Due Process in the Brazilian Presidentia

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331 
ESSAYS 
 
DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL 
IMPEACHMENT 
 
Ricardo Perlingeiro* 
 
I. INTRODUCTION ........................................................................... 332 
 
II. APPLICABILITY OF DUE PROCESS OF LAW IN IMPEACHMENT ...... 332 
 A. Due Process in Latin America ............................................. 332 
 B. Due Process in the Brazilian Impeachment ......................... 333 
 C. Can the Senate Exercise Quasi-Judicial Powers? ............... 333 
 D. Independent and Impartial Hearing as a Fundamental 
 Human Right ........................................................................ 334 
 E. Correlation Between Judicial Deference and 
 Quasi-Judicial Nature of the 
 Administrative Adjudication ................................................ 335 
 F. Judicial Deference Toward the Senate’s 
 Impeachment Decision ......................................................... 336 
 G. Immunity Incompatible with American Convention on 
 Human Rights ....................................................................... 337 
 H. Case of Paksas v. Lithuania: European Court of 
 Human Rights and the U.N. Human Rights Committee ....... 338 
 I. Right to a Fair Trial in Administrative Disputes: A 
 Comparison of the European and Inter-American 
 Courts of Human Rights ....................................................... 338 
 J. Judicial Review of Impeachment as an 
 Extreme Measure ................................................................. 339 
 K. Exceptions to Exceptional Judicial 
 Review of Impeachment ....................................................... 340 
 
III. GUARANTEES OF DUE PROCESS IN IMPEACHMENT ...................... 341 
 A. Right to Independent Adjudicators ...................................... 341 
 B. Right to Adjudicators with Proper Legal Training .............. 341 
 C. Right to Impartial Adjudicators ........................................... 342 
 
 
 * Ricardo Perlingeiro, ricardoperlingeiro@id.uff.br. Full Professor of the Faculty of Law 
of Fluminense Federal University (Niterói, Rio de Janeiro), and Federal Appellate Judge 
(Desembargador Federal) of the Federal Regional Court of the 2nd Region (Rio de Janeiro). 
332 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
 D. Right to Complete Adjudication of Issues of 
 Fact and Law ....................................................................... 343 
 E. Right to a Second Chance .................................................... 343 
 
IV. CONCLUSION ............................................................................... 344 
I. INTRODUCTION 
This Essay discusses the applicability of the U.S. notion of procedural 
due process of law to the presidential impeachment process under 
Brazilian constitutional law. It takes a critical approach based on the 
Inter-American system of human rights protection and includes a 
comparison with the European human rights model. 
The analysis is illustrated by means of the Brazilian Federal Senate’s 
impeachment of Dilma Rousseff on August 31, 2016. Rousseff was 
impeached on charges of having “opened additional lines of credit by 
presidential decrees, without the authorization of the National Congress,” 
and “(illegally) entering into loan transactions.” As a result, the ex-
President Rousseff was removed from office, but not barred from holding 
other public offices.1 
The first half of this Essay deals with the grounds for the applicability 
of procedural due process to impeachment in general, and argues that the 
degree of deference that the Judiciary must show to the resulting decision 
depends on the Senate’s respect for due process in its adjudicatory role. 
The second half of the text enumerates certain procedural guarantees that 
are necessary for impeachment in a constitutional system in order to 
prohibit judicial review of such decisions. 
II. APPLICABILITY OF DUE PROCESS OF LAW IN IMPEACHMENT 
A. Due Process in Latin America 
From an historical perspective, it should be noted that the “due 
process of law” discussed in the first half of this Essay originated in the 
common-law systems of England2 and the United States of America 
(Fifth Amendment and Fourteenth Amendment of the U.S. 
 
