Understanding State Liability for Damages Caused by Negligent Investigations and Lawsuits – An Analysis of the Brazilian Case in the Light of British and French Experiences

Abstract

General investigations and lawsuits held under Brazilian jurisdiction are considered public records and negligent actions triggered by misuse of power can lead to right violations and cause losses to individuals and companies. In the last decade, the country has been experiencing changes when it comes to corruption. For the first time in history powerful politicians and big companies are being investigated, prosecuted, and sentenced for taking part in schemes for the embezzlement of public funds. This crusade against corruption transformed prosecutors and judges into national heroes and strengthened Judiciary Branch. Although the results tend to develop national public institutions, the means used to achieve it could suggest an unbalance in Brazil’s checks and balances system and misuse of power during investigations and lawsuits. The Brazilian Federal Constitution is clear when saying that the State shall be liable for injuries that any of their agents, acting as such, cause to third parties. Notwithstanding, there is no general precedent in Brazil regarding the attempt to establish state liability on cases in which individuals and companies suffered damages during groundless investigations and negligent lawsuits. By assessing the historical and legal development in the United Kingdom and France, it is possible to understand the evolution of the idea of state liability, shed light on the Brazilian case, and help to analyse whether the existing legal framework in Brazil will be able to present a satisfactory answer for the challenges that shall arise in the next years.