After an intense dictatorial period (1964-1985), Brazil began to undergo a process of democratization. Brazil’s so-called Citizen Constitution was approved in 1988 at the end of the period of repression and military dictatorship. The current Brazilian Constitution defines the Brazilian State as a Democratic State of Law in which political pluralism and citizen participation in public affairs are paramount principles.
Thirty years later, democracy in Brazil is still a work in progress. In the midst of a deep political and economic crisis, the country is also facing various kinds of problems regarding its relationship with civil society. Following the impeachment process of President Dilma Rousseff – considered by many as a parliamentary coup – persecution, restrictions, and violations of rights have become more prevalent against leaders and activists of social movements and civil society organizations.
Efforts to prevent and combat corruption have been on the rise in Brazil. Many members of different political parties have been implicated in anti-corruption investigations in the country. On one hand, the investigations have unveiled corruption practices and the misuse of public funds by politicians, public officials, and business actors in Brazil; on the other hand, the investigations have proved controversial in relation to potential violations of due process rights of those under investigation.
2011-2016: New Legal Framework
During the 2010 presidential election, a coalition of civil society organizations, Plataforma por um novo Marco Regulatório das Organizações da Sociedade Civil, asked presidential candidates to prioritize the development of a new legal framework for CSOs in Brazil. Throughout President Dilma Rousseff’s administration, the General-Secretariat of the Presidency prioritized this agenda and created a team to facilitate political dialogue. Indeed, between 2011 and 2016, a series of dialogues took place, resulting in legal reform to strengthen the role of civil society in Brazil.
The challenges of the legal and funding environment for civil society at that time were clear. As acknowledged by the European Union, while state funding was available to CSOs, there was no national legislation that would, based on clear criteria, guarantee a fully transparent distribution of funding. At the same time, foreign investment and funding for CSOs were dwindling, affecting CSOs working on environmental issues, development, and human rights, who did not want to rely on state funding. This context prompted CSOs to question their role in society, while still being keen to ensure that their status as autonomous organizations would be recognized and strengthened.
To respond to these challenges, CSOs demanded a new regulatory framework that would improve the mechanisms and conditions for partnerships with the state and safeguard their overall role and viability. As a result, the National Congress enacted and President Dilma Rousseff approved a new law regulating the partnership between CSOs and public authorities, Law 13.019/2014, in July 2014. Specifically, Law 13.019 introduced clearer rules for contracting government services and distributing funds to CSOs. This was based on objective criteria and procedures and enhanced practice standards for partnerships that must be followed by all three levels of government in order to ensure more clarity on rules that interfere with the execution of parterships. This therefore increases legal consistency for all actors involved.
Looking Ahead: After the 2018 Election
In October 2018, general elections for the presidency, state governorships, House of Representatives, state legislatures and two-thirds of the Federal Senate took place. The presidential election was characterized by controversy and social protests. The candidate with the best prospect of winning the most votes, Luiz Inácio Lula da Silva, a former President of the Republic, saw his candidacy blocked by Brazilian courts based on the fact that he had been arrested and was responding to legal proceedings. The United Nations Human Rights Committee, however, stated that Brazil should guarantee his right to run for the presidency. However, the Brazilian Supreme Court ruled that the Committee was an administrative body without legal jurisdiction.
In addition to the institutional and legal controversies, social protests and some cases of violence occurred. For example, Jair Bolsonaro, who eventually won the election, was stabbed during the campaign and was hospitalized for several days. During electoral rallies and interviews, Bolsonaro also made troubling statements such as “we are going to put an end to all activism in Brazil” and “there will be no public financing to CSOs.” Moreover, supporters of Bolsonaro made controversial statements regarding gender and ethnicity.
The new legislature is a truly “new one” due to the high turnover rate (almost 50% of the House of Representatives and 75% of the Federal Senate). Newly elected state governors represent 13 different political parties, most of which are supporters of Bolsonaro. Bolsonaro’s vice-president, General Mourão, is a military official, and Bolsonaro is inviting other military officials to be part of his administration.
Bolsonaro’s official government plan is named “Brazil above everything, God above all” and does not mention CSOs specifically. Some have called his government plan economically liberal and socially conservative. The plan refers to the “freedom to people to be able to make effective their political, economic and spiritual individual choices” in a society that “gives a hand to the fallen” and where “nobody will be persecuted” (p. 15). In the plan, Bolsonaro calls himself a defender of the freedom of opinion, information, press, and Internet, as well as of political and religious freedom.
However, the government plan also envisions socially conservative proposals, such as to “reduce the age of criminality to 16 years,” “reformulate the Disarmament Statute,” “recognize as terrorism invasions of rural and urban properties on Brazilian territory,” “rewrite the Constitution to exclude any relativization of private property,” and “redirect human rights policy, prioritizing the defense of victims of violence” (p.32).
