05/26/2011 Full Court. Direct Action of Unconstitutionality Rio de Janeiro

Transcription

1 ADI.856 / RJ 275 Federal Supreme Court Coordinator of Court Precedents Analysis Dje nº 98 Disclosed 0/3/20 Published 0/4/20 05/26/20 Full Court Direct Action of Unconstitutionality.856 Rio de Janeiro Rapporteur : Judge Celso de Mello Petitioner : General Prosecutor of the Republic Defendant : Governor of the State of Rio de Janeiro Defendant : Legislative Assembly of the State of Rio de Janeiro SUMMARY: DIRECT ACTION OF UNCONSTITUTIONALITY COCKFIGHTING (RIO DE JANEIRO LAW Nº 2.895/98) STATE LEGISLATION ENCOURAGING THE CRIMINAL PRACTICE RELATED TO THE DISPLAY AND COMPETITIONS OF BREEDS OF FIGHTING BIRDS LEGISLATIVE STATUTE ENCOURAGING ACTS OF CRUELTY ON FIGHTING COCKS ENVIRONMENTAL CRIME (LAW Nº 9.605/98, ART. 32) ENVIRONMENTAL LAW RIGHT TO PRESERVING INTEGRITY (FEDERAL CONSTITUTION, ART. 225) QUALIFIED PREROGATIVE BASED ON THE SOCIAL IMPACT THIRD GENERATION RIGHT (ALSO CALLED OF NEW DIMENSION) THAT CONSECRATES A POSTULATE OF SOLIDARITY. CONSTITUTONAL PROTECTION OF THE FAUNA (FEDERAL CONSTITUTION, ART. 225, º, SECTION VII) NON-CHARACTERIZATION OF COCKFIGHTING AS A CULTURAL MANIFESTATION RECOGNITION OF UNCONSTITUTIONALITY OF THE STATE LAW INCRIMINATED DIRECT ACTION GRANTED. STATE LEGISLATION LEGALIZING THE ORGANIZATION AND COMPETITION BETWEEN FIGHTING BIRDS A NORM INSTITUTIONALIZING THE PRACTICE OF CRUELTY TOWARDS THE FAUNA - UNCONSTITUTIONALITY. - The promotion of cockfighting, in addition to being a criminal practice in violation of environmental law, constitutes a conduct affecting the Constitution of the Republic, which prohibits the submission of animals to cruelty. The perverse nature of cockfighting, similar to that of farra di boi (RE 53.53/SC) does not allow such a practice to be qualified solely as an innocent cultural manifestation of folkloric character. Case law. - The judicial and constitutional protection afforded to the fauna includes wild animals, both domestic and domesticated animals, the latter category including cocks used in fights, since the text of the Constitution prohibits, in a different clause, any form of animal cruelty. - This special protection, which bases its legitimacy on the authority of the Constitution of the Republic, is justified

2 ADI.856 / RJ 276 by the necessity to prevent risks threatening or endangering all form of life, not just human life, but also animal life, whose integrity would be compromised without the constitutional ban on degrading, perverse and violent practices towards irrational beings, such as fighting birds ( gallus-gallus ). Legal doctrine. ALLEGATION OF DEFECTIVE COMPLAINT - The complaint is not defective. In challenging the constitutional validity of the state law, the complaint (a) refers to the constitutional standard, which authority was at risk of being violated, (b) clearly establishes the antagonistic relations between a state law of minor importance in the legal order and the Constitution of the Republic, (c) provides intelligible basis to the claimant s arguments supporting the claim of unconstitutionality, and (d) objectively recognizes the legal basis of the petition and the subsequent declaration of constitutional illegitimacy of the state law within the process of abstract judicial review, thus defining the material scope of the decision to be pronounced by the Supreme Tribunal Federal. Case law. DECISION After analyzing, reviewing and discussing the case, the Judges of the Supreme Court, in Plenary Session, under the Presidency of Judge Cezar Pelluso, and in conformity with the minutes of the trial and the stenographic transcripts, have agreed by a unanimous vote to dismiss the preliminary defense and, on the merits, also by a unanimous vote, to allow the direct action to proceed to declare unconstitutional the Law nº2.895, passed on 20 th of March, 998, of the State of Rio de Janeiro, following the terms of the Rapporteur s decision. Judge Ellen Gracie justified her absence. Brasília, 26 th of May, 20 (signature) CELSO DE MELLO - RAPPORTEUR

3 ADI.856 / RJ /26/20 Full Court DIRECT ACTION OF UNCONSTITUTIONALITY.856 RIO DE JANEIRO RAPPORTEUR CLAIMANT DEFENDANT DEFENDANT : JUDGE CELSO DE MELLO : GENERAL PROSECUTOR OF THE REPUBLIC : GOVERNOR OF THE STATE OF RIO DE JANEIRO : LEGISLATIVE ASSEMBLY OF THE STATE OF RIO DE JANEIRO REPORT JUDGE CELSO DE MELLO (Rapporteur): the General Prosecutor of the Republic proposed a direct action of unconstitutionality aiming to question the judicial and constitutional validity of the law of the state of Rio de Janeiro nº2.895, passed on the 20 th of March in 998 (p ). The Rio de Janeiro state law nº2.895 was amended with the purpose of legitimizing the organization and the display of competition between non-wild birds, as follows (p ): LAW Nº2.895 of March 20 th 998. AUTHORIZES THE ORGANIZATION OF EXHIBITIONS AND COMPETITIONS BETWEEN BREEDS OF FIGHTING BIRDS (NON-WILD BIRDS)