 1. Federal Senate, Denúncia n̊ 1/2016 (Sept. 6, 2016), https://www25.senado.leg.br/web/ 
atividade/materias/-/materia/125567. 
 2. The Magna Carta of 1215, the Liberty of Subject Act (28 Edward 3) of 1354, and the 
Observance of Due Process of Law Act (42 Edward 3) of 1368 are examples of laws that 
originated in the English common law systems. 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 333 
 
Constitution).3 It should also be noted that, under the influence of U.S. 
constitutional law,4 the concept of due process of law has been formally 
incorporated into the constitutions of numerous Latin-American 
countries. Thus, due process of law is as an indispensable component of 
all adjudicative decisions by public administrative authorities involving 
a potential restriction of civil liberties.5 
B. Due Process in the Brazilian Impeachment 
Under Brazilian law, the permanent removal of the President of the 
Republic on the grounds of a so-called “crime de responsabilidade”6 
involves the loss of an individual right (removal from office and 
disqualification from holding other such public offices). Therefore, the 
impeachment must be preceded by a fair hearing according to subsections 
XXXV, LIV and LV of Article 5 of the 1988 Brazilian Constitution. 
Incidentally, this was a point of agreement between the prosecution and 
the defense in the impeachment of President Dilma Rousseff7 and has 
been pointed out in the precedents of the Federal Supreme Court.8 
C. Can the Senate Exercise Quasi-Judicial Powers? 
In fact, the controversial procedural issues in the impeachment 
concern the degree to which due process is required in adjudicative 
proceedings before the Federal Senate and the conditions under which 
failure to guarantee due process in such proceedings may give rise to 
judicial review. 
In other words, the following questions must be answered: are the 
Senate’s adjudicatory functions subject to the guarantees of due process 
typically required in trials? Is the Senate’s impeachment decision subject 
to judicial review? 
 
 3. Ricardo Perlingeiro, A Historical Perspective on Administrative Jurisdiction in Latin 
America: Continental European Tradition vs. U.S. Influence, BRIT. J. AM. LEGAL STUD., 241, 241-
89 (May 6, 2016), http://bit.ly/2cdhvK0. 
 4. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 275 (1856); 
Goldberg v. Kelly, 397 U.S. 254, 269 (1970). 
 5. Perlingeiro supra note 3, at 241-89. 
 6. The “crime de responsabilidade” mentioned in C.F. art. 85 (Braz.) is defined by Law 
nº 1.079 of April 1950 as “any act committed by the President of the Republic that violates the 
C.F.” 
 7. Federal Senate (2016). Denúncia nº 1/2016. (Sept. 6, 2016) https://www25.senado.leg. 
br/web/atividade/materias/-/materia/125567. 
 8. Federal Supreme Court of Brazil, ADPF 378 (Judgment of Dec. 8, 2015). 
334 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
D. Independent and Impartial Hearing as a Fundamental Human Right 
Judging by the case law of the Inter-American Court of Human Rights 
(I/A Court H.R.), it could be said that all individuals have a fundamental 
human right to a fair hearing, but notnecessarily in an ordinary court of 
law.9 
Although the Judiciary is traditionally conceived as the branch of 
government assigned to the function of adjudication,10 it is compatible 
with the American Convention on Human Rights (ACHR) to permit the 
Legislative or Executive branch to exercise that function. Either branch 
must do so through a competent, independent, impartial body whose 
jurisdiction is pre-established by law and provides the other guarantees 
of complete due process.11 
A similar precedent has been established by the U.S. Supreme Court 
in the case of Crowell v. Benson: “a State may distribute its powers [of 
administrative dispute resolution] as it sees fit, provided only that it acts 
consistently with the essential demands of due process and does not 
transgress restrictions of the Federal Constitution applicable to state 
authority.”12 
In fact, in the model of administrative justice of Brazil and other Latin 
American countries, it is the Judiciary that is mainly responsible for 
review of decisions by the administrative authorities.13 In other models, 
the responsibility for such review is assigned to non-judicial authorities, 
as in Uruguay and Mexico,14 or is shared between the Executive and the 
Judiciary, as in Honduras during the effective period of its 1965 
Constitution.15 
All such Latin American models honor the principle of the Rule of 
Law by guaranteeing the adjudication of administrative disputes in 
compliance with Article 8 (“Right to a Fair Trial”) and Article 25 
(“Effective Judicial Protection”) of the ACHR. 
 