The new federal government took office in January 2019. Questions abound about how the new government’s ideology and policies will affect the civic space.
|Organizational Forms||Associations and Foundations.|
|Registration Body||Registro Civil de Pessoa Jurídica (Legal Entity Public Register Office).|
|Barriers to Entry||No significant legal barriers.|
|Barriers to Operations / Activities||Burdensome reporting requirements.|
|Barriers to Speech and/or Advocacy||The country has not been safe for activists in general, especially in the environmental, land dispute issues: Activists and journalists have been murdered for reporting and investigating public interest issues, especially involving public security, environment, and land disputes.|
|Barriers to International Contact||Presence of foreigners curbed in the Amazon region.|
|Barriers to Resources||Disincentives for donations rooted in taxation and bank rules.|
|Barriers to Assembly||Police violence often occurs against demonstrators opposing the government and representing less advantaged social groups.|
|Population||207,353,391 (July 2017 est.)|
|Type of Government||Federative Republic|
|Life Expectancy at Birth||Total population: 74 years (Male: 70.5 years; Female: 77.7 years) (2017 est.)|
|Literacy Rate||Total population: 92.6% (Male: 92.2%; Female: 92.9%) (2015 est.)|
|Religious Groups||Roman Catholic 64.6%, other Catholic 0.4%, Protestant 22.2% (includes Adventist 6.5%, Assembly of God 2.0%, Christian Congregation of Brazil 1.2%, Universal Kingdom of God 1.0%, other Protestant 11.5%), other Christian 0.7%, Spiritist 2.2%, other 1.4%, none 8%, unspecified 0.4% (2010 est.)|
|Ethnic Groups||White 47.7%, brown (mixed white and black) 43.1%, black 7.6%, Asian 1.1%, indigenous 0.4% (2010 est.)|
|GDP per capita||$15,500 (2017 est.)|
Source: CIA World Factbook
|Ranking Body||Rank||Ranking Scale|
(best – worst possible)
|UN Human Development Index||79 (2018)||1 – 182|
|World Bank Rule of Law Index||44 (2018)||100 – 0|
|World Bank Voice & Accountability Index||62 (2018)||100 – 0|
|Transparency International||105 (2018)||1 – 168|
|Freedom House: Freedom in the World||Status: Free|
Political Rights: 2
Civil Liberties: 2 (2018)
|Free/Partly Free/Not Free|
1 – 7
1 – 7
|Foreign Policy: Fragile States Index||106 (2018)||178 – 1|
International and Regional Human Rights Agreements
|Key International Agreements||Ratification*||Year|
|International Covenant on Civil and Political Rights (ICCPR)||Yes||1992|
|Optional Protocol to ICCPR (ICCPR-OP1)||Yes||2009|
|International Covenant on Economic, Social, and Cultural Rights (ICESCR)||Yes||1992|
|Optional Protocol to ICESCR (OP-ICESCR)||No||—|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Yes||1968|
|Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||Yes||1984|
|Optional Protocol to the Convention on the Elimination of Discrimination Against Women||Yes||2002|
|Convention on the Rights of the Child (CRC)||Yes||1990|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)||No||—|
|Convention on the Rights of Persons with Disabilities (CRPD)||Yes||2007|
|American Convention on Human Rights||Yes||1992|
* Category includes ratification, accession, or succession to the treaty
The 1988 Constitution establishes a federal system comprising the Union, States, the Federal District, and Municipalities; divides authority among the legislative, executive and judiciary powers; and establishes Brazil as a representative democracy, where people’s power is exercised by legitimately elected representatives.
In response to the prior period of authoritarianism, the constitutional text expressly recognizes the freedom of peaceful assembly and freedom of association for the realization of lawful purposes (Article 5, XVI and XVII). It also makes clear that the action of armed groups (civil or military) against the constitutional order and the democratic state is a non-bailable and imprescriptible crime (Article 5, XLIV).
Freedom of Association
Article 5 (XVII, XVIII, XIX, XX, XXI) ensures the right to freedom of association:
XVII – freedom of association for lawful purposes is fully guaranteed, any paramilitary association being forbidden;
XVIII – the creation of associations and, under the terms of the law, that of cooperatives is not subject to authorization, and State interference in their operation is forbidden;
XIX – associations may only be compulsorily dissolved or have their activities suspended by a judicial decision, and a final and un-appealable decision is required in the first case;
XX – no one shall be compelled to become associated or to remain associated;
XXI – when expressly authorized, associations shall have the legitimacy to represent their members either judicially or extra-judicially.
Freedom of Assembly
Article 5 (XVI) ensures the right to freedom of assembly regardless of authorization:
XVI – everyone may meet peacefully, without arms, in places open to the public, regardless of authorization, as long as they do not frustrate another meeting previously called to the same place, subject only to prior notice to the competent authority.
Freedom of Expression
Article 5 (IV, V, IX, XIII, XIV) also protects freedom of expression broadly:
IV – the manifestation of thought is free and anonymity is forbidden;
V – the right of response is ensured, proportional to the grievance, in addition to compensation for material, moral or image damage;
IX – the expression of intellectual, artistic, scientific and communication activity, regardless of censorship or license, is free;
XIII – the exercise of any job, occupation or profession is free, accomplished the professional qualifications established by law;
XIV – access to information is ensured to everyone and the confidentiality of the source is safeguarded, whenever necessary for professional practice.
Articles 220-224 of the Constitution, covering social communication, guarantee that “manifestation of thought, creation, expression and information, in any form, process or mean shall not be subject to any restriction” and prohibit “every and all censorship of a political, ideological and artistic nature.”
The Constitution prohibits the imposition of taxes on assets, income, or services (related to the essential purposes) of political parties, including their foundations, workers’ trade unions, and not-for-profit education and social assistance organizations (Article 150, VI, c). However, this immunity is subject to the requirements set forth in the tax legislation. In addition, constitutional immunity is granted to social assistance charities regarding the payment of social security contributions (Article 195, §7).
Trade union freedom is also constitutionally guaranteed. State authorization is not required to establish trade unions, and any interference or intervention by the government in union organizations is prohibited. Similarly, all workers, including those in rural areas and in fishermen’s colonies, have the right to decide whether or not to join the representative bodies (Article 8, V and Sole §). Striking is recognized as a social right itself and as a guarantee or tool for protecting and promoting other guaranteed social rights (Article 9).