4 ADI.856 / RJ 278 TO PRESERVE AND DEFEND THE GENETIC HERITAGE OF THE SPECIES GALLUS-GALLUS. THE GOVERNOR OF THE STATE OF RIO DE JANEIRO, I hereby affirm that the Legislative Assembly of the State of Rio de Janeiro enacts the following law, which I authorize: Art. º - The creation and organization of exhibitions and competitions between fighting birds of the breed "Gallus-Gallus" is allowed and regulated under the terms herein. Art. 2º - The sporting activities of cockfighting inherent to the preservation of breeds of fighting birds shall be held in enclosures and/or suitable venues in Associations, Clubs or Sport Centers called rinhadeiros [ring]. Art. 3º - All sport Associations, Clubs or Sport Centers shall comply with the general norms enacted in the Law. Additionally, the Federation of Sport and Preservation of Fighting Birds of Rio de Janeiro State shall enact annual regulations, for purposes of enabling the preservation of fighting birds in annual competitions held in accredited venues. Art. 4º - Military forces and fire brigades are competent authorities to issue the permit allowing the annual organization of cockfights (exhibitions and competitions) to the Associations, upon request and payment of a tax to the Treasury. Art. 5º - As a preventive measure to attendees, competent authorities shall inspect the venues annually before issuing the permit. Art. 6º - Prior to the competitions, a veterinarian and/or a licensed assistant shall certify the health status of the participating birds.

5 ADI.856 / RJ 279 Art. 7º - For international competitions, birds coming from abroad shall be kept in observation for a minimal period of 72 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, the practice of cockfighting is strictly prohibited on venues located within a minimal distance of 80 meters from churches, schools and hospitals. Art. 9 - The access and presence of minors under 6 is prohibited at competition venues, unless accompanied by the parents or guardians. Art. 0 The Federation of Sport and Preservation of Fighting Cocks of Rio de Janeiro State shall enact regulatory standards for the enrollment and accreditation process of Associations, Clubs and Sport Centers, within 30 days of the enactment of the present law. Art. The present law will take effect the day of its publication, any provisions contrary to the present law shall be revoked. Rio de Janeiro, 20 th of March, 998. (emphasis mine) The author of this direct action of unconstitutionality claims the unconstitutionality of the above-mentioned statute, alleging that such norm, in allowing the organization and the display of competitions between breeds of fighting birds (nonwild animals), violates art. 225 caput, c/c º section VII of the Constitution of the Republic. Here is a summary of the arguments of the General Prosecutor of the Republic in seeking the justify

6 ADI.856 / RJ 280 the claim of unconstitutionality now under review (p ): ( ) regardless of the legislative intent of the statute, which constitutional and judicial validity is being questioned in the present direct action of unconstitutionality, it remains undisputed and manifest that State Law nº 2.895/98 allows the practice of a competition that subjects animals to cruelty, by regulating rings for instance, in obvious violation of the Constitutional rule banning cruel practices involving animals. By acting in opposition to the protection mandate regarding the fauna and flora as a way to ensure the effectiveness of the constitutional right to an ecologically balanced environment, and by acting in opposition to the prohibition on animal cruelty practices, the Rio de Janeiro State Legislature has acted outside of the programmatic constitutional norm. There is a contradiction between the statutory language and the Constitution, as the state legislator violated the obligation states have to intervene for the defense of the environment (art. 225, caput ). To illustrate such obligation incumbent on the States, it is relevant to quote Professor JORGE BUSTAMANTE ALSINA: in virtue of the police duty of the Nation and the regions to protect life, property, safety, morality and public health, the State has a duty to adopt laws or regulations regulating such activities, for the purpose of environmental conservation ( ) ( in, DERECHO AMBIENTAL Abeledo-Perrot-Buenos Aires, p.6-62). (emphasis mine). In civil legal traditions, programmatic constitutional norms set objectives directing institutions to complete the intent of the constitutional legislator. Such norms are usually directed to the Legislature. Although programmatic constitutional norms are to be complemented by the Legislature, and any inferior norms in the legal order that contradicts an objective contained in a programmatic constitutional norm can be declared unconstitutional.(tn)

7 ADI.856 / RJ 28 In providing the requested information, the Rio de Janeiro State Legislative Assembly moved to request the dismissal of the direct action of unconstitutionality, arguing the constitutional validity of the contested law (p. 38-4): In responding to the request nº 336/P for further information to instruct the DIRECT ACTION OF INCONSITUTIONNALITY Nº856, directed at STATE LAW Nº2895, of , we hereby attach a copy of the legislative history of LEGISLATIVE PROPOSAL Nº285/85, which resulted in the above-mentioned law (DOC.I). In addition to such legislative history, we deem relevant emphasizing that, in this case, and over the process of translating norms into adequate law, the Legislative Chamber was driven by the willingness to regulate this activity. Once promulgated, the law would officially enable the inspection of various associations and sport federations of cockfighting, and would subject such activity to the authorization and supervision of the Government, to ensure such activity is practiced in adequate venues and that such activity abides by strict safety rules. From a social perspective, such law is an obvious and strong instrument allowing the integration of rural communities through the creation of numerous jobs similarly to other States. There are approximately 00 (one hundred) cockpits and more than 70 (seventy) sport centers in Rio de Janeiro. On the judicial aspect of this case, and without prejudice to the previous considerations, we shall emphasize that the state law with the constitutional provision of art. 225 caput c/c º section VII, are not contradictory. Indeed, and according to the teachings of emeritus Prof. José Alfonso da Silva ( in, Direito Ambiental Constitucional, Malheiros, S{ao Paulo, 2ª ed., 995, p.28 usque 29), in the third commentary on the constitutional mechanism,

