COORDINATOR OF COURT PRECEDENTS ANALYSIS COURT REGISTER LAW REPORT N

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1 Federal Supreme Court 163 COORDINATOR OF COURT PRECEDENTS ANALYSIS COURT REGISTER LAW REPORT N /29/2005 PLENARY SESSION DIRECT ACTION OF UNCONSTITUTIONALITY 2,514-7 SANTA CATARINA RAPPORTEUR: MIN. EROS GRAU PLAINTIFF : ATTORNEY GENERAL OF THE REPUBLIC DEFENDANT: LEGISLATIVE ASSEMBLY OF THE STATE OF SANTA CATARINA SUMMARY: 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. D E C I S I O N After analyzing, recounting and discussing the case, the Judges of the Supreme Court, in Plenary Session, under the presidency of the Judge Ellen Gracie, and in conformity with the minutes of the trial and the stenographic transcripts, have agreed by a unanimous vote to enter the direct action in favor of plaintiff, following the terms in the Rapporteur s decision. Brasília, 29th of June, (signature) EROS GRAU RAPPORTEUR

2 Federal Supreme Court 164 DIRECT ACTION OF UNCONSTITUTIONALITY 2,514-7 SANTA CATARINA RAPPORTEUR: MIN. EROS GRAU PLAINTIFF: ATTORNEY GENERAL OF THE REPUBLIC DEFENDANT: STATE SENATE OF THE STATE OF SANTA CATARINA REPORT JUDGE Eros Grau: The Attorney General of the Republic filed a direct action, requesting provisional remedy, questioning the constitutionality of law n /00, of the State of Santa Catarina, which has the following content: "Art. 1 The breeding, display and organization of competitions between pure-bred fighting birds "Galus-Galus", are regulated under the terms herein. Art. 2 Cockfighting sports activities inherent to the preservation of fighting birds shall be held in enclosures and/or suitable venues located within entities called "rinhadeiros" (cockpit). Art. 3 The competent authority of the State Government shall issue permits, upon payment of a tax, authorizing the organization of such competitions. Art. 4 To ensure security and protection of the attendees and as a condition of issuing a permit, the competent authorities shall inspect annually competition venues. Art. 5 Prior to the competitions, a veterinarian and/or a licensed veterinarian assistant shall certify the health status of the participating birds. Art. 6 To preserve the silence, the order and the peace in the public space, the practice of cockfighting is prohibited on venues located within a minimal distance of 80 m [meters] from churches, schools and hospitals. Art. 7 The access and presence of minors under 16 is prohibited at competition venues, unless accompanied by the parents or guardians. Art.8 This law takes effect on the date of its publication. Art. 9 The provisions to the contrary hereafter shall be revoked. " S T F 102,002

3 Federal Supreme Court The applicant argues that the law under appeal violates article 225, 1 ", item VII 1 of the Constitution of Brazil in authorizing the practice of a competition subjecting animals to cruelty, instead of seeking to protect the fauna as a practical measure to enforce the right for an ecologically balanced environment and to observe the express legal prohibition of acts that may subject animals to cruel treatment. 3. The Legislative Assembly claims "the tradition of cockfighting involving breeds of roosters specifically bred for combat is entrenched in popular culture. And adds that the birds "have genes that naturally enhance fighting behaviors" and that they are not suitable for human consumption". They also claim one cannot speak in terms of cruelty when the animals fight each other. The physical exertion they undergo is comparable to the suffering imposed on the purebred English race horses"[p ]. 4. In view of the relevance of the matter, Judge Nelson Jobim, Judge-Rapporteur at the time, determined, in the form of article 12 of law No. 9,868/99, the testimony of the Attorney General of the Union and the Attorney General of the Republic [p. 136]. 5. The Attorney General of the Union, citing precedent of this Court, is in favor of allowing the claim to proceed "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 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 prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

4 Federal Supreme Court The Attorney General of the Republic, validating the terms of the initial pleading, is in favor of allowing the claim for a declaration of unconstitutionality to proceed. Such is the report, of which copies for submission to the Judges shall be made [RISTF, article-l72].