In order to ensure freedom of conscience and belief as fundamental rights and to enable the work of religious organizations, the Constitution ensures the free exercise of religious services and provides protection for places of worship and liturgies (Article 5, VI). It also expressly prohibits the imposition of taxes on temples of any religion (Article 150, VI, b), ensures the provision of religious assistance to civilian and military entities of collective detention (Article 5, VII), and makes clear that no one will be deprived of rights because of religious beliefs or philosophical or political convictions (Article 5, VIII).
The Constitution recognizes the legitimacy of indigenous communities and their organizations to enter a court in defense of their rights and interests, except when the intervention of the Public Prosecutor is required in all acts of the process (Article 232). Despite the constitutional text, in practice, indigenous organizations have had great difficulty in gaining recognition and access to justice. The demarcation of their lands and protection of their traditional knowledge, among others, are important topics in this regard.
Participation in Policy-making
The Constitution ensures the participation of CSOs in the formulation and implementation of policies, such as the participation of civil society in areas such as social assistance (Article 199), health, education (Article 205), culture (Article 216), environment defense (Article 225), and children and adolescents (Article 227).
Relation to International Law
Regarding the interaction with international human rights law, the 1988 Constitution recognizes that Brazil submits to the jurisdiction of the International Criminal Court to which it is a state party (Article 5, §4). In addition, it grants constitutional status to international human rights treaties adopted through approval in each of the Houses of the National Congress in two shifts, by 3/5 of the votes of the respective members (Article 5, §3, included by Constitutional Amendment 45/04).
The International Covenant on Civil and Political Rights (enacted in Brazil through Decree n. 592/1992) and Article 23 of the American Convention on Human Rights (enacted in Brazil through Decree n. 678/1992) recognize the rights of direct and indirect political participation. Under Article 5, §2 of the Federal Constitution, these are also recognized as fundamental rights.
National Laws and Regulations Affecting Sector
Relevant national-level laws and regulations affecting civil society include:
- Brazilian Federal Constitution (Articles 5(XVII-XXI), 150(VI)(c), and para. 4)
- Law on Partnerships between the Public Administration and Civil Society Organizations: Law 13.019 of July 31, 2014 (English);
- Provisional Measure 658 of October 29, 2014 Law 13.204 of December 14, 2015;
- Decree 8.726, of April, 27, 2016
- Tax Code: Law 5.172 of October 25, 1966 (Articles 9, 14, and 111)
- Civil Code: Law 10.406 of January 10, 2002 (Title II, Chapter II-III) , as amended by Law 13.151 of July 28, 2015
- Legislation on Public Interest Civil Society Organizations: Law 9.790 of March 23, 1999; Decree 3.100 of June 30, 1999 (English)
- Legislation on Social Organizations: Law 9.637 of May 15, 1998; Decree 5.396 of March 21, 1995
- Legislation on Certified Social Assistance Entities: Law 12.101 of November 27, 2009, Decree 8.242 of May 23, 2014
- Law on Public Registries: Law 6.015 of December 31, 1973 (Title III, Chapter II, Articles 114-126)
- Law on Volunteerism: Law 9.608 of February 18, 1998
- Law on Crimes Resulting from Racial Prejudice: Law 9.459 of May 13, 1997, modifying Law 7.716 of January 5, 1989
- Law on Supporting People with Disabilities and their Social Integration: Law 7.853 of October 24, 1989
- Legislation on Tax Incentives for Cultural Projects: Law 8.313 of December 23, 1991; Decree 5.761 of April 27, 2006
- Legislation on Tax Incentives for Sports Projects: Law 11.438 of December 29, 2006; Decree 6.180 of August 3, 2007
- Legislation on Tax Incentives for Child Protection Projects: Law 8.069 of July 13, 1990 (English)
- Legislation on Tax Incentives for Elderly Protection Projects: Law 12.213 of January 20, 2010
- Legislation on Tax Incentives for Oncology and People with Disabilities Health Care Projects: Law 12.715 of September 17, 2012; Decree 7.988 of April 17, 2013
- Legislation on Conditions for Tax Exemptions: Law 9.532 of December 10, 1997 as amended by Law 13.151 of July 28, 2015
- Legislation on Tax Deduction: Law 9.249 of December 26, 1995
- Provisional Measure (“Medida Provisóra”) 2.158-35 of August 24, 2001 (Article 59); Law 9.249 of December 26, 1995 (Article 13, §2, III)
- Decree 6.170 of July 25, 2007; Ministerial Ordinance 507 of November 24, 2011
- Law on the Remuneration of Civil Society Organization Officers: Law 12.868 of October 15 2013
- Law providing amendments to the Civil Code regarding the purposes of foundations, and amendments to the tax law allowing for charitable associations and foundations to remunerate officers: Law 13.151 of July 28, 2015
- Law on Crimes Resulting from Money Laundry: Law 9.613 of March 13, 1998
- Law on Access to Information: Law 12.527 of November, 18. 2011
- Law on Anti-Corruption: Law 12.846 of August 1, 2013
- Law on Anti-Terrorism: Law 13.260 of March 16, 2016
- Decree of the “Law and Order” that authorizes the use of the Armed Forces in the State of Rio de Janeiro: Decree of July, 28, 2017
- Decree of Federal Intervention, that approves the federal intervention of a military nature in the state of Rio de Janeiro: Decree 2,988, of February 16, 2018
- Social Participation Policy of May 23, 2014
- Brazilian General Data Protection Law of August 14, 2018
- Federal Decree nº 9.588/2018 creating the Union Grants Monitoring and Evaluation Committee, whose purpose is to continuously monitor and evaluate public policies funded with union subsidies regarding their fiscal and economic impact. (CSO’s tax incentives are listed in the Decree. It is important due to the context of fiscal adjustments and the reduction of fiscal benefits, which may also affect CSOs in Brazil.)
