06/14/2007 Full Court. Direct Action of Unconstitutionality Rio Grande do Norte

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1 Federal Supreme Court Coordinator of Court Precedents Analysis D.J Register Nº /14/2007 Full Court Direct Action of Unconstitutionality Rio Grande do Norte RAPPORTEUR PETITIONER DEFENDANT : JUDGE CEZAR PELUSO : GENERAL PROSECUTOR OF THE REPUBLIC : LEGISLATIVE ASSEMBLY OF THE STATE OF RIO GRANDE DO NORTE SUMMARY: UNCONSTITUTIONALITY. Direct action. State Law nº 7.380/98 of Rio Grande do Norte. Sport activities involving fighting birds. Rinhas or Brigas de galo (cockfighting). Regulation. Inadmissibility. Environment. Animals. Subjection to cruel treatment. Violation of art. 225, 1º, VII of the Federal Constitution (FC). Action allowed to proceed. Case law. The state law authorizing and regulating practices or sport activities called rinhas or brigas de galo (cockfighting), which involve fighting birds, is unconstitutional. DECISION After analyzing, reviewing and discussing the case, the Judges of the Supreme Court, in Plenary Session, under the Presidency of Judge GILMAR MENDES, and in conformity with the minutes of the trial and the stenographic transcripts, have agreed by a unanimous vote to allow the direct action to proceed following the terms of the Rapporteur s decision. The President voted. Judge JOAQUIM BABOSA, CÁRMEN LÚCIA and JUDGE ELLEN GRACIE (President) justified their absence. Judge GILMAR MENDES (Vice-President) presided the court. Brasília, June 14 th of [Signature] Judge CEZAR PELUSO Rapporteur

2 06/14/2007 Full Court Direct Action of Unconstitutionality Rio Grande do Norte RAPPORTEUR PETITIONER DEFENDANT : JUDGE CEZAR PELUSO : GENERAL PROSECUTOR OF THE REPUBLIC : LEGISLATIVE ASSEMBLY OF THE STATE OF RIO GRANDE DO NORTE REPORT JUDGE CEZAR PELUSO (Rapporteur): 1. This is a direct action of unconstitutionality filed by the General prosecutor of the Republic, against Law nº of December 14 th of 1998 of the state of Rio Grande do Norte, as follows: Art. 1º - The creation and organization of exhibitions and competitions is allowed on the territory of the State of Rio Grande do Norte, as regulated under the terms of the present law. Art. 2º - The sporting activities of cockfighting inherent to the preservation of breeds of fighting birds shall be held in suitable venues called rinhadeiros [ring] and managed by Associations, Clubs or Sport Centers. Art. 3º - All sport Associations, Clubs or Sport Centers shall comply with the provisions of the present Law and any additional relevant legislation and regulation issued by the entities involved in this practice, with the purpose of preserving breeds of fighting birds. Art. 4º - The Department of Agriculture is competent to issue the permit allowing the organization of cockfights (exhibitions and competitions), upon request and payment of a tax to the Treasury. Art. 5º - To ensure security and protection of the attendees and the birds, and as a condition of issuing a permit, the Department of Agriculture shall inspect the competition venues annually. 3

3 Art. 6º - Prior to the competitions, a veterinarian and/or a veterinarian assistant licensed by the government shall certify the health status of the participating birds. Art. 7º - For international competitions, birds coming from abroad shall be kept in observation for a minimal period of 72 (seventy two) 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 past a certain hour, as determined in the referring law, competitions venues cannot be located in the vicinity of churches, schools and hospitals. Art. 9º - The access and presence of minors under 16 is prohibited at competition venues, unless accompanied by the parents or guardians. Art. 10º - The Federation of Fighting Birds Breeders of Grande do Norte State shall enact regulatory standards for the enrollment and accreditation process of Associations, Clubs and Sport Centers, within 60 (sixty) days of the enactment of the present law. Art. 11º - The present law will take effect the day of its publication, any provisions contrary to the present law shall be revoked. According to claimant: Through the enactment of this law regulating the breeding and display of fighting birds, the Rio Grande do Norte State legislator specifically intended to legalize cockfighting, also known as brigas de galo. The author adds: instead of protecting the fauna and the flora as a way to ensure the effectiveness of the constitutional right to an ecologically balanced environment, the Rio Grande do Norte State Legislature authorized cockfights, a practice incompatible with the constitutional prohibition on animal cruelty (p.4), in art. 225, 1º, section VII of the FC/88, verbis: 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 4