 
 
 
 9. Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. 
H.R. (ser. C) No. 55, ¶ 71 (Jan. 31, 2001). 
 10. The author uses the term “administrative adjudication” as synonymous with the French 
“jurisdiction administrative”, the German Verwaltungsgerichtsbarkeit, the Italian giurisdizione 
amministrativa, and the Spanish jurisdicción administrative. 
 11. Vélez Loor v. Panama, Preliminary Objections, Merits, Reparations, and Costs, 
Judgment, Inter-Am. Ct. H.R. (ser. C) No. XX, ¶ 108 (Nov. 23, 2010). 
 12. Crowell v. Benson, 285 U.S. 22, 57 (1932). 
 13. Perlingeiro, supra note 3, at 261-68. 
 14. Id. at 258-61. 
 15. Id. at 257-58. 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 335 
 
E. Correlation Between Judicial Deference and Quasi-Judicial Nature 
of the Administrative Adjudication 
While certain duties of administrative authorities are purely executive, 
such agencies also perform a number of adjudicative activities, which 
may in turn be subdivided into “quasi-judicial” (trial-like) adjudication 
of administrative disputes, on the one hand, and routine adjudicative 
activities, on the other. 
The level of deference shown by the Judiciary to adjudicative 
administrative decisions (to be established by the Constitution) should be 
directly proportional to the extent to which such decisions result from 
trial-like proceedings. The more judicial deference is required for 
administrative decisions, the greater the need for administrative 
proceedings to provide the guarantees typical of trials in a court of law. 
In Brazil, for example, administrative agencies lack the necessary 
degree of independence to guarantee due process. As a result, in the 
Brazilian model of administrative dispute resolution, the decisions of 
such agencies are subject to judicial review with respect to both questions 
of law and findings of fact, in accordance with Article 5 XXXV of the 
Brazilian Constitution on effective judicial protection. 
A similar perspective may be found in the case law of the European 
Court of Human Rights (ECtHR): 
Likewise, the fact that the duty of adjudicating is conferred on 
professional disciplinary bodies does not in itself infringe the 
Convention. Nonetheless, in such circumstances the Convention 
calls for at least one of the following two systems: either the 
professional disciplinary bodies themselves comply with the 
requirements of that Article, or they do not so comply but are 
subject to subsequent review by “a judicial body that has full 
jurisdiction” and does provide the guarantees of Article 6 § 1 (Case 
of Albert and Le Compte v. Belgium, § 29; Case of Gautrin and 
Others v. France, § 57). 
 
Accordingly, the Court has consistently reiterated that under 
Article 6 § 1 it is necessary that the decisions of administrative 
authorities which do not themselves satisfy the requirements of 
that Article should be subject to subsequent [review] by a judicial 
body that has full jurisdiction´ (Case of Ortenberg v. Austria, § 
31).16 
 
 
 16. Guide on Article 6 of the European Convention of Human Rights, Eur. Ct. H.R. at 21 
(2013). 
336 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
In this context, the I/A Court H.R. argues that, when exercising purely 
executive duties, an administrative authority must comply with Articles 
8 and 25 of the ACHR only to the extent necessary to ensure that his 
decision is not arbitrary without being required to provide the guarantees 
typical of judicial bodies.17 This is because otherwise, the adjudicative 
activities of the Judiciary and those of the administrative authorities 
would have identical characteristics and therefore be redundant.18 
F. Judicial Deference Toward the Senate’s Impeachment Decision 
The Latin American system of administrative dispute resolution 
provides a further illustration of the principle that decisions made by 
administrative authorities incapable of guaranteeing due process should 
be subject to full judicial review, a notion rooted in Continental European 
legal traditions. 
At the same time, however, the national constitutions of various Latin 
American countries have imposed the requirements of procedural due 
process typical of common-law countries. Under the common law 
tradition, citizens have the right to a fair hearing not only in court but also 
in extrajudicial (administrative) adjudicative proceedings. 
The implementation of the due process requirement is problematic in 
Latin American countries precisely because the non-judicial authorities 
lack the independence necessary to provide such guarantees. 
Consequently, the Judiciary is the only independent and impartial 
authority available to citizens who wish to challenge administrative 
decisions.19 
On the other hand, common-law countries take a quite different point 
of view, where courts tend to show deference to administrative 
adjudication decisions. Examples include decisions made by 
administrative judges in the United States, as well as in administrative 
tribunals in England and Australia.20 
It is therefore worth mentioning that the procedural model intended 
by the Brazilian Constitution for the impeachment of the President of the 
Republic pertains to a model of administrative dispute resolution that is 
uncommon in Brazilian administrative law. 
In fact, Article 52 (1) of the Brazilian Constitution establishes judicial 
immunity for crimes de responsabilidade, that is to say that it is a model 
of dispute resolution in which the Judiciary does not encroach upon the 
 