- Law nº 13.800/2019, regulating the creation of “endowments” to support CSOs aimed at causes of public interest in the areas of education, science, technology, research and innovation, culture, health, environment, social assistance, sports, public safety, human rights and other public interest purposes.
- Law nº 13.810/2019, providing for enforcement of sanctions imposed by the United Nations Security Council in Brazil and freezing of assets of people investigated for terrorism.
- Decree nº 9.759/2019, elminating after June 28, 2019 various federal government collegiate bodies, such as committees; commissions; forums; boards, counsel that were created by federal decrees or any other acts of the Executive Branch. It also revoked the Brazilian National Policy for Social Participation created during Dilma Rousseffs’ Presidency.
Pending NGO Legislative / Regulatory Initiatives
1. President Bolsonaro’s Inauguration Day Decree affecting NGOs
Immediately after he was sworn into office on January 1, 2019, Brazilian President Jair Bolsonaro imposed sweeping changes on the structure of the Executive Branch, including a new body to provide government oversight of domestic and international NGOs. Provisional Measure No. 870 establishes that the Secretariat of Government has the authority to “supervise, coordinate, monitor and accompany the activities and actions of international organizations and non-governmental organizations on national territory” (Art. 5.II). This single sentence, filled with vague terms, has raised significant concerns within Brazil’s NGO community, particularly given Bolsonaro’s public record questioning the legitimacy of the NGO sector. The Provisional Measure entered into force immediately and will expire if not ratified by Congress within 120 days. As of July 2019, Congress was still voting on ratification.
The Association of Brazilian NGOs (ABONG) has issued a public statement promising to challenge Article 5.II through administrative channels and calling for reforms through multi-sector dialogue. ABONG asserts that the provision is unconstitutional: “It is not the responsibility of the Federal Government or the state or municipal governments to supervise, coordinate or even monitor the actions of civil society organizations, who are guaranteed, under Article 5 of the Federal Constitution, the full freedom to act and to represent their causes and interests. It is the responsibility of governments to control public resources that may be the subject of partnerships with civil society organizations, and for this, there is specific legislation that defines [NGOs’] rights and obligations, including submission of annual accountability reports.”
Aline Gonçalves de Souza, researcher with the Getulio Vargas Foundation, also questions whether the Provisional Measure’s restructured CSO oversight will pass constitutional muster: “The Federal Constitution guarantees freedom of association and prohibits state interference in the functioning of associations [referencing Articles 5.XVII – XVIII].”
In addition to these constitutional issues, Article 5.II of the Provisional Measure raises concerns under international law. The Inter-American Commission on Human Rights has stated that “any restriction on the right to freedom of association is permissible only if prescribed by law (through an act of Parliament or an equivalent unwritten norm of common law) and is not permissible if introduced through government decrees or other similar administrative orders” (¶ 165).
Accordingly, imposing restrictions on the freedom of association specifically pursuant to Article 5.II would raise issues under international law because the Provisional Measure was an act of the President without legislative approval. The IACHR also reminds States to “refrain from promoting laws and policies that use vague, imprecise, and broad definitions” to restrict the freedom of association (¶ 165). Article 5.II confers authority on the Secretariat of Government to “supervise, coordinate, monitor and accompany the activities and actions” of NGOs and international organizations, without detailing the scope of this authority. As proposed by ABONG, multi-sector dialogue would be a positive approach to determining the appropriate method of governing NGOs in a manner consistent with the Brazilian Constitution and international law on freedom of association.
2. Initiatives to Enhance Financial Sustainability of CSOs
There are several initiatives that CSOs have proposed to enhance the financial sustainability of CSOs. Notably, the European Union supports a project entitled “CSO Economic Sustainability”, which is being implemented by Grupo de Institutos, Fundações e Empresas, Fundação Getúlio Vargas, and Instituto de Pesquisas Econômicas Aplicadas. They aim to develop studies and proposals to improve the legal and fiscal environment for CSOs.
The following regulatory initiatives are pending:
a) Tax benefit for individual donors: Until 1995, individuals and corporations were both allowed to deduct their grants and gifts to CSOs from their taxable income up to a certain limit. In 1995, new laws were introduced that limited the availability of tax deductions only to large corporations and solely for funds granted to CSOs with public benefit status. While the tax law subsequently expanded the available recipients of tax-deductible donations, only large corporations may currently claim tax deductions for such contributions. Restrictions imposed on grantors therefore leave small and medium size companies and individuals without tax incentives for donations to civil society. To respond to this gap, Congressman Paul Teixeira introduced a draft bill in 2015 to provide tax incentives for donations by individuals; the draft bill was not, however, approved by the Chamber of Deputies.
