Lawyer in Brasília for Foreign Nationals
What a foreign national arrested, investigated or sued in Brazil can do in the first hours, which rights apply and what a consulate can and cannot do.
A person arrested in Brazil, whatever the nationality, has the right to remain silent, to be assisted by a lawyer and by family, and to have the arrest reported at once to a judge and to a relative or another person of choice (Federal Constitution, article 5, LXII and LXIII). After an arrest in the act, a judge must hear the person within 24 hours. A foreign national may also ask the police to notify the consulate.
What should I do in the first hours after an arrest?
- Say that you want a lawyer and that you will remain silent until then. Both are constitutional rights (article 5, LXIII).
- Name a person to be told. The police must report the arrest and the place of detention to your family or to a person you choose (Code of Criminal Procedure, article 306).
- Ask for your consulate to be notified. If you ask, the Brazilian authorities must inform the consular post without delay, and they must tell you that you have this right (Vienna Convention on Consular Relations, article 36, paragraph 1, "b").
- Ask for an interpreter. When the person questioned does not speak Portuguese, the questioning is done through an interpreter (Code of Criminal Procedure, article 193).
What is the custody hearing?
It is the first contact with a judge. Within 24 hours of the arrest, the judge holds a hearing with the arrested person, the lawyer or a public defender, and the prosecutor. The judge must then end an unlawful arrest, convert the arrest into pre-trial detention when the legal requirements are met and other measures are not enough, or grant release, with or without bail (Code of Criminal Procedure, article 310).
What can the consulate do, and what can it not do?
Consular officers may visit a detained national, talk and exchange letters with the person, and arrange legal representation. They must refrain from acting if the detained person expressly objects (Vienna Convention, article 36, paragraph 1, "c"). These rights are exercised within the laws of Brazil (article 36, paragraph 2).
The consulate is not the defence. Acting before Brazilian courts is reserved to lawyers registered with the Brazilian Bar (Law 8,906/1994, article 1).
I am under investigation but not arrested. Can I leave Brazil?
A judge may order measures other than detention (Code of Criminal Procedure, articles 319 and 320). One of them is a ban on leaving the country. When a judge orders it, the border authorities are informed and the person is summoned to hand in the passport within 24 hours (article 320).
What if the case goes to a jury?
In Brazil, a jury tries intentional crimes against life, such as murder. The Constitution guarantees a full defence and the secrecy of the vote of the jurors (article 5, XXXVIII).
What if I cannot pay for a lawyer?
The State must provide legal assistance at no charge to people who prove they lack means (Federal Constitution, article 5, LXXIV). When an arrested person does not name a lawyer, a full copy of the arrest record is sent to the Public Defender within 24 hours (Code of Criminal Procedure, article 306, paragraph 1).
Frequently asked questions
Do I have to answer police questions?
No. You have the right to remain silent and to have a lawyer (Federal Constitution, article 5, LXIII).
Will my consulate be told automatically?
Not necessarily. The Vienna Convention requires notification when the detained person asks for it (article 36, paragraph 1, "b").
Can the consulate get me released?
No. It can visit, communicate and help arrange a lawyer. Release is decided by a Brazilian judge.
Can a judge keep my passport?
Yes, when the judge orders a ban on leaving Brazil (Code of Criminal Procedure, article 320).
Does the firm promise a result?
No. Brazilian Bar rules forbid it (OAB Provimento 205/2021).