The right to defense is a fundamental human right, enshrined in the Constitution, and in practice plays a crucial role within the Brazilian legal system.

The theme of this article was chosen with the intention of conveying to lawyers and legal professionals, or at least attempting to convey, the immense importance that this right holds in the field of criminal justice. 

In this sense, we will discuss what the right to defense is, its legal basis, and its origins. We will also address the limits of the right to defense. And to that end, we will also discuss the role of the Public Defender's Office in this context, and its role in private practice. 

Therefore, we hope this article serves as a reference material, updating legal professionals, or even opening up a field of possibilities for lawyers to practice. Without further ado, let's get started?

The Right to Defense

Fundamental human rights have always been a matter of concern worldwide, leading legislators to seek to safeguard them both nationally and internationally, as evidenced by various documents and treaties signed by different countries, including those adopted by Brazil.

Furthermore, several countries have drafted their constitutions based on the Universal Declaration of Human Rights.

Therefore, in Brazil it would be no different; the 1988 Federal Constitution was also inspired to guarantee respect for fundamental human rights and guarantees.

Rights and guarantees extend to all individuals within Brazilian territory, including foreigners passing through the country, as well as legal entities. This is why observing them is so important.

The right to self-defense, as a fundamental right inherent to the human person, is enshrined in our 1988 Federal Constitution, in its article 5, item LV, as follows: 

"Litigants in judicial or administrative proceedings, and defendants in general, are guaranteed the right to due process and full defense, with the means and resources inherent to it."

Those who have a claim to substantive law to assert in the proceedings have a subjective right to invoke the principle of adversarial proceedings and the right to a full defense in their favor.

Thus, we can say that this right to defense is inherent to the litigating parties, as human beings, aiming to ensure a fair and balanced trial.

The right to a defense stems from the principle of adversarial proceedings and is fundamentally a manifestation of the Principle of the Democratic Rule of Law, closely linked to the principle of equality of the parties and the right to legal action.

When the constitutional text guaranteed litigants the right to due process and a full defense, it was understood that both the right to bring an action and the right to defend oneself are manifestations of the principle of due process.

Limits of the right to defense

The right to a defense is a fundamental aspect of criminal justice, and an essential guarantee to ensure that all persons accused of a crime have their constitutional rights upheld.

This right ensures the accused the right to be represented by a lawyer, to have access to the evidence against him, to question witnesses, and to present his own defense.

This is not intended to disrespect the principle of the Right to Defense, whose observance and scope are inseparable from the concept of a democratic State governed by the rule of law.

But in fact, no right can be considered absolute. Even the right to life can be legally suppressed in situations supported by law, such as a state of necessity and self-defense. 

No right can be exercised abusively. The right to a full defense, which includes the right to a fair hearing, is limited in Brazil, as in other countries. This is even true in criminal proceedings, where the importance of this right is even greater, in order to protect the freedom and property of citizens.

Exercising the right to a full defense does not exempt the defendant from complying with deadlines and other procedural requirements, nor does it allow them to appeal indefinitely or engage in delaying tactics that postpone the process. Furthermore, it does not authorize the production of illicit or useless evidence for clarifying the facts.

In this sense, it does not give him the prerogative to have all his requests accepted by the judge; illegal or immoral maneuvers are not permitted, such as the malicious preparation of witnesses with the intention of deceiving the justice system. 

Some abuses of the right to defense can be considered criminal, such as the coercion of witnesses or experts and fraud during the process to fabricate evidence.

It is necessary to find ways to allow for a full and ethical defense, but in a way that does not represent an insurmountable barrier to society's right to a process without undue delays.

The Role of the Public Defender's Office 

The Public Defender's Office is a public institution whose objective is to provide free legal assistance to people who do not have the financial means to pay for private legal services.

Its primary function is to guarantee access to justice and the protection of the fundamental rights of people who are in situations of economic, social, and legal vulnerability.

Furthermore, the Public Defender's Office also works to promote human rights, defend collective and diffuse interests, and provide free legal guidance to the general population.

The role of the Public Defender's Office is provided for by the Brazilian Federal Constitution and by Complementary Law No. 80/1994, which establishes the general rules for the organization and operation of the institution throughout the country.

Each Brazilian state has its own Public Defender's Office, responsible for providing free legal assistance to citizens within its jurisdiction.

The Public Defender's Office acts in all phases of the criminal process, from the investigation phase to the final judgment, ensuring that the accused have adequate legal representation, including the preparation of procedural documents, oral arguments, and attendance at hearings and trials.

Furthermore, the Public Defender's Office also works to defend the rights of prisoners, guaranteeing access to dignified conditions for serving sentences and access to healthcare, among other rights provided for by law.

Therefore, the Public Defender's Office is essential to guarantee the right to defense in criminal justice, ensuring that all people, regardless of their financial condition, have access to the legal assistance necessary to defend their rights.

Right to Defense in Private Practice

Lawyers working on criminal defense cases must have a strong understanding of constitutional principles, which guide the creation and application of rules governing social relations. Failure to observe these principles can lead to serious constitutional problems, resulting in procedural nullity and uncertainty.

In the practice of law, the right to defense is an essential element in ensuring the effective protection of clients' rights.

The lawyer's role is to defend the interests of their client, presenting technical and legal arguments to ensure adequate defense in all proceedings in which their client is involved.

Furthermore, the right to a defense is also important for guaranteeing justice and impartiality in trials. Without the right to a defense, it would not be possible to guarantee a fair and balanced trial, in which all parties involved have the opportunity to present their arguments.

Therefore, for lawyers, it is fundamental to master and understand the importance of the right to defense in their professional practice, in order to guarantee that clients' rights are respected in all legal proceedings in which they are involved.

References:

Saraiva, Wellington Cabral. Limits of the right to defense. Wellington Saraiva's Blog – Legal Topics.

Zorzan, Gilcinéia. On the constitutional principles inherent in the right to defense. Jus, 2014.

Fernandes, Ezequiel. The right to criminal defense: a right for all! Criminal Sciences Channel.