8 ADI.856 / RJ 282 the Constitution of 988 no longer affords the Union an exclusive competence to legislate on hunting, fishing and fauna. Rather, the 988 Constitution limited the authority of the federal Legislature to enacting general norms only, while affording the States and the Federal Districts joint competence to regulate those fields, and to complement the general norms enacted by the federal government. The eminent Professor observes that the fauna as a component of ecosystems is the subject of the protection. More broadly, Prof. José Alfonso da Silva pursues, the word fauna refers to all the animals of a given region of geological period, including aquatic animals, the fauna of trees and of the soil (insects and microorganisms), and wildlife (mammals and birds). The eminent constitutional law specialist adds that this category does not include domestic and domesticated animals, nor captive animals, in nurseries and zoos authorized under the law. The sub-examen hypothesis aims to extend the scope of the constitutional protection to fighting birds, categorized as domesticated birds according to an official declaration by the Brazilian Institute of the Environment and Renewable Natural Resources IBAMA, an entity attached to the Ministry of the Environment, Water Resources and Legal Amazon region (DOC. II). As a result, fighting birds fall outside the material scope of the constitutional mandate. The claim would not success even if we were to admit, ad argumentum tantum, that fighting cocks belong to the wildlife category. A close examination of the normative meaning contained in the expression ( ) prohibition of all practices which ( ) subject animals to cruelty confirms that this section prohibits practices in which there is a human act against the animal, such as it occurs in hunting, bird shooting and the infamous farra do boi. In galismo [cockfighting], birds fight in the absence of any direct human interference. The birds battle following their natural fighting instincts, in absence of any coercion. One cannot derive from the Constitution any rule restricting or banning the practice regulated in the state statute under review. The legislative history further informs that the constitutional norm did not refer to cockfighting,

9 ADI.856 / RJ 283 but was rather directed to the so-called farra do boi. Again, the constitutional legislator primarily referred to farra do boi. The rationale deriving from both the wording and the spirit of the statute reveals the conformity of the contested law with the Federal Constitution, with no violation whatsoever. Additionally, in a case where there exist two or more interpretations of a legal rule, the principle of conservation of legal norms derived from the principle of interpretation of infra-constitutional laws and regulations only admits the meaning allowing for the conservation of the contested law. Such contested law shall not be declared invalid or null when it could be interpreted as conform to the Constitution. In summary, from a legal perspective, law nº 2895/98 remains valid, although a different conclusion might be reached if this law were to be disputed from a philosophical perspective, as many have. Even by admitting to review the law under a philosophical perspective, for the sake of the debate, the claim would fail equally. Over the exercise of its political and legislative power, the legislator has indeed faced a choice: he could either (a) abstain from regulating; or (b) regulate the activity. The legislator chose the second option, by materializing its police powers in normative acts aiming to control the activity [of cockfighting], in compliance with the relevant laws and regulations. With this in mind, we hope and trust that (a) Appeal will be denied given the absence of a right of action; (b) The petition will be dismissed before the manifest constitutionality of Law nº 2895/98. (emphasis mine)

10 ADI.856 / RJ 284 The Rio de Janeiro Governor, in moving to dismiss the direct action for lack of right of action added the following information as summarized below (p ): The defectiveness of the complaint shall be emphasized. The author, using a poor argumentation, does not indicate which provisions in the contested law would be facially contrary to the Federal Constitution. The author further fails to substantiate the specific reasons why each of the provisions in the contested law would be unconstitutional. The introduction of the complaint also contains similar errors, by failing to draw a logical conclusion from the account of the facts (art. 295, section II of the Code of Civil Procedure). Because the heart of the claim lies in potential animal cruelty, then the reality of animal cruelty must be and can only be substantiated through evidence. However, the standard of the judicial abstract review of the Supreme Court does not allow admission of facts and evidence. Respectfully, the defects contained in the complaint call for a dismissal of the direst action, as mandated under section I to III of art. 295 of the Code of Civil Procedure. ( ) the complaint does not detail which provisions in the contested law could potentially harm the environment, or to which extent such law would fail to protect the fauna, represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty through practices, according to the language used in the Constitution, defined in the manner prescribed by law. The limited scope of the constitutional review requires a definition of such practices. However, once defined, violations of the law would only result in illegality and not unconstitutionality. The lack of definition [in the constitutional provision] leaves unanswered and highly dependent on the evidentiary context the question of, for instance, whether horse races could be considered unlawful.