5 Federal Supreme Court 167 6/29/2005 FULL COURT DIRECT ACTION OF UNCONSTITUTIONALITY 2,514-7 SANTA CATARINA OPINION JUDGE Eros Grau (Rapporteur): This is a case of a direct action seeking to declare Law No /00, of the State of Santa Catarina unconstitutional for authorizing and regulating the creation, display and organization of "cockfighting". 2. The claim shall be upheld. 3. Indeed, by legalizing the detestable practice of cockfighting, the State Legislature ignored the rule of section VII 1º of article 225 of the Constitution of Brazil, which expressly prohibits practices that subject animals to cruelty. 4. In similar situations, this Court has affirmed the preservation of fauna to be a honorable end, and has thus banned the subjecting of animal life to cruelty. In this regard: CONSTITUTIONAL. ENVIRONMENT. ANIMALS: PROTECTION: CRUELTY. "COCKFIGHTING". I. - Law 2,895 of of the State of Rio de Janeiro, by authorizing and regulating competitions between fighting cocks", authorizes and regulates the submission of these animals to cruel treatment, which is an act that the Federal Constitution does not allow: C.F., art. 225, 1º, VII. II. Injunctive relief accepted, suspending the effectiveness of law 2,895, of , of the State of Rio de Janeiro." [ADI n. 1856/MC, Judge-Rapporteur Carlos Velloso, Court Register 09/22/2000]

6 Federal Supreme Court Another precedent shall be cited, RE n.153,531, 2 in which the controversy of "Farra do Boi" in the very same State of Santa Catarina, was discussed. Judge Marco Aurélio, Rapporteur for the appellate decision, pointed out that: "[...] cruelty is precisely what we observe years after years in the context of what is referred to as seasonal festivity. Cultural manifestation must be encouraged, but not cruel practices. Once allowed the so-called "farra do boi", in which a deranged mob goes after the animal (a bull) in terrifying ways, as we have seen, no police authority is able to restrict this practice. I cannot seem to find an intermediate position. The distortion reached such point that only a measure to strictly ban the practice could avoid that which we all observed in The "Jornal da Globo" (national TV journal) showed a slashed and bloodied animal rushing straight into a residence and causing injury to the people inside. It is my understanding that such practice has gotten to such a point as to affect the provision in section (VII) of article 225 of the Federal Constitution. This case is not about a cultural manifestation deserving protection under the Federal Constitution. As I said previously above, this is a practice which inherent cruelty is dreadful and arises from the actions of people animated by reprehensible passions who pursue, by all means, the sacrifice of the animal." 6. The same arguments contained in that precedent are enough to rebut the claims of the State Legislature of Santa Catarina. Considering the above, I hereby allow the claim of direct action to proceed and declare the unconstitutionality of law No /00, of the State of Santa Catarina DJ of

7 Federal Supreme Court 169 PLENARY SESSION EXTRACT OF THE MINUTES DIRECT ACTION FOR THE DECLARATION OF UNCONSTITUTIONALITY PROCED.: SANTA CATARINA RAPPORTEUR: JUDGE EROS GRAU PLAINTIFF : ATTORNEY GENERAL OF THE REPUBLIC DEFENDANT : STATE SENATE OF THE STATE OF SANTA CATARINA Decision: The Court, by unanimity, has allowed the direct action to proceed, following the Rapporteur s opinion. The president has voted. Judge Nelson Jobim (President), and in this trial, Judges Carlos Velloso and Marco Aurélio justified their absence. Judge Ellen Gracie (Vice-President) presided over the trial. Plenary session, Presidency of Judge Ellen Gracie (Vice President). Attending the session, Judges Sepúlveda Pertence, Celso de Mello, Carlos Velloso, Marco Aurélio, Gilmar Mendes, Cezar Peluso, Carlos Britto, Joaquim Barbosa e Eros Grau. Deputy Attorney General of the Republic, Dr. Haroldo Ferraz da Nóbrega. ( signature) Luiz Tomimatsu Secretary