 17. Claude-Reyes v. Chile, Inter-Am. Comm’n H.R., ¶ 118, 119 (Sept. 9, 2006). 
 18. Michael Asimow, Five Models of Administrative Adjudication 7 (Stan. Pub. L., 
Working Paper No. 2502210, 2014). 
 19. Perlingeiro, supra note 3, at 244, 248. 
 20. On the various models of administrative adjudication, see Asimow,supra note 18, at 
1, 48; PETER CANE, CONTROLLING ADMINISTRATIVE POWER: AN HISTORICAL COMPARISON (2016). 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 337 
 
competence of the Federal Senate to try impeachment. 
That principle has been expressed in a Brazilian Supreme Court 
ruling: “it is inappropriate for the Judiciary to interfere with the 
discretionary power of the Federal Senate regarding the timeliness or 
suitability [of impeachment] nor to examine the merits of judgement 
[. . .],”21 just as, in the case of Nixon v. United States, the U.S. Supreme 
Court said “the Impeachment Trial Clause is nonjusticiable.”22 
G. Immunity Incompatible with American Convention on Human Rights 
Since the Constitution does not permit the Judiciary to review the 
impeachment decision delivered by the Senate, there are only two 
possible alternatives: either there is due process in the impeachment 
proceeding that is equivalent to the guarantees of a fair trial or else there 
is a gap in the Brazilian constitutional system, with an adjudicative 
system that lies within the sole competence of a Senate protected by a 
sphere of immunity and exempted from the fair trial clause of Article 5 
XXXV of the Constitution. 
Such a gap in Brazilian constitutional law is unjustifiable under the 
ACHR. 
According to the Inter-American Commission on Human Rights 
(IACHR), 
The figure of impeachment is provided for in the laws and 
regulations of several countries in the region, where Congresses, 
Parliaments and Assemblies have competence to apply it. Without 
prejudice to such competences, the Inter-American Human Rights 
System has considered that any punitive procedure must meet 
minimal due process guarantees, particularly in the event that these 
proceedings may affect a person's human rights.23 
In that respect, the U.S. Supreme Court ruled in the case of Powell v. 
McCormack that the principle of separation of powers does not always 
preclude judicial review of political questions and that judicial 
interference may be necessary in cases involving interpretation of the 
Constitution.24 
 
 
 21. Federal Supreme Court of Brazil, ADPF 378 (Judgment of Dec. 8, 2015). See also 
Federal Supreme Court of Brazil, Medida Cautelar/Mandado de Segurança 34.193/DF (Judgment 
of May 11, 2016). 
 22. Nixon v. United States, 506 U.S. 224, 226 (1993). 
 23. Press Release, Inter-American Commission on Human Rights, IACHR Expresses 
Concern over Impeachment of President of Brazil (2016), (on file with author) [hereinafter 
IACHR Expresses Concern]. 
 24. Powell v. McCormack, 395 U.S. 486, 521 (1969). 
338 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
Thus, it is not “political” questions of law that are immune to review 
(non-justiciable) but rather certain questions of fact which, because of 
their highly technical nature, might be outside the expertise of the judges 
and therefore be barred from judicial review or from a certain form of 
adjudication.25 
In fact, the term “political judgement” should not be taken literally in 
an impeachment: the category of governmental acts/actes du 
gouvernement (rejected by Otto Mayer, in his late 19th Century work),26 
as an area of unjusticiable immunity, would be intolerable in the current 
configuration of the principle of the Rule of Law.27 
H. Case of Paksas v. Lithuania: European Court of Human Rights and 
the U.N. Human Rights Committee 
The ECtHR case of Paksas v. Lithuania, which excluded Article 6 of 
the European Convention for the Protection of Human Rights (ECHR) in 
the impeachment of the President of Lithuania,28 should not be 
considered a paradigm for the Inter-American system for the protection 
of human rights. 
Similarly, the Inter-American system should not be influenced by the 
U.N. Human Rights Committee Communication which excluded the 
applicability of Article 14 of the International Covenant on Civil and 
Political Rights (ICCPR) from the same Lithuanian impeachment.29 The 
Committee commented that “there is no determination of rights and 
obligations in a suit at law where the persons concerned are confronted 
with measures taken against them in their capacity as persons 
subordinated to a high degree of administrative or parliamentary control, 
such as the impeachment procedure.”30 
I. Right to a Fair Trial in Administrative Disputes: A Comparison of the 
European and Inter-American Courts of Human Rights 
The inapplicability of the case of Paksas v. Lithuania under Brazilian 
constitutional law may be explained by a historical discrepancy between 
the Inter-American and European systems for the protection of human 
 
