join

the Rapporteur, because he anchored his decision in the case

law of this Supreme Federal Tribunal, specifically regarding an

identical law regulating cockfighting, which was subsequently

declared unconstitutional, as well as another case – the Farra

do Boi -, which involved different connotations.

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

EXPLANATION

JUDGE CEZAR PELUSO (PRESIDENT) – I respectfully ask His

Excellence Judge Gilmar Mendes the permission to intervene […]. I

believe the law is not only prohibited under art.225; but it is

also prohibited in that it violates the dignity of human persons,

in encouraging primitive and irrational human impulses.

JUDGE AYRES BRITTO – By allowing torture.

JUDGE CEZAR PELUSO (PRESIDENT) – In other words, the

prohibition is also rooted is the prohibition of all practices

that promote, stimulate and incentivize actions and reactions

which diminish human beings, and thereby violates the

constitutional protection of human dignity at the foundation of

the Republic.

JUDGE RICARDO LEWANDOWSKI – Excellence, I meant to do a

similar intervention, insisting on the global movement steering in

this direction. Bullfighting is being banned in Barcelona. Europe

is also expressing a general concern over the inhumane treatment

of domestic animals in slaughterhouses and on farms. Why? Because

the fundamental principle of human dignity is at stake. When one

is cruel to an animal or treats them in a degrading way, this

person is violating the core of human dignity.

JUDGE CEZAR PELUSO (PRESIDENT) – Even more so when making it

a public show!

JUDGE RICARDO LEWANDOWSKI – Exactly. And this does not affect

just the participants of the so-called sport, but also those who

are indirectly affected by it, through the screams of the animals

and the

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Participants.

JUDGE AYRES BRITTO – One needs only to hear about it, I find

myself to be outraged just by hearing about it.

JUDGE RICARDO LEWANDOWSKI – Most certainly.

JUDGE CELSO DE MELLO – (Rapporteur): cock fights or dog

fights – the type does not matter to the offenders – are criminal

and degrading conducts. As such, they cannot be tolerated by any

public authorities, least of all by this Supreme Court, which

shall make the authority of the Constitution prevail, more

specifically regarding the prohibition on animal cruelty.

JUDGE RICARDO LEWANDOWSKI – Agreed.

JUDGE CEZAR PELUSO (PRESIDENT) – Absolutely. There are enough

sources of violence in the world. If we cannot resolve to contain

on of them, we won’t know where to stop.

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05/26/2011 PLENARY SESSION

DIRECT ACTION OF INCONSTITUTIONNALITY 1.856 RIO DE JANEIRO

DECISION

JUDGE CÁRMEN LÚCIA – Mister President, I wish to shortly

mention elements I deem to be important, and which are consistent

with Judge Gilmar Mendes’s statement.

The beginning of article 225 refers to something that I

believe is one step further of Brazilian constitutionalism, by

referring to the duties of society. In his decision, Judge Celso

de Mello points out that some people –not lawyers, the communities

– consider this practice to be a sport, a folkloric expression.

Beginning of art. 225 provides:

“All have the right to an ecologically balanced environment, which

is an asset of common use and essential to a healthy quality of

life and both the Government and the community shall have the duty

(…)”

In the context of constitutionalism, we have always referred

to the duties of the State as constituting a democratic society,

while leaving the democratic society aside.

I believe that §1º refers to the prohibition by the State in

the sense that the State shall intervene to ban such practices

when the communities themselves have failed in making folklore and

culture a beneficial product to life and dignity. This is how we

should interpret it, in my opinion: the duty primarily falls upon

society to prohibit or impose conducts that dignify society. The

society must be democratic to have an actual democratic state,

just like His Excellence mentioned earlier. In other words, there

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is so much violence, but the excess of this violence in each of us

must be contained.

I believe Judge Celso de Mello’s interpretation, which I join

fully, describes a social constitutionalism in the sense that the

duty falls upon the society. The Government must not act all the

time, by interfering in people’s home and life, but each of us, in

our home, must act by being decent.

****

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EXTRACT OF THE RECORD

DIRECT ACTION OF INCONSTITUTIONALITY 1.856

DEFENDANT: RIO DE JANEIRO

RAPPORTEUR: CELSO DE MELLO

CLAIMANT: THE PROSECUTOR GENERAL OF THE REPUBLIC

DEFENDANT: STATE GOVERNOR OF RIO DE JANEIRO

DEFENDANT: LEGISLATIVE ASSEMBLY OF THE STATE OF RIO DE JANEIRO

Decision: The Tribunal unanimously followed the Rapporteur in

denying preliminary defense. On the merits, the Tribunal

unanimously allowed the direct action to proceed and declared the

unconstitutionality of Rio de Janeiro State Law nº2.895, of March

20th of 1998. The President Cezar Peluso ruled. Judge Ellen Gracia

justified her absence. Plenary session, 05.26.2011.

Under the Presidence of Judge Cezar Peluso. Judges Celso de

Mello, Marco Aurélio, Gilmar Mendes, Ayres Britto, Joaquim

Barbosa, Ricardo Lewandowski, Cármen Lúcia, Dias Toffoli and Luiz

Fux were present.

Vice-Prosecutor General of the Republic, Dr. Deborah Macedo

Duprat de Britto Pereira.

Luiz Tomimatsu

Secretary