In 2017, the bill was moved to the Senate House, where it was being discussed with a law focusing on endowment funds (PL 4643/2012). The bill has since received a new number (PLC 158/2017) and is still in the Senate House without change. Due to the recent approval of Law 13.800/2019 regulating endowment funds, there are no specific indications that the status of PLC 158/2017 will change. However, since the adoption of PLC 158/2017 would change part of Law 13.800/2019, it is worth continuing to monitor it.
b) Tax exemption for donation (“ITCMD”): Grants are taxable at the state level by the ITCMD tax at an average rate of 4% (the tax starts at 2% and may reach 8% in certain states). The tax is payable by grantees upon receipt of the grant, whether in cash or in kind; it is payable to the state of residence of the grantor, except in the case of grants in properties, when the tax is due to the state where the property is located. A Senate resolution to limit the tax rates on donations at the state level was proposed but remains unsettled. The main idea is to increase the flow of private resources to civil society. An alternative approach would be to adopt a national law that would address the issue with consistency across the entire country.
c) Endowments: Provisional Measure 851/2018 regulates the creation of endowments for the promotion of public interest causes in the areas of education, science, technology, research and innovation, culture, health, environment, social assistance, and sports. The measure would therefore have an impact on CSOs. Designed to be used in cases of urgency, and adopted by the President of the Republic, Provisional Measures are valid for 60 days and renewable for the same period of time. They are also enforceable as laws but require the approval of the National Congress to become a law. As of December 2018, a new text of the Provisional Measures is being voted on in the National Congress.
3. Supreme Court case on the scope of Article 5, paragraph XVI, of the Federal Constitution
April 2018 the Supreme Court began the trial of the case of RE 806339, which concerns the scope of Article 5, paragraph XVI, of the Federal Constitution, which states that “everyone can meet peacefully, unarmed, in places open to the public, irrespective of authorization, as long as they do not frustrate another meeting previously called to the same place, only requiring prior notice to the competent authority.”
4. Regulations on Lobbying
PL 1202/2007 (Lobby Regulation) is a draft law to regulate lobbying in Brazil and has been on the federal legislative agenda but as of August 2019 it has not been voted on by the Plenary of the House of Representatives. It has, however, been fast-tracked through an emergency process that allows bills for matters of relevant and unavoidable national interest to be automatically included in the agenda for discussion and immediate voting, even when the voting session in which the bill is being presented has already begun. If this regulation is eventually approved, it will be sent to the Senate. For some organizations and specialists, the text that will be voted on is no longer able to guarantee enabling provisions on important issues.
We are unaware of any other pending legislative/regulatory initiatives affecting NGOs. Please help keep us informed; if you are aware of pending initiatives, write to ICNL at email@example.com.
The Civil Code of Brazil recognizes two primary forms of civil society organizations: associations and foundations.
An association is a not-for-profit membership organization created by at least two individuals and/or legal entities seeking to achieve a particular goal. Associations may pursue all kinds of not-for-profit purposes that are considered lawful under Brazilian legislation.
A foundation is an organization established through an endowment dedicated to a public interest cause, with not-for-profit aims. It can be either public or private. Public foundations are formed by the government and must be created by law. Private foundations can be established by legal entities (including foundations) and/or individuals, either living or through the disposition of a will. By definition, foundations must serve public benefit or public interest purposes, as defined in the Civil Code, including “social assistance; culture; education; health; nutritional security; defense, preservation and conservation of the environment and promotion of sustainable development; scientific research; promotion of ethics, citizenship, democracy and human rights; and religious activities” (Civil Code, Article 62).
According to Law 13.019/2014, which governs partnership relations between civil society and the government, CSOs include (a) not-for-profit, private entities that do not distribute any results, remains, operational, gross or net surplus, dividends, waivers of any nature, shares, or portions of their assets earned through the exercise of their activities and that implement them in full pursuit of their corporate purpose, directly or through the establishment of an endowment or reserve fund among shareholders or partners, directors, officers, employees, donors, or third parties; (b) cooperative societies under Law No. 9.867 of November 10, 1999 addressing people at risk or subject to personal or social vulnerability, the poor and unemployed, and rural laborers through development, education, and training, among others; and (c) religious organizations that engage in activities or projects that are in the public interest and of a social nature that is distinct from those aimed at exclusively religious purposes. Associations and foundations fall into the first of these categories.
Public Benefit Status
Recognition as a CSO under Law 13.019/2014 provides private, not-for-profit legal entities a public benefit status. The Cadastro Nacional de Pessoa Jurídica (CNPJ), the document listing organizations enrolled with the Federal Revenue Office, indicates the kind of public benefit activities to which each CSO is dedicated.
In addition, CSOs can be eligible to obtain one or more government designations of public recognition (federal, state, and local) that grant tax and other benefits to the entity or its funders/donors. The following designations are the most relevant ones at the federal level:
- Public Interest Civil Society Organization (OSCIP): This designation is granted by the Ministry of Justice pursuant to Law 9790/1999. To be eligible, the entity cannot have public employees and/or officials in its governing bodies, and it must comply with certain restrictive rules regarding transparency, accountability, and conflict of interest.
- Social Organization (OS): The OS designation is currently very restrictive, as it is granted on a discretionary basis by the federal government on the advice of the Ministry in charge of the field of activity of the concerned CSO, pursuant to Law 9637/1998. To be eligible, the entity must have public officials in its governing bodies.
- Certified Beneficent Social Assistance Entity (CEBAS): To be exempt from required payments of certain fringe benefits and social security taxes, CSOs must obtain the Social Assistance Beneficent Certification (CEBAS). The CEBAS is granted to CSOs with activities in the fields of health, education, or social assistance by the Ministry in charge of the corresponding field.