11 ADI.856 / RJ 285 The lack of a legal definition leads to subjectivity, inconsistence and vagueness, arbitrariness, abuse of powers and therefore to the manifest opposition to the constitutional law, which provides that no one shall be obliged or refrain from doing something except by virtue of law (art. 5º section II of the Federal Constitution). Therefore, there is nothing in the contested statute that directly affects the constitutional law. Unlike alleged, the statute provides rules of preservation and establishes police powers to ensure safety during events involving numerous individuals, and thereby securing order during social events. As a consequence of this information, we hope the Honorable Court will move to dismiss summary judgment, or, in the light of the principle of judicial economy, will consider the action unfounded on the merits. (emphasis mine). In granting the injunctive relief as requested by the claimant, the plenary court of the Supreme Federal Tribunal, by a majority of the votes, ruled in favor of suspending, until final judgment on the direct action is made, the execution and applicability of Law nº 2.895, of 02/20/998 of the State of Rio de Janeiro, in the following ruling (p. 20): CONSTITUTIONAL. ENVIRONMENT. ANIMALS : PROTECTION : CRUELTY. BRIGAS DE GALOS. I. Law of 02/20/998 of the State of Rio de Janeiro, by legalizing and regulating competitions between fighting birds, legalizes and regulates the subjection of such animals to

12 ADI.856 / RJ 286 cruel treatment, which the Federal Constitution does not allow. F.C. art. 225 º, VII. II. Injunctive relief is ordered, suspending the effect of law 2.895, of of the State of Rio de Janeiro. His Eminence the General Attorney of the Union, acknowledging the observations of the Legislative Assembly and the Governor, gave opinion in favor of the dismissal of the claim (p ). However, the Public Prosecutor s Office, in accordance with the learned opinion by the General Prosecutor of the Republic, ruled in favor of admitting the claim, summarized as follows (p ): Direct action of unconstitutionality. Constitutional and environmental Law. Rio de Janeiro Law nº 2.895, of March 20 th of 998, which regulated cockfighting as a sport. Motion to deny summary judgment denied. No necessity to challenge specifically and individually each provision in the contested law. Claimant successfully demonstrated the unconstitutionality of the law. Merit. Article 225, º, section VII of the Federal Constitution. The prohibition on subjecting animals to cruel practices applies to all species of the fauna, including domesticated animals and captive wildlife. In favor of granting the action. (emphasis mine) This is the report, the Secretary shall give a copy to all the Eminent Judges of this Distinguished Tribunal (Lei nº 9.868/99, art.9º, caput ; RISTF, art.72).

13 ADI.856 / RJ 287 OPINION JUDGE CELSO DE MELLO (Rapporteur): Mister President, first and foremost, I shall highlight that contrary to suggested in the information provided by the State Government of Rio de Janeiro, the claim submitted by the General Prosecutor of the Republic is not defective. Such claim complies in all respect with the required formal structure for this kind of procedural document, in compliance with all the requirements set forth in art. 3º of Law nº9.868, of November 0 th of 999, which provides as follows: Art. 3º. The claim shall provide: I The language of the contested law or regulation, and the legal foundations of the claim for each challenge made; II The claim, properly detailed. (emphasis mine). In the present case, the claim that initiated the present judicial review contests the constitutional validity of the Rio de Janeiro Law nº 2.895/998, indicates the provision allegedly violated (FC, art. 225, º,

14 ADI.856 / RJ 288 VII), establishes the opposition between the provision under review and the Constitution of the Republic, provides groundings for the unconstitutionality claim, and clearly explains such groundings, and eventually validates the claim. As a consequence, the claim declared the constitutional illegitimacy of the state law, thereby defining the material scope of the decision to be pronounced by the Supreme Federal Tribunal. It should be noted that in cases virtually similar to this one (ADI 30/PR, Rapporteur Judge MARCO AURÉLIO ADI 2.57-MC/BA, Rapporteur Judge MOREIRA ALVES), the Supreme Federal Tribunal dismissed the alleged defectiveness of the complaint, as evidenced in the following summary of the ruling: ( ) ALLEGATION OF DEFECTIVE COMPLAINT: DENIED. - The complaint is not defective. In challenging the constitutional validity of the provision enacted by the Superior Electoral Tribunal, the complaint (a) refers to the constitutional standard, which authority was at risk of being violated, (b) clearly establishes the antagonistic relations between the state provision of minor importance in the legal order and the Constitution of the Republic, (c) provides intelligible basis to the claimant s arguments supporting the claim of unconstitutionality, and (d) objectively

15 ADI.856 / RJ 289 recognizes the legal basis of the petition and the subsequent declaration of constitutional illegitimacy of the resolution within the process of abstract judicial review, thus defining the material scope of the court ruling to be pronounced by the Supreme Tribunal Federal. (RTJ 95/82-86, 84-85, Rapporteur Judge CELSO DE MELLO) Unlike the view sustained in the documentation submitted by the State Government of Rio de Janeiro, the fact that the complaint is based on cruelty is not indicative per se that the constitutional review necessarily requires providing factual evidence. This is especially true in the present case ( briga de galos [cockfighting]), where the birds suffer from injuries when they fight, as we all know. With that in mind, I am of the opinion that the claim submitted by the General Prosecutor of the Republic shall not be disqualified as defective from a procedural perspective. On the contrary, such claim turns out to be legally valid and formally proper to provide grounds for a constitutional review. The allegation of defective complaint sustained by the Rio de Janeiro State Governor (p.52-55) and the General Attorney of the Union (p ), in which both contend the General Prosecutor of the Republic

16 ADI.856 / RJ 290 should have contested the constitutional validity of each of the (eleven) articles of the contested statute, is unfounded. I am of the opinion that the learned General Prosecution Office of the Republic is correct in dismissing the allegation of defective complaint, as follows (p ): The request to declare the complaint defective filed by the defendant shall be dismissed. The petitioner asked for a declaration of unconstitutionality of state law nº 2895/98, founding its claim on the opposition of the law with art. 225, º, section VII of the Federal Constitution. The unconstitutionality argued by the author would be present throughout the entire statute, thus making the contestation of the constitutionality of each of the provisions, as requested by the defendant, unnecessary. (emphasis mine) Indeed, the review of the contested statute shows that the legal reform enacted by the state of Rio de Janeiro aimed to regulating the brigas de galos (cockfighting). In doing so, the state enacted various rules in the contested law aiming to enabling and regulating competitions between fighting birds on the state territory, by determining which venues would or would not be authorized to organize competitions, by requiring

