Plan to toughen crimes against democracy generates criticism – 07/21/2023 – Power

The Lula government’s (PT) proposal to toughen penalties for crimes against the democratic rule of law, which can reach 40 years in prison in the case of an attempt on the life of authorities, was considered excessive by experts interviewed by the Sheet.

The full text of the bills has not yet been released, but the Ministry of Justice has made a summary available.

According to the text, the project intends to improve articles 359-L and 359-M, both of the Penal Code, and “dispose of the applicable causes of increase”.

In the law in force today, which was approved in 2021, there is no differentiation in the penalty for these crimes depending on the type of participation of the investigated. This legislation replaced the National Security Law, which had been in force since the time of the military dictatorship.

Regarding the proposed changes, there are those who consider that, because these crimes are very recent, it would still take more time to mature before seeking to change them. On the other hand, there are those who see the proposed gradation of sentences as positive, which would change depending on participation in crimes, such as financiers and organizers.

Another highlight is the amendments to precautionary measures for the search and seizure of assets and the blocking of bank accounts in the event of these crimes. The proposal authorizes that they be made ex officio by the judge, that is, without provocation from other parties, in addition to including the Union as a possible requester.

One of the proposals is a penalty of 20 to 40 years in prison for crimes that attempt against the lives of the presidents of the three Powers, the vice president of the Republic, ministers of the STF (Federal Supreme Court) and the attorney general of the Republic, with the aim of altering the democratic constitutional order.

Another point is the penalty of 6 to 12 years for anyone who violates the physical integrity and freedom of these authorities, also pointing to the purpose against democracy.

The sentence of up to 40 years became possible as of 2019, with the approval of the anti-crime package. Until then, the limit in Brazil was 30 years.

For Raquel Scalcon, a professor at FGV Direito São Paulo and a criminal lawyer, the law on crimes against the democratic rule of law is very recent, and it has not yet been possible to “effectively assess the adequacy of the wording of crimes and the setting of penalties”.

The professor also considers that the proposal represents a very considerable increase in penalties.

“The Brazilian prison system is experiencing an unconstitutional state of affairs. So, the setting of a maximum sentence of 40 years, no matter how serious the crime, I perceive that there is a disproportion with the other crimes of the Code [Penal] and with prison reality,” he says.

The bill also provides for a penalty of 6 to 12 years in prison for those who organize or lead anti-democratic movements and 8 to 20 years for those who finance them.

The Lula government justified the proposal by stating that the January 8 attacks showed that the penal treatment of crimes of this type “must be more severe in order to ensure the free exercise of powers and democratic institutions and the regular functioning of essential public services”.

Vinicius de Souza Assumpção, criminal lawyer and second vice president of IBCCrim (Brazilian Institute of Criminal Sciences), also sees the possibility of sentences of up to 40 years as negative and says that there are no scientific studies on the effectiveness of adopting high sentences.

“That [proposta de] amendment enshrines the highest maximum penalty provided for a crime in the Brazilian legal system”, he says.

For the criminalist, “not even the importance of legal assets such as the democratic rule of law justifies the application of such high penalties.”

On the other hand, he assesses that, in theory, changes with specific crimes for specific conducts can be positive, so that the penalty applied at the end is compatible with the crime that was committed.

The lawyer points out, however, that it would be important to have access to the justification for each of the amendment forecasts, because they create limitations for those who will judge. “Is organizing or leading more or less serious than funding?” he asks.

Davi Tangerino, criminal lawyer and professor of law at Uerj (Rio de Janeiro State University), does not consider that the fact that the legislation is recent makes the proposal for alteration hasty.

He points out as a virtue of the suggestions the establishment of a gradation of the penalty, depending on the seriousness of the conducts.

“This type of ladder makes perfect sense,” he says. “This prevents people with different contributions from receiving equal sentences.”

On the other hand, he also sees the 40-year sentence as excessive and considers the tightening of sentences to be symbolic, but without empirical evidence that it would have the effect of deterring people from committing the crime.

For Alexandre Wunderlich, professor of criminal law and author of the book “Political Crime, National Security and Terrorism”, the proposed changes are unnecessary and there is an excess penalty of up to 40 years in prison.

He classifies the current law penalties as reasonably adequate, maintaining that crime control is done by a series of complex factors, not by increasing penalties.

“These punitive innovations represent a setback, typical of an emergency situation, without due reflection, to meet certain social claims”, he says.

According to Diego Nunes, who is a professor of criminal law history at UFSC (Federal University of Santa Catarina) and organizer of the book “Crimes against the Democratic State of Law”, during the course of the text in the Chamber, the prediction of a specific penalty for the case of violence or death to certain authorities was included in the project. The item was later changed due to increased penalties, and ended up outside the approved version.

At first, Nunes does not see as negative the insertion of the attack on the life of the authorities as a special cause of increased penalty in the case of the commission of crimes against the democratic rule of law.

He assesses that, therefore, the gradation of the application of the penalty is less likely to change, case by case, depending on the judge. Nunes considers, however, that there is room to discuss whether the size of the penalty is adequate.

In addition to the proposal that toughens penalties, the government also announced a bill that authorizes the seizure of assets and the blocking of bank accounts and financial assets in crimes against the democratic rule of law.

The proposal determines that this type of precautionary measure can be made ex officio by the judge, in addition to including the Union among the actors that can request it.

Raquel Scalcon sees a problem with the proposal. “A judge decreeing an ex officio precautionary measure would be a setback in the Brazilian adversarial system and of questionable constitutionality”, she says. “And so I think regardless of the seriousness of the investigated crime.”

Tangerino, in turn, does not see the measure as problematic, as it is a precautionary measure related to assets. He claims that today there is controversy, in jurisprudence, whether it is possible for this type of measure to be taken without provocation by the judge.