Barriers to Entry
Brazilian law does not prohibit the formation and operation of unregistered groups. Groups are free to exist and operate without legal personality. There are, however, benefits to legal personality; for example, legal personality is necessary to enter into relationships with third parties or possess assets.
Associations and foundations acquire legal personality by registering articles of incorporation and statutes with a notary in charge of the legal entity public register office (Registro Civil de Pessoa Jurídica), along with paying a fee. There is no need to obtain prior authorization or certification from a government body. After acquiring legal personality, the association or foundation must register with the Department of Federal Revenue.
In the case of foundations, the founder (Instituidor) must first submit to the District Attorney’s Office (Ministério Público) the draft deed of incorporation (escritura pública de constituição), statutes, and information about the endowment, which is mandatory for the creation of a foundation in Brazil. Upon approval, the documents shall be registered as described above. The Civil Code mandates the Districts Attorney´s Office be responsible for foundations, which are created by individuals for a public interest cause. The District Attorney’s Office must ensure that the person’s cause is accomplished. Therefore, although this can be considered a type of “authorization”, the role of the District Attorney’s Office is limited by the law and must be limited to the protection of assets.
Previously, the Foreigner Statute (Law 6,815 of August 19, 1980) prohibited foreigners with temporary residence from participating in the management and administration of trade unions, professional associations, and professional regulatory bodies, such as the Brazilian Bar Association or the Federal Council of Medicine. The Foreigner Statute also provided that when foreigners make up more than half of the membership, the association is subject to prior approval by the Ministry of Justice. In May 2017, however, the Foreigner Statute was revoked and replaced by the Law of Migration (Law 13.445/2017). Developed with the broad participation of civil society, the Law of Migration introduced new protections into the Brazilian legal order in accordance with international human rights standards, thus guaranteeing rights in a context where xenophobia is gaining momentum internationally.
The new Migration Law contains principles such as non-discrimination and equality of rights of immigrant and national workers, extending the equality of civil and political rights between Brazilians and foreigners through the express revocation of the Foreigner Statute’s restrictive rules, since they were incompatible with the universal right of association. The new law also replaced the concept of “foreigner” with “immigrant” to cover those persons categorized as stateless or refugees, reaffirming on equal terms the possibility of exercising their civil and political rights.
Barriers to Operational Activity
The Civil Code allows associations to pursue all kind of activities, provided they are lawful. Only para-military or unlawful activities are specifically prohibited. Associations are also free to arrange their internal self-governance as they choose; there is no need for government approval or involvement in the designation of board members or conduct of internal meetings.
Associations are protected against termination and dissolution on arbitrary grounds, as guaranteed in Article 5, section XIX of the Constitution: “associations may only be compulsorily dissolved or have their activities suspended by a judicial decision, and a final and un-appealable decision is required in the first case.”
However, there are several practical barriers that impede the institutional development of CSOs in Brazil. Government harassment of CSOs is generally linked to questions of access to public funding and tax exemptions and is being called “bureaucratic criminalization.” For example, all organizations are subject to burdensome reporting requirements to prove their not-for-profit status in administrative or judicial procedures relating to tax exemptions, as described in the Barriers to Resources section below.
Moreover, CSOs have also been targeted by the current Bolsanaro government that links them to criminality. For example, in January 2019, the Minister of Environment, Ricardo Salles, suspended for 90 days the implementation of partnerships entered into between CSOs and the government administration. CSOs were also summoned to present accountability and activities reports to be analyzed. Two days later, a new announcement was made in order to clarify that only agreements in progress were going to be suspended. In July 2019, during the fires in the Amazon region, public declarations were made, such as “environment ‘xiitas’ [referring to the international environmental organizations] are preventing the growth of business in ecologic reserves” and “farmers could be responsible for the fires in Amazonia, everyone is a suspect.” Furthermore, “the major suspicion is that the fires comes from CSOs” is what President Bolsonaro said. This encouraged speech that criminalizes CSOs and their practices. Also, members of an internationally well-known CSO were called “ecoterrorists” by the Minister of Environment, who also implied their liability for an oil leak in the northeastern part of the country.
Lastly, social participation was also targeted by the current government when in April 2019, President Bolsonaro issued Decree No. 9,759/2019, ordering the extinction of Counsels, Committees, Commissions, Groups and other collegiate bodies connected to the Federal Public Administration created by Decree or by another normative act. The justification behind the Decree was to save funds by dissolving inoperative and inefficient bodies. Based on the Decree, approximately 700 collegiate bodies were at risk of being cancelled, such as the National Council on the Rights of Persons with Disabilities, the Council on Public Transparency and Fight Against Corruption, the Nacional Commission for the Eradication of Slave Labour, and the Management Committee of the Internet in Brazil and the National Council on Human Trafficking. Claiming that the Decree harmed the democratic principle of popular participation and that federal councils could only be extinguished by a law approved by the National Congress, the Workers Party (Partido dos Trabalhadores, in Portuguese – PT) filed before the Federal Supreme Court (STF) an Unconstitutionality Direct Action. In June 2019, the STF ordered a preliminary suspension of the Decree to prevent Federal Administration Counsels created by Law from being extinguished. There were divergent opinions in the Court. Some were in favor of suspending the implementation of the Decree for all councils and some believed that the restrictions should only apply to bodies created by decree or normative act. This latter understanding prevailed in a Supreme Court decision. As a direct consequence, important commissions, such as the Nacional Commission for the Eradication of Slave Labour and the Commission against Sexual Exploitation of Children and Adolescents, were not maintained.