17 ADI.856 / RJ 29 that a veterinarian (or a licensed assistant) certifies the health status of the participating birds, by establishing special regulation of international competitions with birds coming from abroad, while also strictly prohibiting the access of minors under 8 years-old who are not accompanied by their parents or guardians. All this provides evidence that the enactment of all those legal provisions followed one sole purpose: detailing the regulation of competitions between breeds of fighting birds (nonwildlife) to preserve and defend the genetic heritage of the species gallus-gallus ; such objective being the reason the Rio de Janeiro State Law nº2.895/998 exists. In arguing the unconstitutionality of briga de galos (cockfighting) based on the incompatibility of such practice with the constitutional provision protecting animals from cruelty, the claimant challenged the Law nº 2.895/998, enacted by the State of Rio de Janeiro in its entirety. The claimant challenged the entirety of the invalid law because all the provisions in the contested law were instrumental and geared towards enabling, in the State of Rio de Janeiro, a practice considered unlawful and criminal in the Brazilian positive legal system,

18 ADI.856 / RJ 292 as provided in art. 32 of the Law nº 9.605/998 which provides the following criminal definition: Art. 32. Committing abuses, mistreatment, injuring or mutilating wild, domestic or domesticated, native or exotic animals: Penalty detention, three months to a year, and fine. º The same penalty applies to whoever proceeds to painful or cruel experiments on a live animal, including for education and scientific purposes, when alternatives exist. 2º The penalty is increased by a one sixth to one third in case of the death of the animal. (emphasis mine) This is why the various provisions composing the statute under review can be justified only in regards to the statute as a whole. Even if such provisions were to be replaced, they would still fail to modify the ultimate purpose of the statute for which the provisions were drafted: the organization of competitions between breeds of fighting birds (non-wildlife). It is therefore unnecessary to contest each of the provisions of the contested statute. The formal examination by the Eminent General Prosecutor of the Republic of the entire statute through which the State of

19 ADI.856 / RJ 293 Rio de Janeiro locally regulated briga de galos (cockfighting) is therefore correct. With these observations in mind, I now proceed to examine the merits of the present constitutional contention, based on the manifest unconstitutionality of the Law nº 2.895/998, enacted by the State of Rio de Janeiro. The claim of unconstitutionality directed to the statute is based on the practice of acts, indisputably cruel towards the birds of fighting breeds ( gallus-gallus ). These birds are subjected to mistreatments in competitions promoted by offenders to constitutional and environmental law, who violate by their criminal conduct, art. 225, º, section VII of the Constitution of the Republic, which contains the following prohibition: Art. 225 º - 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,

20 ADI.856 / RJ 294 cause the extinction of species or subject animals to cruelty. (emphasis mine) The protection of the fauna and more specifically the prohibition of practices that subject animals to cruelty indicate that the constitutional legislator intended to ensure the effectiveness of the fundamental right of the preservation of the integrity of the environment. Such fundamental right abides by a broad and inclusive concept of the environment, which embraces the notions of natural environment, cultural environment, artificial environment (urban areas) and working environment, as theorized by the legal doctrine (CELSO ANTÔNIO PACHECO FIORILLO, Curso de Direito Ambiental Brasileiro, p.20-23, section n. 4, 6th ed., 2005, Saraiva; JOSÉ ALFONSO DA SILVA, Direito Ambiental Constitucional, p. 2-24, sections ns. 2 and 3, 4 th ed./2 nd pub., 2003, Malheiros; JOSÉ ROBERTO MARQUES, Meio Ambiente Urbano, p.42-54, section n , Forense Universitária, v.g.). At this point, it should be emphasized that the provision in art. 225, section VII, º of the Constitution of the Republic not only conveys an ethical and legal value, but also grants a rationale for such prohibition, which that of the necessity to prevent risks threatening or endangering all form of life, not only human life, but also animal life,

21 ADI.856 / RJ 295 whose integrity would be compromised by degrading, perverse and violent practices directed to irrational beings. It therefore emerges from the constitutional provision invoked by the claimant (FC, art. 225, º, VII), the intent of the constitutional legislator to establish a link between the respect for the fauna and environmental protection, making of the respect for the fauna in general an absolute condition for the survival and the preservation of the environment, on which humans also depend. The close connection between the duty of ethical and legal nature to protect the fauna (and to not engage in cruel practices towards the animals), and the survival of mankind in an ecologically balanced environment is thus manifest. As a result, Mister President, we should acknowledge the highly detrimental impact of predatory and harmful conducts towards wildlife on environmental conservation, whether such conducts involve jeopardizing ecological functions, endanger species or even subject animals to acts of cruelty.