 25. Ricardo Perlingeiro, Due Process Prior to Administrative Decisions and Effective 
Judicial Protection in Brazil: A New Perspective?, 10 VIENNA J.I.C.L. 30, 46 (2016). 
 26. OTTO MAYER, DEUTSCHES VERWALTUNGSRECHT 4 (Duncker & Humblot) (1895). 
 27. Ricardo Perlingeiro, Contemporary Challenges in Latin American Administrative 
Justice, 3 BRICS L.J. 21, 28-29 (2016) [Perlingeiro, Contemporary Challenges]. 
 28. Paksas v. Lithuania, Eur. Ct. H.R. 1, 19 (2011), http:// hudoc.echr.coe.int/eng?i=001-
102617. 
 29. U.N. Hum. Rts., Comm. on Rolandas Paksas v. Lithuania, U.N. Doc. 
CCPR/C/110/D/2155/2012 (2014), at 14-16. 
 30. Id.; see also ¶¶ 7.6, 7.8, 7.9, & 8.4. 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 339 
 
rights in terms of judicial review of administrative decisions. First of all, 
a strict literal interpretation of Articles 8.1 and 25 of the ACHR (unlike 
articles 6 and 13 of the ECHR and Article 14.1 of the ICCPR) can include 
questions of administrative law.31 
Secondly, because the right to a fair trial is now considered to be an 
indispensable element of the Rule of Law, any proceeding that did not 
require due process in a preliminary administrative proceeding under 
Article 6 of the ECHR and Article 14 of the ICCPR would have to be 
subject to full judicial review after the fact. 32 
Thirdly, the definitional elements under criminal law that characterize 
the “crime de responsabilidade” as a prerequisite for an impeachment 
under Article 86 of the Brazilian Constitution, and the penalties of 
removal and disqualification from public office, affect the defendant’s 
private sphere.33 
J. Judicial Review of Impeachment as an Extreme Measure 
Thus, from the standpoint of the Inter-American system for the 
protection of human rights, judicial review of the Federal Senate’s 
impeachment decision should be permitted, on an exceptional basis, to 
the extent necessary to make up for the lack (in impeachment 
proceedings) of the due process guarantees typical of trials. 
Concerning the case of Dilma Rousseff, the IACHR stated as follows: 
“In light of these concerns over compliance with due process guarantees, 
the IACHR considers especially important the monitoring and 
supervision functions that the competent authorities of the Judiciary in 
Brazil implement on this case”.34 
The same conclusion may be drawn from the U.S. Constitution: 
An action of the Senate in impeachment, if amounting to a 
fundamental failure of process, can be attacked in court, as can any 
grievous denial of due process of law. The Fifth Amendment’s 
guarantee of due process of law is a categorical imperative, good 
for the benefit of any person against any action by any part of 
government.35 
 