Barriers to Speech / Advocacy
The Brazilian Constitution protects the freedom of expression broadly, in Article 5, sections IV, V, IX, XIII and XIV, as following:
IV – the manifestation of thought is free and anonymity is forbidden;
V – the right of response is ensured, proportional to the grievance, in addition to compensation for material, moral or image damage;
IX – the expression of intellectual, artistic, scientific and communication activity, regardless of censorship or license, is free;
XIII – the exercise of any job, occupation or profession is free, accomplished the professional qualifications established by law;
XIV – it is ensured to everyone access to information and safeguarded the confidentiality of the source, whenever necessary for professional practice.
There are no legal restrictions on the ability of individuals or CSOs to criticize the government or to advocate for unpopular causes, including human rights and democracy issues. At the same time, however, there are no incentives and almost no protection for those performing these activities. Studies from independent CSOs point out that Brazil is one of the most dangerous countries for those who exercise freedom of expression as a regular activity. Journalists have been murdered for reporting and investigating public interest issues; between 2012 and 2017, the international CSO Article 19 counted 177 cases of serious violations against communicators in Brazil, including homicides, murder attempts, death threats, and kidnapping.
For example, in March 2018, Marielle Franco, a city councilwoman of Rio de Janeiro, human rights activist, and member of the leftwing party PSOL, was assassinated while returning from an event on empowering young black women. Franco had often pointed out that social inequalities and aggressive police culture were the roots of the violence afflicting Rio de Janeiro. The investigations of the case are still not concluded. In addition, 23 protesters who participated in the 2013 protests in several Brazilian cities about issues such as high corruption in government and police brutality were convicted and sentenced to seven years in prison for crimes such as being part of a criminal association, causing damage, and engaging in resistance.
Crimes against activists are committed with impunity: investigations are superficial, perpetrators are rarely identified, and there is limited accountability, especially when the suspects are state agents. The influence of local power on the investigation process often prevents these cases from being properly investigated and perpetrators from being brought to justice.
The law does not expressly prohibit political or legislative advocacy activities by associations or foundations. These organizations may freely support candidates for public office, for instance, and advocate for or against legislation. The only explicit limitation on political activities applies to public interest CSOs, which may not take part in political campaigns under any circumstances or support political parties or politicians in any way (Law 9.790/99, Article 16). These restrictions cover political party activities and the nomination of candidates for parliamentary and local government elections at the county level. In addition, tax law stipulates that only donations to CSOs that do not have political party activities are tax deductible (Law 13,019/2014, Article 84-C).
Lobbying activities are not directly regulated in Brazil. Brazilian law generally imposes no restrictions on the ability of CSOs to engage in legislative lobbying or political activities. The Brazilian Election Law (Law 9,504, of September 30, 1997) prohibits foreign entities and not-for-profit organizations that receive funds from foreign or governmental sources from donating money to political campaigns. Similarly, a domestic not-for-profit organization that was declared as a public benefit entity or has obtained the qualification of a public benefit civil society organization (OSCIP) cannot donate to political campaigns.
It is noteworthy that other legal entities, including for-profit companies that have international capital, were still able to donate to candidates under the 1997 Brazilian Election Law. However, after a Supreme Court decision on September 17, 2015 (ADI 4650) regarding the analysis of the electoral legislation, all legal entities were prohibited from donating to electoral campaigns. Subsequently, Law 13,165 of September 29, 2015 was enacted, specifying that only individuals can make donations to candidates during the electoral process.
Brazil’s Digital Bill of Rights, approved in 2014, is considered to be on the leading edge of digital rights protection. A relevant concern is the dissemination of “fake news,” especially in the electoral context, as there will be elections for President, governors and state and federal deputies in Brazil in October 2018. There is a national discussion and draft legislation relating to this topic under discussion. Civil society actors supportive of the freedom of internet access are seeking to ensure that any regulation establishes a fair price and broad access to users of both fixed and mobile broadband internet services.
Furthermore, in both their production and programming, radio and television stations prioritize educational, artistic, cultural, and informational programs. Ownership of media outlets (newspaper, radio, and television companies) is limited to native Brazilians or those naturalized for at least 10 years and to legal entities established under Brazilian law, with headquarters in the country and at least 70% of the voting capital comprised by native Brazilians or those naturalized for at least 10 years.
Lastly, Brazil’s Judiciary Branch has taken arbitrary measures against social activists, undermining the public perception of social movements and encouraging their criminalization. The imprisonment of Preta Ferreira, a singer, cultural producer, and activist of the Roofless Movement, is an example. She was arrested in June 2019 without concrete grounds and remained for 109 days in prison. She was released last October 2019 due to an habeas corpus petition.
Barriers to International Contact
There are no restrictions in Brazil on international contact or cooperation. Brazilian legislation does not impose any restrictions on the ability of CSOs to contact or cooperate with colleagues in civil society, business, and government sectors, either within or outside the country. Neither the law nor the government impose any restrictions on participating in networks or on accessing the internet.
However, in 2010 a Senate investigation concluded that it was necessary to curb the presence of foreigners in the Amazon region, recommending that all their activities, even when carried out through CSOs, be submitted to the Ministry of Defense. Therefore, in 2016, Bill Project No. 4,953/2016 was presented in the House of Representatives. The project was aimed at establishing greater control over activities performed by foreign CSOs, especially those acting in the Amazon region. The Bill Project requires CSOs to annually declare their resources received from abroad or from entities or governments in foreign currency. It was submitted to the Committee on Labor, Administration and Public Service (CTASP) of the House of Representatives in March 2019 and returned without anything happening. Regardless, the presence of foreigners in the Amazon region is a sensitive issue for Brazilians.