22 ADI.856 / RJ 296 Hence the importance of the provisions listed under art. 225 of the Constitution, which all translate the consecration at a constitutional level of one of the most meaningful prerogatives among modern societies in our legal system. This prerogative, goes well beyond protecting individual interests in recognizing that all have a right to an ecologically balanced environment. As previously developed by the Supreme Federal Tribunal (RTJ 58/ , Rapporteur Judge CELSIO DE MELLO), and as exposed in the work of CELSO LAFER ( A Reconstrução dos Direitos Humanos, p. 3-32, 988, Companhia das Letras), such right [to an ecologically balanced environment] is typical of a thirdgeneration human right afforded to mankind, outside purely individual consideration. The nature of this right justifies the specific duty incumbent upon the Government and the communities (PAULO AFFONSO LEME MACHADO, Direito Ambiental Brasileiro, p. 38-4, section n. 3, 9 th ed., 20, Malheiros) to defend and to protect the environment, to the benefit of present and future generations. Such duty also aims to averting serious intergenerational

23 ADI.856 / RJ 297 conflicts due to the lack of solidarity in preserving the integrity of such essential common goods. Because of the well-founded concerns peoples and the international community have expressed on the issue of human rights, it is relevant to acknowledge, Mister President, that these rights, in their affirmation and as they consolidated, include various levels of interpretation and approaches, each of which fall within different categories. In such a context, as pointed out before by this Court (RTJ 64/58-6), first-generation human rights (civil and political rights) include classic freedoms, negative or positive, which come in support of the principle of liberty. Second-generation rights (economic, social and cultural rights) reflect positive freedoms, real or concrete, in support of the principle of equality. The third generation of human rights, M. President, embody collective powers which are owned generically in a

24 ADI.856 / RJ 298 diffused manner by all the members of social groups. These rights consecrate the principle of solidarity and thereby constitute, along with fourth-generation human rights (those include the right to development and the right to peace), an important step in the process of the expansion and recognition of human rights as fundamental inalienable values, as theorized by the legal doctrine (CELSO LAFER Desafios: Ética e Política, p.239, 995, Siciliano). The following excerpt of PAULO BONAVIDES s lesson ( Curso de Direito Constitucional, p.48, section n.5, 4 th ed., 993, Malheiros) insists on the third-generation human right to an ecologically balanced environment: The new legal field of the human rights to freedom progressively came to include the principles of liberty and equality. First characterized by humanism and universality, over the end of the century, the thirdgeneration rights have tended to crystallize on rights that are not specifically directed to the protection of individual interests, of a group or a determined State. These rights primarily address mankind,

25 ADI.856 / RJ 299 as a supreme value of life. Legal commentators and lawyers are already familiar with third-generation human rights, thereby achieving a thirty-year movement towards the materialization of fundamental rights. These rights gave rise to reflections on the topics of development, peace, environment, communication and world human heritage. (emphasis mine) The concern over the environment which is now expressed across generations and commands to act in favor of future generations (PAULO AFFONSO LEME MACHADO, Direito Ambiental Brasileiro, p. 38-4, section n.3, 9 th ed., 20, Malheiros) have become an object of regulation and legal proclamations not only in the national laws of sovereign states, but also in international declarations, illustrating nations infallible commitment to respecting this fundamental right [to an ecologically balanced environment]. Since the Stockholm Declaration on the environment (972) and the conclusions of the United Nations Conference on the Environment and Development (Rio/92), the environmental issue has now become one of the most significant subject in the new international agenda (GERALDO EULÁLIO DO NASCIMENTO E SILVA, Direito Ambiental Internacional, 2 nd ed., 2002,

26 ADI.856 / RJ 300 Thex Edition), even more so since the recognition that humans have the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits the development of their full potential and a life of dignity and well-being. On that topic, the contribution of the learned JOSÉ AFONSO DA SILVA ( Direito Ambiental Constitucional, p , section n. 7, 7 th ed., 2009, Malheiros) is valuable: The Stockholm Declaration has paved the way to the recognition of the existence of an ecologically balanced environment as a fundamental right in constitutions, just as social human rights yet to be fulfilled and those that shall be preserved. The important point ( ) is to realize that the right to life, the basis of all other fundamental human rights, must lead environmental protection. The [protection of] the environment is a preponderant factor, and as such, it must stay superior to any other considerations like the concern over the development, the protection of property rights, or considerations of the private sector. These latter rights are also protected under the Constitution, but they cannot supersede the fundamental right to life, which protection is directly ensured through environmental protection. Indeed, the protection of a qualitative environment is paramount because it is through the protection of the environment that we can protect a superior value, that of the quality of life. (emphasis mine)

27 ADI.856 / RJ 30 Mister President, the idea clearly begins to emerge that the environment is inherent to public heritage, and that social and government institutions must protect it as such. The necessity to protect the environment translates into a strict obligation that falls equally on public authorities and the people, for the benefits of present and future generations (MARIA SYLVIA ZANELLA DI PIETRO, Política do Meio Ambiente, in Revista Forense 37-79, 8; LUÍS ROBERTO BARROSO, A Proteção do Meio Ambiente na Constituição Brasileira, in Revista Forense 37/6, 67-68, v.g.). In reality, Mister President, the right to a preserved environment is a legal right collectively hold, reflecting within the process of the affirmation of human rights, the expression of a right granted not to a single individual, but in a more inclusive sense, to the community as a whole. National legal systems and legal declarations at the international level are therefore no longer indifferent to the recognition of the collective ownership of the right to a preserved environment, as well as that of the right to an