 31. Constitutional Court v. Peru Inter-Am. Ct. H.R. (ser. C) No. 71, ¶ 69-71 (Jan. 31,2001). 
 32. Eur. Ct. H.R., Guide on Article 6 of the Convention, ¶¶ 81-82 (2013). 
 33. Otherwise, would the impeachment proceeding not be a remnant of “special relations 
of power”? For more about “special relations of power,” see E. FORSTHOFF, ALLGEMEINES 
VERWALTUNGSRECHT 127 (1973); H. MAURER, ALLGEMEINES VERWALTUNGSRECHT 135-39, 189-
93 (2011). 
 34. IACHR Expresses Concern, supra note 23. 
 35. Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 
YALE L.J. 53, 91 (1999). See also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: 
340 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
In the case of Nixon v. United States, Justice Souter quoted Justices 
White and Baker in qualifying his own opinion: 
One can, nevertheless, envision different and unusual 
circumstances that might justify a more searching review of 
impeachment proceedings. If the Senate were to act in a manner 
seriously threatening the integrity of its results, convicting, say, 
upon a coin toss, or upon a summary determination that an officer 
of the United States was simply “a bad guy,” ante, at 239 (White, 
J., concurring in judgment), judicial interference might well be 
appropriate. In such circumstances, the Senate's action might be so 
far beyond the scope of its constitutional authority, and the 
consequent impact on the Republic so great, as to merit a judicial 
response despite the prudential concerns that would ordinarily 
counsel silence. “The political question doctrine, a tool for 
maintenance of governmental order, will not be so applied as to 
promote only disorder” Baker, supra, at 215.36 
Similarly, in one of Dilma Rousseff’s legal actions against the Senate, 
Federal Supreme Court Justice Teori Zavascki affirmed that “[judicial] 
interference should be allowed only in extreme cases, in which there is 
demonstrably a particularly serious legal “pathology” in the 
impeachment proceeding.”37 
K. Exceptions to Exceptional Judicial Review of Impeachment 
Nevertheless, there are two noteworthy exceptions to the exceptional 
judicial review of impeachment. First, Articles 8 and 25 of the ACHR are 
applicable only to protection of an individual right. They cannot be used 
for abstract review of the legality of a public authority’s decisions or to 
ensure the effectiveness of a State’s basic principles, such as democracy, 
unless an individual interest is specifically at risk. 
This means, for example, that the controversial part of Dilma 
Rousseff’s impeachment decision, her partial acquittal allowing her to 
hold other public offices despite her impeachment, could be appealed 
only within the narrow confines of a constitutional court proceeding.38 
 
A CONSTITUTIONAL AND HISTORICAL ANALYSIS 124-25 (1996). 
 36. Nixon v. United States, 506 U.S. 224, 253-54 (1993). 
 37. Federal Supreme Court of Brazil, Medida Cautelar/Mandado de Segurança 34.371 DF 
(Judgment of Sept. 8, 2016). 
 38. From another point of view, the European Court of Human Rights (ECHR) found the 
penalty of disqualification from elected office (following impeachment) to be a disproportionate 
restriction on the right to free elections unless it is based on the risk that the convicted person may 
undermine the democratic order of a State in a certain historical and political period, especially if 
no such penalty was provided by law at the time of impeachment. European Court of Human 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 341 
 
This is because other authorities interested in judicial review of the 
Senate’s partial acquittal of the ex-President could not invoke ACHR 
articles 8 and 25.39 
The other exception concerns the exercise of individual rights, which 
must be brought into balance with the prevailing public interest. In other 
words, even in cases in which an individual right is found to be worthy 
of legal protection, the private claimant must sacrifice that right in 
exchange for financial compensation if its exercise would be harmful to 
the greater public interest.40 For instance, the reversal of an impeachment 
decision might prove harmful to the public interest after a certain amount 
of time if it would create a serious risk of destabilizing the government 
program now in progress. 
III. GUARANTEES OF DUE PROCESS IN IMPEACHMENT 
This brings us to the second half of this Essay, which enumerates 
certain procedural guarantees that should be included in an impeachment 
proceeding. Such guarantees include the right to trial by an independent, 
qualified and impartial adjudicator, the right to a reasoned opinion, and 
the right to appeal an unfavorable decision. 
A. Right to Independent Adjudicators 
Brazilian members of parliament have the necessary constitutional 
prerogatives to act independently which helps to ensure impartiality.41 It 
is therefore possible, in principle, for the Federal Senate to perform 
adjudicative activities restrained by the guarantees of due process typical 
of trials in court. In doing so any distortions in the impeachment could be 
remedied by the Parliament itself, with no need for judicial interference. 
That is not exactly the way it works, however. 
B. Right to Adjudicators with Proper Legal Training 
According to Article 14, § 3 of the Brazilian Constitution, no legal 
training is needed in order to be eligible for the Federal Senate.42 This 
raises the question of whether an administrative dispute decided by 
 