Although there are no specific restrictions that prohibit the receipt of international resources by organizations established in Brazil, there are disincentives in place; please see the Barriers to Resources section below.
Barriers to Resources
There are no legal prohibitions against the receipt of international or domestic resources by organizations established in Brazil.
There are disincentives to donating to CSOs in taxation and bank rules:
- Brazil has specific state-level legislation that imposes a 4% tax on donations, whether the source of the donation is foreign or domestic.
- Not-for-profit organizations are having increasing difficulty opening bank accounts, obtaining credit, and developing financial relations, as banks have come to view not-for-profit organizations less favorably than other legal entities.
- Bank rules introduced in 2018 impose new requirements for the issue of a specific bill commonly used in Brazil by individual and corporate entities to donate to not-for-profit organizations, which will hinder donations.
Income from Economic Activities
The Civil Code defines associations as entities organized for non-economic purposes, which means that these organizations may pursue economic activities but may not have economic goals. Thus, associations and not-for-profit organizations in Brazil may generally pursue economic activities, invest in the stock market, participate in mergers and acquisitions, and acquire control of companies.
There are, however, relevant restrictions. First, economic activities cannot constitute the primary purpose of the organization. Second, no profits or income of any kind may be distributed to employees, directors, managers, collaborators, or members under any circumstances; instead, any surplus must be used to carry out the organization’s mission. Third, the revenues resulting from economic activities must be fully applied in Brazil to fulfill the organization’s purposes (Tax Code, Article 14(II)). An organization’s by-laws may impose additional restrictions on its economic activities.
Tax benefits in Brazil depend on the nature of the not-for-profit organization’s activities rather than the nature of the organization itself. In other words, the legal form of a not-for-profit is irrelevant in determining its tax benefits.
Article 150(VI)(c) of the Brazilian Constitution stipulates that the federal government, states, federal district, and cities are not allowed to tax private, not-for-profit legal entities engaged in education and social assistance. This tax exemption applies only to those assets, income, and services related to the essential activities of the entity. In addition, Article 150(VI)(c) provides that complementary laws may specify criteria that educational and social assistance organizations must satisfy in order to obtain the tax benefit.
Article 14 of the National Tax Code stipulates that to obtain tax exemption, CSOs shall:
- Not distribute its assets or profits among its members;
- Keep accounting books in order to promote transparency of its activities and accounts; and
- Limit the use of its resources to the Brazilian territory and to maintaining and developing its aims.
Other laws impose additional conditions for CSOs to be eligible for tax exemption:
- Invest all its funds in the maintenance and development of its objectives;
- Keep full records of income and expenses using proper accounting procedures;
- Keep records for at least five years to demonstrate the origin of revenues, the nature of expenses, and any other acts and transactions that may change its net worth;
- Submit income tax statements to the Federal Revenue Office annually;
- Ensure that in case of merger, acquisition, liquidation, or dissolution, its assets are transferred to another similar organization that is also eligible for exemption; and
- Comply with additional requirements set out in statutes related to the operation of tax-exempt organizations.
Provided that the foregoing requirements are met, the educational or social assistance entity needs merely to declare that it is eligible for the exemption before the Revenue Service Authorities (“Receita Federal”).
Barriers to Assembly
Article 5 of the Constitution enshrines the individual right to the freedom of assembly:
XVI – everyone may meet peacefully, without arms, in places open to the public, regardless of authorization, as long as they do not frustrate another meeting previously called to the same place, being only required prior notice to the competent authority.
Articles 220-224 of the Constitution guarantee that “manifestation of thought, creation, expression and information, in any form, process or means shall not be subject to any restriction” and prohibit “every and all censorship of a political, ideological and artistic nature.”
Under Brazilian legislation there are no restrictions relating to public meetings, demonstrations, parades, and protests, which are only subject to an advance notification requirement. The justification for advance notification is to avoid two meetings at the same place, as one meeting could frustrate the other, and to guarantee other constitutionally important freedoms and rights, such as the right to freedom of movement and to public safety, which includes both the safety of the demonstrators and of the general population. Advance notification is not a request for authorization, since the exercise of the right does not depend upon the consent of public authorities. In general, local procedural norms regarding such rights are reasonable and do not impose obligations on organizers or participants that may undermine the exercise of the right.
Excessive Force and Enforcement
In February 2018, the Federal Government decreed and the National Congress approved a federal military intervention in the security forces of the state of Rio de Janeiro (Decree 2,988, of February 16, 2018), in order to deal with escalating crime rates and large areas of the territory controlled by drug lords and militias. This measure is the latest in a series of violations to the constitutional order already perpetrated in the country, and more specifically in the field of public security in the State of Rio de Janeiro. Military operations of “Law and Order Guarantee” (Decree of July, 28, 2017) executed by the armed forces cause degradation of the civilian environment of the occupied areas and are excessively expensive. These operations focus on poor communities, controlled by drug lords and militias, where the population is predominantly black.
Police violence often occurs against demonstrators opposing the government and representing less advantaged social groups, notably black and poor communities. This dynamic came into focus during popular demonstrations in 2013. While the demonstrations were initially against the increase of bus fares in the city of São Paulo, after violent repression by the Military Police of the State of São Paulo, the protests grew, gained strength, and incorporated other agendas concerning the guarantee of freedoms and social rights.
As a result, there has been a significant increase in bills attempting to criminalize protests. In 2013, Law 6,528/2013 was appro