28 ADI.856 / RJ 302 ecologically balanced environment, as previously mentioned and as exposed by eminent authors (JOSÉ FRANCISCO REZEK, Direito Internacional Público, p , section n. 32, 989, Saraiva; JOSÉ AFONSO DA SILVA, Direito Ambiental Constitucional, p and 58-70, 7 th ed., 2009, Malheiros). The constitutional law of Brazil creates an obligation on the Government to protect the fauna by prohibiting practices that represent a risk to the ecological function of the fauna or cause the extinction of species or, even, subject animals to cruelty. This mandate aims at making effective the protection of the environment as a fundamental right, to eliminate the advent of inter-generational conflicts. It bears referring the legal doctrine on wildlife protection and the work of the Prosecutor of the State of São Paulo, Dr. DANIEL R. FINK, regarding environmental law and sustainability (JOSÉ ROBERTO MARQUES, Sustentabilidade e Temas

29 ADI.856 / RJ 303 Fundamentais de Direito Ambiental, p.7, section n.4., 2009, Millenium): 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 (section VII). The flora and the fauna are important components of the natural and biological environment, and they benefit from a particular legal protection under environmental law. The fauna and the flora constitute undoubtedly the most visible aspect of the environment, and people primarily refer to them when evoking the environment. Environmental laws have established different level of restrictions ensuring the protection fauna and the flora. Some protections are partial, and others are strict. The constitutional provision expressed a strict prohibition by prohibiting all practices which represent a risk to the ecological function of the flora and the fauna, cause the extinction of species or subject animals to cruelty. Partial prohibitions are determined based on the degree to which the life, the quality of life and the environment depend on a given species or ecosystem. (emphasis mine) The Supreme Federal Tribunal, on the issue of animal cruelty in several previous decisions, had determined this practice as directly incompatible with art. 225, º, section VII of the Constitution of the Republic: CUSTOM CULTURAL MANIFESTATION FOSTERING PROPORTIONNALITY PRESERVATION OF THE FLORA AND THE 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,

30 ADI.856 / RJ 304 which prohibits any practice that has the effect of submitting animals to cruelty. This decision finds the practice referred to as farra do boi to be unconstitutional. (RE 53.53/SC, Judge-Rapporteur Judge MARCO AURÉLIO emphasis mine) DIRECT ACTION FOR THE DECLARATION OF UNCONSTITUTIONALITY. LAW N..366/00 OF THE STATE OF SANTA CATARINA. LAW AUTHORIZING AND REGULATING THE CREATION AND DISPLAY OF BREEDS OF FIGHTING 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. (ADI 2.54/SC, Judge-Rapporteur Eros Grau emphasis mine). UNCONSTITUTIONNALITY. Direct Action. Law nº 7.380/98, of the State of Rio Grande do Norte. Sporting activities involving pure-bred fighting birds. Rinhas or Briga de galo (cockfighting). Regulation. Inadmissibility. Environment. Animals. Subjection to a cruel treatment. Violation of art. 225, º, VII of the FC. Action admitted to proceed before the Court. Legal precedent. The state law that authorizes and regulates practices or sporting activities involving breeds of birds characterized as fighting birds, called rinhas or brigas de galos (cockfighting), is unconstitutional. (ADI 3.776/RN, Judge-Rapporteur CEZAR PELUSO emphasis mine). Before the Constitution was enacted, this very Supreme Court, in opinions going back as far as almost 60 (sixty) years ago, already considered that the brigas de galo (cockfights) should be punished under criminal law for constituting cruelty acts against said birds (i.g. RE 39.52/SP, Judge-Rapporteur HENRIQUE D ÁVILA RHC /SP, Judge-Rapporteur AFRÂNIO COSTA), the Supreme Federal Tribunal recognized that

31 ADI.856 / RJ 305 Cockfighting is not just a sport since it abuses the fighting animals (RHC /SP, Judge-Rapporteur CÂNDIDO MOTA FILHO emphasis mine). The opinion that brigas de galos (cockfighting) constitute acts of animal cruelty, is also present in the legal doctrine (e.g., ALEXANDRE GAETA, Código de Direito Animal, p.60-6, 2003, Madras; DIOMAR ACKEL FILHO, Direito dos Animais, p.84, section n. 8.5, 200, Themis; EDNA CARDOZO DIAS, Inconstitucionalidade e Ilegalidade das Rinhas de Galo, in Fórum de Direito Urbano e Ambiental, p.2.04, year 3, n.8, novdec. 2004, Fórum edition; EDNA CARDOZO DIAS, A Tutela Jurídica dos Animais, p.82-98, section n , 2000, Mandamentos; HELITA BARREIRA CUSTÓDIO, Crueldade Contra Animais e a Proteção Destes como Relevante Questão Juridico-Ambiental e Constitucional, in Revista de Direito Ambiental, p.60-6, section n.2.3, year 2, july-sept. 997), as exposed in the following excerpt from LÍLIA MARIAL VIDAL DE ABREU PINHEIRO CADAVEZ s work ( Crueldade Contra os Animais: Uma Leitura Transdisciplinar à Luz do Sistema Jurídico Brasileiro, in Revista Direito Justiça, vol.34, nº, p.3-5, section n.3.3., jan.-june, edipucrs): This analysis will focus on the brigas de galo (cockfights), given their effects on the social and legal field ( ). There are attempts to legalize