Rights, Case of Paksas v. Lituânia [GC] (Judgment of Jan. 6, 2011). 
 39. Regarding the inadmissibility of a citizen asserting third-party claims based on social 
interests in general and the institutional prerogatives of the Legislative Houses, see Federal 
Supreme Court 2016 of Brazil, “Ministra decide em mandados de segurança contra divisão de 
sanções no impeachment.” Notícias STF 2016. 
 40. Perlingeiro, Contemporary Challenges, supra note 27, at 33. 
 41. CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 57 (Braz.). 
 42. Id. at 13, 25. 
342 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
anyone other than a professional judge could be considered a fair trial, 
which would be quite uncommon in the world of administrative law? 
This begs the question of whether the due process clause is compatible 
with a trial like that of Dilma Rousseff, where lay judges tried a case 
concerning facts which, despite the label of crime de responsabilidade, 
involved legal controversies demanding detailed analysis of financial and 
administrative law. 
In such situations, it is essential for the members of parliament acting 
as judges to have the necessary specialized expertise for effective 
adjudication of a legal dispute. Such expertise must be demonstrated in 
order to lend credibility to the forthcoming decision and to avoid giving 
the public the impression that freedom of conscience has fallen prey to 
advisors and consultants, who lack the prerogatives to act independently. 
Ideally, the majority of the senators who participate in the decision 
should be required to have legal training,43 even if some members of 
parliament without legal training are allowed to act as judges in an 
adjudication involving administrative or financial law. Ideally, the 
majority of the senators who participate in the decision should be required 
to have level training.44 
C. Right to Impartial Adjudicators 
The Brazilian Federal Supreme Court has made the following 
comments on impartiality in impeachment proceedings: 
[A]n impartial judge must be subject to nothing but the law. That 
logic cannot be carried over to political-legal proceedings,however, since the adjudicators, besides being subject to the law, 
also serve outside interests, including the interests of their 
constituency. This means that political task of decision-making in 
an impeachment proceeding originates, in the final analysis, from 
the representative duties of members of parliament, which does not 
apply to judges. [. . .] Unlike the judicial sphere, impartiality is not 
a defining characteristic of Parliament. [. . .] The Constitution 
claimed that a parliamentary adjudicator would be subject to both 
the law and political interests, and it would constitute a violation 
of the democratic principle if they did not keep both factors in 
mind.45 
From the perspective of ACHR Article 8, on the other hand, which is 
 
 43. See RICARDO PERLINGEIRO ET AL., EURO-AMERICAN MODEL CODE OF ADMINISTRATIVE 
JURISDICTION (2014). 
 44. Id. 
 45. Federal Supreme Court of Brazil, ADPF 378 (Judgment of Dec. 8, 2015). 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 343 
 
fully applicable to any administrative proceeding resulting in a decision 
that is not justiciable, there can be no doubts that, in their role as judges, 
the members of parliament must have an impartial attitude to the trial.46 
Furthermore, as a logical corollary, the defendant must be allowed to 
challenge and test the impartiality of each of the adjudicators.47 
D. Right to Complete Adjudication of Issues of Fact and Law 
On the subject of the intensity of judicial review of the Senate’s 
decision, according to the Federal Supreme Court, impeachment is 
mainly a political process.48 Thus, the Judiciary should neither interfere 
with the Senate’s discretionary power in evaluating the opportuneness or 
appropriateness of the ascertainment of liability nor examine the merits 
of the case.49 
The thesis that impeachment is a political proceeding and therefore 
injusticiable would be compatible with the ACHR only if the Senate 
observed due process of law by providing guarantees typical of judicial 
proceedings.50 This means that, in a case of prosecution for impeachment, 
the Senate’s discretionary power to ascertain the facts and evaluate their 
legal significance must be exercised through a reasoned decision that 
responds to all of the relevant arguments formulated by the defense.51 
E. Right to a Second Chance 
Finally, the right to appeal against an unfavorable decision is a 
fundamental human right supported by international treaties, as per 
Article 14.5 of the ICCPR, and is established by ACHR Article 8.2(h). 
Although originally applicable only to criminal offenses, the right of 
appeal has now also become a prerequisite for the enforceability of a 
conviction for an administrative offense.52 
 
