How the Anti-Crime Package could legalise the death penalty in Brazil
Find out about the impacts of ‘authorisation of otherwise illegal activity’ set out in Sérgio Moro’s proposal
Brasilia DF 02 07 2019 - Sergio Moro, Minister for Justice and Public Security makes an announcement during a hearing at the CCJ of the Chamber. The site, The Intercept published alleged messages exchanged by the former judge and prosecutors. Photo Lula Marques.
On 4 February of this year, the Minister for Justice and Public Security, Sérgio Moro, sent a broad set of measures aimed at fighting crime, to Congress. This is informally known as the ‘Anti-Crime Package’.
Although this name suggests prevention of illegal acts, the proposal does not contain improvements in investigations and focuses on harsher sentencing and on reducing the rights of people already imprisoned, such as restricting the progression system. This is a scheme whereby a prisoner who has served enough of his/her sentence can be transferred to a less restrictive regime (semi-open) or an open one, and can slowly return to society.
Social movements and civil society organisations have been pushing for the bill of law to be desiccated as it passes through special working groups created in the Chamber of Deputies to discuss the matter.
Parliamentarians, however, have resisted numerous calls to remove the measure, that public security experts consider to be the most problematic, from the text – a broadening in the scope of ‘authorisation of otherwise illegal activity’, particularly for legitimate self-defence.
The following is civil society organisations’ analysis of the proposal:
AJUFE (Association of Federal Judges in Brazil)
“We do not agree with the use of expressions such as ‘fear’, ‘surprise’ and ‘strong emotion’ to allow a judge to reduce a sentence or even to not pass a sentence. This is a proposed addition to paragraph 2 in article 23 of the Penal Code.”
(…)
“Although the proposal is intended to bolster assumptions for violent death, especially in the work of visible policing, it is worth noting that the expression “strong emotion” embraces hatred, rage, passion, sadness and hurt, emotions that cannot be accepted as a reason for using excessive force in self-defence. These emotions can of course be taken into account in the judicial process, for the purposes of deciding on the harshness of the sentence.”
The Brazilian Public Defender’s Office
“Legitimate defence is always an immediate reaction to a situation. An attack to avoid a supposed possible future aggressive act or a counter-attack after an incident, which would be nothing short of revenge, are not allowed for. Moreover, the Brazilian judicial framework demands that any reaction must be proportionate. Therefore, not every reaction to unjust aggression will be justified and permitted. If there is abuse in terms of excess in the means needed to ward off aggression, or if there is an excessive, unnecessary use of force, then the reaction will not be regarded as in legitimate defence.”
IBCCRIM (Brazilian Institute for Criminal Science)
“The combination of increased flexibility in terms of what is considered to be punishable excess and the automatic assumption of an unjust aggression, based purely on an officer’s claim to being afraid or in an emotional state, is an illogical and unacceptable inversion of the values of the legal system that are protected by the penal system. In other words, in practice, property becomes more important than lives and a person’s physical integrity. This is a subversion of the logic of the legal framework.”
Igarapé
“The proposed addition to paragraph 2 of article 23 of the Penal Code gives judges the means to not enforce the law or to pass sentence when the situation involves “strong emotion, surprise or excusable fear.” With this passage, Moro’s package introduces new factors into the Penal Code. Of these three, emotion is the only one currently cited in the law, in article 28, in which is understood that neither emotion nor passion are motives for a person to be exonerated. It is not clear how these situations would be characterised in concrete cases in the Brazilian courts. One question to be considered is that it is up to the judge to interpret and enforce the law and not whether it should or should not be enforced. In addition, it is to be expected that the majority of situations that involve the use of violence are likely to carry aspects of “fear, surprise and strong emotion,” making the judge’s decision more arbitrary and less objective.”
OAB (Brazilian Bar Association)
“Excessive force in legitimate defence, excusable fear, surprise and strong emotion, are ‘new additions that undermine the penal response and even worse, they could act as a valve for impunity in serious cases.” Regarding the legitimate defence of a police officer or public security agent: “The prevention of aggression and risk of aggression to the victim being held hostage, will increase police actions leading to death, as they are based on subjective conditions. This is a blank cheque for unparalleled lethal actions in Brazil.”
Sou da Paz
“It is important to stress that the first large initiative to fight crime announced by the Federal Executive is aimed at legislative changes. The Minister, Moro currently has six secretaries under his coordination (including Public Security, Integrated Operations, Drugs Policy), the Federal Police (with 13 thousand police officers), the Highway Police (with 10 thousand police officers) and the National Security Force. He has also accumulated other important organisations in the fight against crime such as the Board of Control of Financial Activities (COAF), which has been responsible for important denouncements in recent years. In addition, he has one of the most robust budgets of all the ministries, available to him, with over R$ 17 billion approved in the 2019 federal budget. However, instead of presenting a plan for managing resources, people and technology and for investment in public security, he is insisting on the outmoded recipe, that has already been proved inefficient, that crime is resolved by means of changes to penal law.”