32 ADI.856 / RJ 306 this practice in Brazil, on the grounds that is a practice which is part of a cultural manifestation in several regions and an already existing reality and entrenched in society. In those fights, animals are provoked by humans, who place them in an arena to fight, until one of the two contenders dies. This practice involves acts of cruelty. The birds undergo preparation before the fight: their crest and barbels are cut with no use of anesthesia, and the beak and the spurs are reinforced with stainless steel. The fight only ends when one of the animals die. According to Helita Barreira Custódio, the constitutional principle of cruelty considers animal cruelty any violent display of fights between living beings until exhaustion or death. Similarly, Édis Milaré refers to cockfighting as a cruel practice towards the fauna, where the concept of cruelty matches the idea of subjecting the animal to unnecessary suffering. Our Federal Constitution of 988 prohibits practices that subject animals to cruelty. Such prohibition therefore applies to cockfighting according to Érika Bechara: would anyone dare to claim that cockfights are necessary to the well-being of the community? The Supreme Federal Tribunal itself adopts such position ( ). José Rubens Morato Leite considers that the opinion of the Supreme Federal Tribunal regarding the brigas de galo is a correct interpretation of the constitutional prohibition on animal cruelty, and that such interpretation entails that the ideological integrity of the constitutional text shall not give in to the idea that these cruel practices are legitimately part of a broader cultural heritage in certain communities [ ]. According to Paulo Affonso Leme Machado, activities involving fights of animals are crimes under art. 32 of the Law nº 9.605/98 on Environmental Crimes, as previously mentioned. The brigas de galos are considered cruel practice towards animals. The Regional

33 ADI.856 / RJ 307 Federal Tribunal of the 4 th interpretation, as follows: region offers a similar SUMMARY: Administrative. Environment. Cockfighting. Considering the recent case law of the Supreme Court, defining the briga de galo (cockfighting)as a cruel practice towards animals is lawful. Sport Competition, Animal Cruelty. Prohibition to Organize. Abusive Practice, Prejudice, Fauna. Lawfulness, Sanction, Brazilian Institute of the Environment and Natural Resources (IBAMA). Similarly, the Justice Tribunal of the state of Rio Grande do Sul, in a more recent decision on April th of 2005, declared by a majority of the votes the unconstitutionality of the Law nº 30-0/200 of November 27 th 200 voted by the Municipality of Fazenda Vilanova, allowing the organization of competition and display of fights between exotic breeds of fighting birds, under the license of the IBAMA, with purposes of preservation of such birds species, as follows: SUMMARY: Direct Action of Unconstitutionality. Constitutional. Environmental. Brigas de Galo (Cockfighting). The municipal law allowing the organization of competition and display of fights between exotic breeds of fighting birds is manifestly unconstitutional for violating articles 8º and 3, caput and section V of the State Constitution and art. 22 section I, and 30 section I and II of the Federal Constitution. Firstly, the Union retains exclusive competence over criminal law, and a municipal law cannot decriminalize a conduct defined in art. 32 of the Law on Environmental Crimes. Secondly, Municipalities have a duty to promote the protection of the environment, by banning practices that subject animals to cruelty. The direct action shall proceed. Unanimously. The Rapporteur of the Decision, Judge Maria Berenice Dias, says the Law nº 30-0/200 enacted by the Municipality of Fazenda Vilanova, in authorizing competitions between fighting birds, allows and regulates the subjection of these animals to a cruel treatment,

34 ADI.856 / RJ 308 which the Federal and State Constitutions does not allow. She also reminds the Court that the brigas de galos (cockfights) carry a criminal penalty, under art. 32 of the Law nº9.605/98 (Law on Environmental Crimes). Although this study did not primarily focus on the analysis of the State and Municipal legislation prohibiting animal cruelty, we should also mention the Municipal Law nº9.770 of June 7 th of 2005, prohibiting brigas de galo (cockfighting). Art. º of the law prohibits cock and dog fights in the Municipality of Porto Alegre. We can thus conclude that the brigas de galo are practices considered cruel under our current Federal Constitution. Such practices do not fit into the category of practices necessary to humans, since they subject the animal to a suffering absolutely unnecessary. The recognition of the constitutionality and the legality of such practice amounts to a Constitutional fraud. Such activities solely grounded on cultural or entertainment justifications cannot be allowed. (emphasis mine). I thus consider, Mister President, that the Law nº of 03/20/998 enacted by the State of Rio de Janeiro which is virtually identical to the Santa Catarina Law nº.366/2000, declared unconstitutional by this very same Court in decision ADI 2.54/SC, Judge-Rapporteur EROS GRAU - conflicts with art. 225, º, VII of the Constitution of the Republic prohibiting cruel practices against animals, and as incriminated under Law nº 9.605/98 (art. 32) which makes of mistreatments on animals an environmental crime.

35 ADI.856 / RJ 309 As pointed out by the His Eminence Judge CARLOS VELLOSO s opinion, the protection afforded to animals in the last part of art. 225, º, section VII of the Constitution, covers wildlife as well as domestic and domesticated animals, fighting birds being included in the latter category, the constitutional provision prohibiting all forms of animal cruelty. Mister President, I don t see any reasons to modify this interpretation given its consistency with the established case law of the Supreme Court regarding the meaning of art. 225, º, section VII of the Constitution. In reality, and as established by legal doctrine (e.g., BRUNO AURÉLIO GIACOMINI ROCCO, Algumas Considerações sobre o Convívio entre o Homem e os Animais [Considerations On The Coexistence Between Humans And Animals], in Revista de Direitos Difusos, vol. /.42, section n.5, Feb./2002, Esplanada-ADCOAS; DANIELLE TËTU RODRIGUES, Tutela da Fauna: Reflexões sobre a Tutela Penal Brasileira, in Boltim Informativo Juruá 35, p.3, 6 to 28 Feb./2002; ERIKA BECHARA, A Proteção da Fauna sob a