4 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 described by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty. The claimant seeks to have the action proceed with the purpose of declaring of Rio Grande do Norte State Law nº of December 14 th of 1998 unconstitutional. Information can be found p The Attorney General of the Union (p.27-65) and the General Prosecutor of the Republic (p.39-43) have ruled in favor of having the claim to proceed (p.27-35). This is the report. 5

5 OPINION JUDGE CEZAR PELUSO (Rapporteur): 1. The exact same question was reviewed in the case regarding the Santa Catarina State Law nº11.366/00, which also legalized and regulated the so-called brigas de galos. In a decision of June 29 th 2005, the plenary court unanimously decided in ADI nº (Judge-Rapporteur EROS GRAU, DJ of ): DIRECT ACTION FOR THE DECLARATION OF UNCONSTITUTIONALITY. LAW NO /00 OF THE STATE OF SANTA CATARINA. LAW AUTHORIZING AND REGULATING THE CREATION AND DISPLAY OF F I G H T I N G 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. (Emphasis ours). 2. The plenary court had also unanimously decided on September 3 rd of 1998, to grant injunctive relief in ADI nº (Judge- Rapporteur CARLOS VELLOSO), as follows: CONSTITUTIONAL. ENVIRONMENT. ANIMALS : PROTECTION : CRUELTY. BRIGAS DE GALOS. I. - Law 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 cruel treatment, which the Federal Constitution does not allow. F.C. art º, VII. II. - Injunctive relief is ordered, suspending the effect of law 2.895, of of the State of Rio de Janeiro. (Emphasis ours). 3. In a previous identical case, the second panel, by a majority of the votes, decided against the decision of Judge 6

6 MAURICIO CORRÊA (Judge-Rapporteur MARCO AURÉLIO). on June 3 rd of 1997 in RE Nº , in the following terms: CUSTOM CULTURAL MANIFESTATION INCENTIVE PROPORTIONNALITY PRESERVATION OF FLORA AND 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, which prohibits any practice that has the effect of subjecting animals to cruelty. This decision finds the practice referred to as farra do boi to be unconstitutional. (Emphasis ours). 4. This Court has consistently ruled against the legalization and authorization of any form of entertainment, which on the justification of preserving a cultural manifestation or a genetic heritage of said fighting breeds, subject animals to violent, cruel or atrocious practices, on the ground that such practices are contrary to art. 225, 1º, section VII of the Constitution of the Republic. 5. I consequently allow the direct action of unconstitutionality to proceed, with retroactive effect, to declare the Rio Grande do Norte State Law nº of December 14 th of 1998 unconstitutional. [signature] Judge CEZAR PELUSO Rapporteur 7

7 PLENARY SESSION EXTRACT DIRECT ACTION OF UNCONSTITUTIONALITY APPELLANT: RIO GRANDE DO NORTE RAPPORTEUR: JUDGE CEZAR PELUSO APPELLEE: GENERAL PROSECUTOR OF THE REPUBLIC APPELLEE: LEGISLATIVE ASSEMBLY OF THE STATE OF RIO GRANDE DO NORTE Opinion: The Court, by a unanimous vote, has allowed the durect action to proceed, following the terms of the Rapporteur s decision. Judge Joaquim Barbosa, Judge Cármen Lúcia and Judge Ellen Gracie (President) justified their absence. Judge Gilmar Mendes (Vice-President) presided the session. Plenary Session Presidency by Judge Ellen Gracie. Judge Sepúlveda Pertence, Celso de Mello, Marco Aurélio, Gilmar Mendes, Cezar Peluso, Carlos Britto, Eros Grau and Ricardo Lewandowski were present. Vice-General-Prosecutor of the Republic, Dr. Roberto Monteiro Gurgel Santos. [signature] Luiz Tomimatsu Secretary 8