This is an independent guest post written by Suelen Tavares Gil, a Brazilian-qualified lawyer. Ms. Gil currently works as a volunteer lawyer at Cravinas, the human rights and sexual and reproductive rights clinic from the University of Brasília.
Brazil has a strong litigation culture, but effective justice is not yet accessible to everyone. Law clinics held by public universities, although with seemingly modest activities, have been showing themselves nationally relevant in specific areas, such as human rights, as they provide high-quality pieces of legal work.
Access to Justice in Brazil
The Brazilian Federal Constitution of 1988 deeply concerns access to justice. It contains specific rules on the Judiciary Bench, the Brazilian Bar Association, called “OAB”, the Public Ministry Office, and the Public Defender’s Office activities. The Public Defender’s Office’s core aim is to provide legal aid to those who need it.
Moreover, the Brazilian Constitution contains a fundamental right clause that expressly determines that all service of justice must be granted for free to those who, under any circumstances, cannot afford it.
A relevant percentage of legal claims runs under public funding: 29,7% in 2021, according to the most pertinent report in the area (in Portuguese).
In addition, the main challenges to accessing justice nowadays are the high number of people who need legal advice, whom Public Offices may need more investments to assist appropriately, and Brazil’s extensive territory, which the digitalisation of judicial services has partially overcome. Still, vulnerable individuals face technical issues and a lack of digital literacy barriers.
Pro Bono Activities Led by Lawyers
Any lawyer can do pro bono, as it is a voluntary activity. Although traditional, pro bono services are not regulated. Yet, lawyers must follow general legislation and ethical rules regarding professional standards. Fortunately, large law firms have been increasingly developing pro bono departments, which usually work with social projects or even launch supportive public contests for those initiatives.
Even the Brazilian Bar Association’s local offices usually provide institutional support for lawyers to do pro bono to the population. However, they are not supposed to catalogue these services, so official data is unavailable.
In other cases, there will be representation without remuneration, such as for imprisoned people, when there is no Public Defender’s Office in the town. That said, it is not legally considered pro bono.
Legal Clinics in Public Universities
In Brazil, legal clinics are common in most law faculties, both public and private. It usually occurs within the university buildings, where clients seek legal assistance. Those clients are generally from the local population and must prove that they have some degree of financial vulnerability.
These legal clinics aim to provide students with a guided practical experience and greater social awareness. For public-funded universities, it is a way of returning to the general population the investment indirectly made by themselves as taxpayers.
An experienced lawyer, usually a professor, must supervise students in legal clinics. So, these professionals indirectly do pro bono because a registered lawyer must sign most petitions addressed to a court in Brazil.
While non-undergraduate volunteers can participate in these legal clinics, they tend to be involved with the university in some capacity, such as master’s degree candidates or a volunteer researchers. Indeed, it is not just law students and legal professionals that can participate in these human rights clinics. After all, activities such as research and amicus curiae petitions often demand knowledge from different fields rather than Law. That said, legal clinics can even play a part in the law undergraduate curriculum. In such cases, the students will be evaluated by the quality of their legal practice through their legal writing, negotiation skills, and outcomes.
According to Article 207 of the Brazilian Federal Constitution, universities must ‘comply with the principle of inseparability of teaching, research, and extension activities’. Public universities are meant to extend academic barriers and interact with different spheres of society. In law faculties, this usually happens through institutional projects that can happen in collaboration with other institutions. Projects may involve teaching, research, and extension activities, aligning research with practice, and oftentimes each of its outcomes will influence one another.
Finally, these legal clinics generally hold no specific status. They are not charities or NGOs and can have different institutional accreditations from the university. Most often, these human right clinics are registered as ‘extension’ programs. Their funding depends primarily on public budget, but also relies on independent fundraising, such as running for prizes in national contests.
Nevertheless, as Brazilian legal research has improved in quality, legal clinics are proving themselves valuable tools for accessing justice, mainly human rights.