 
 46. Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. 
H.R. (ser. C), ¶ 84 (Jan. 31, 2001). 
 47. Id. 
 48. Federal Supreme Court of Brazil, ADPF 378 (Judgment of Dec. 8, 2015); Federal 
Supreme Court of Brazil, Medida Cautelar/Mandado de Segurança 34.371 /DF (Judgment of Sept. 
8, 2016). 
 49. Federal Supreme Court of Brazil, ADPF 378 (Judgment of Dec. 8, 2015); Federal 
Supreme Court of Brazil, Medida Cautelar/Mandado de Segurança 34.371/DF (Judgment of Sept. 
8, 2016). 
 50. Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. 
H.R. (ser. C), ¶ 77 (Jan. 31, 2001). 
 51. Case of Barbani Duarte v. Uruguay, Merits, Reparations, and Costs, Judgment, Inter-
Am. Ct. H.R. (ser.), ¶ 204 (Oct. 13, 2011). 
 52. See S. GARCIA RAMÍREZ, EL DEBIDO PROCESO: CRITERIOS DE LA JURISPRUDENCIA 
INTERAMERICANA 45-46 (2014), http://bit.ly/2cBYtvU (last accessed Sept. 8, 2016). 
344 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
IV. CONCLUSION 
According to the Brazilian Constitution, the Federal Senate alone is 
competent to impeach the President on the grounds of a “crime de 
responsabilidade” and since such prosecution is equivalent to judicial 
proceedings under administrative law, they should be conducted 
according to the principles of administrative justice, which require 
guarantees of due process typical of trials in court. 
The fundamental question is to determine whether the institutional 
structures of the Federal Senate are capable of guaranteeing due 
process—to the full extent—as a condition sine qua non for the Senate to 
have the last word in an impeachment proceeding regarding questions of 
law (de jure) and findings of fact (de facto). If such guarantees were 
available to the defendant, then he would have no option but to accept the 
Federal Senate’s final decision against him. However, because the Senate 
is not structured in such a way as to be able to guarantee due process 
within the meaning of the ACHR, the impeachment proceeding should be 
considered equivalent, in reality, to an extrajudicial disciplinary 
proceeding. Such a proceeding is subject to full judicial review. 
In light of the foregoing, under such unfavorable conditions, the 
defendant’s refusal to accept the decision should give rise to judicial 
review not only of the procedural issues but also—and most 
importantly—of substantive and legal errors. The judicial review should 
come with the proviso that if the President’s exercise of the right to 
remain in office would be contrary to the predominant public interest, his 
sole remedy would be to demand financial compensation for the sacrifice 
of such rights. In fact, in this context, Brazilian national law should be 
supplemented to permit judicial review to comply with the case law of 
I/A Court H.R. regarding the right to a fair trial as a fundamental human 
right. 
In conclusion, based on the true legal implications of this Essay is it 
is necessary to rethink the current model of impeachment under 
constitutional law and not just in Brazil. There are several shortcomings 
in the impeachment process including procedural obstacles, the lack of 
impartiality, and legal qualifications of the adjudicating members of 
parliament. The political nature of the impeachment proceedings and the 
absence of the right of appeal are failings resulting from the natural 
inaptitude of the Senate of any State to exercise functions of adjudication 
with a level of legal sophistication required by the current international 
human rights situation. This would have been unimaginable two centuries 
ago. 
 
2016] DUE PROCESS IN THE BRAZILIAN PRESIDENTIAL IMPEACHMENT 345 
 
 
List of Abbreviations 
 
ACHR - American Convention on Human Rights 
ADPF - Arguição de Descumprimento de Preceito Fundamental 
ECHR - European Convention for the Protection of Human Rights 
ECtHR - European Court of Human Rights 
I/A Court H.R. - Inter-American Court of Human Rights 
IACHR - Inter-American Commission on Human Rights 
ICCPR - International Covenant on Civil and Political Rights 
STF - Federal Supreme Court of Brazil [Supremo Tribunal Federal] 
U.N. Human Rights Committee - United Nations Human Rights 
Committee 
 
 
 
346 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 28 
 
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