Venice Commission - Observatory on emergency situations

Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).

Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN

Brazil

16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)

For the outline of the case-law of the Federal Supreme Court on COVID-related legislation and measures, see (in English) here.

18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.

On 14 Mary 2020 the Federal Supreme Court decided that the established deadlines for the municipal elections that will take place on October this year shall remain in force, despite the state of pandemic caused by COVID-19, under penalty of violation of the democratic principle and popular sovereignty. According to the Court, in view of the exceptional measures to face the pandemic, the idea of extending electoral deadlines, with the postponement sought, can be tempting. Nevertheless, the constitutional history recommends that, especially in crisis situations, the preservation of the established procedures for the expression of the popular will and of the institutions that shape democracy should be sought to the maximum. Despite their fallibility, they may be one of the few safeguards of normality. The Court pointed out that, according to a report released by the Superior Electoral Court to monitor the impacts of the COVID-19 pandemic, with a view to the 2020 municipal elections, in light of the current electoral calendar; the Electoral Court has, so far, material conditions to implement elections this year. The Federal Supreme Court concluded that the risk of weakening the democratic system and the rule of law itself related to the disruption of the electoral deadlines, as a result of the acceptance of the provisional claim, appears to be a more serious risk than the damage claimed due to the maintenance of deadlines in the current circumstances. When dealing with controversial issues, one should not forget the inherent importance of the democratic process and the sacred value of suffrage.