Strategic litigation is an important keyword when it comes to human rights work. Although this mechanism does not directly assist many individuals, it can pave the way towards justice for an entire group. Strategic litigation brings access to justice to the next level. It aims to benefit a group of a people or a social cause through in-depth research, high-quality legal services, legal strategy, and political articulation. It also concerns human rights, popular education, and the empowerment of communities.
The strategic litigation methodology is usually a concern for professors coordinating university law clinics. While Brazilian legal clinics have largely been inspired by American legal clinics in this, Brazilian legal clinics have, over time, also developed their own characteristics. In particular, the development of Brazilian legal research has certainly moulded the quality of legal practice in law schools. This text (pages 415-438, in Portuguese) provides a fuller picture of the subject.
Outstanding Practices in Access to Justice
Some Brazilian legal clinics from public universities have already intervened as third parties in core human rights cases brought to the Brazilian Supreme Court and the Interamerican Human Rights Court. Through this, they not only litigate, but even promote advocacy and education on human rights to the public.
If you want to get involved, here are some of the Brazilian legal clinics and their practices:
‘Access to the Interamerican Court of Human Rights’: In 2014, they produced a legal document called “The Cannabidiol case”, providing a panorama in the light of international Law to assist the Federal Public Ministry to start a legal claim against the Brazilian Federation seeking legal permission to 14 neurologic patients to import cannabidiol-based medicines in the State of Paraíba. A Federal Law forbids that practice, considering it as drug trafficking. The claim was successful. Nowadays, cannabidiol can be commercialized in the State of Paraíba.
Clinic of Human Rights and Environmental Law (Clínica DHDA): From the University of the State of Amazonas – UEA, this clinic has intervened as a third party (amicus curiae) in the case of Sales Pimenta v Brazil in the Interamerican Human Rights Court. They led a project along with Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic from Benjamin N. Cardozo School of Law to inform the public about the socio-environmental impacts of mining on indigenous peoples and riverside communities in the Amazon. The project used to run at the Federal University of Paraíba (UFPB) and currently runs at the Federal University of Pernambuco (UFPE).
Cravinas: The Sexual and Reproductive Rights Clinic from the University of Brasília (UnB), they have intervened as a third party in legal action concerning the telemedicine services to perform legal abortion; third party intervention in constitutional legal action concerning the unconstitutionality of abortion criminalization provisions in the Penal Code; third party intervention in Manuela v El Salvador Case (IACHR), also advocacy and education through social media and at schools. This project won a human rights prize from UnB in 2022.
Human Rights Clinic from the Federal University of Minas Gerais (UFMG): This clinic has intervened as third parties (amicus curiae) in legal actions in the Supreme Court regarding sexual and reproductive rights, mainly exceptions to the illegality of abortion according to the Brazilian Penal Code for the cases of women affected by Zika virus whose foetus have microcephalia, also the possibility of performing abortion until the 12th week of pregnancy. In 2021, they launched “International Binding Instrument on Business and Human Rights”, a technical document describing the human rights situation of communities affected by mining tailings dams in Minas Gerais.
Human Rights Clinic from the Federal University of Paraná (UFPR) and other projects have drafted a technical document regarding a Federal Law Project about sexual and reproductive rights and family planning. Also, was produced a documentary about legal abortion in Brazil.
Human Rights Clinic Luiz Gama (Clínica de Direitos Humanos Luiz Gama): the legal clinic from the law school of the University of São Paulo (USP), one of the most traditional in the country, focuses on homelessness and has developed projects in advocacy and education in human rights and won two national prizes for human rights practices. Also, they have intervened as amicus curiae, along with other projects, in a constitutional legal action in the Supreme Court seeking to fix unconstitutional affairs regarding the Brazilian penitentiary system.
Disclaimer: The views and opinions expressed are those of the author. They are for informational purposes only and do not reflect the official policy or position of UCL SPBC, the UCL Faculty of Laws, or UCL as an institution.