Brazil: The Minister Of Justice And Public Security Presents Anti-Crime Proposal

Last Updated: 11 March 2019
Article by Koury Lopes Advogados

Recently, the Minister of Justice and Public Security, Sérgio Moro, presented a proposal that provides for changes in 14 laws, such as the Penal Code, the Criminal Procedure Code, the Law of Execution of Criminal Sanctions, the Drug Law, the Electoral Code, the Money Laundering Act and the Criminal Organization Act.

Despite considerable popular support, the "anticrime" proposal will face difficulties both for its approval and for its implementation. The proposal revisits issues that are the subject of previous bills, that were never passed, and proposes measures that contradict precedents of the Supreme Federal Court.

Among the measures that have already been the target of bills that have not captivated the interest of the congress, are the criminalization of slush funds, changing statute of limitations deadlines and hardening of sanctions for crimes against public administration.

There are also measures that have been declared unconstitutional by the Supreme Federal Court. This is the case, for example, of the proposal that certain convicts for certain crimes must start their sentences in closed prisons. The Supreme Federal Court has also ruled unconstitutional laws that determine that defendants must await trials under custody, since it violates the principle of presumption of innocence. On that note the Court will most likely have the same understanding on the prosed measure to limit prison furlough.

In addition to revisiting issues that already have been declared unconstitutional by the Supreme Federal Court, there are some unconstitutional bill proposals that deserve even greater reflection and caution, such as extended confiscation and a widening of negotiated justice.

The proposal intends to expand the current model of confiscation of property for convicts for crimes with a maximum sentence of more than 6 (six) years. In the proposed model, in addition to the possibility of loss of assets obtained with the proceeds of crime, it allows the confiscation of assets whose lawfulness the defendant could not prove. That is, burden of proof is shifted, and the defendant is the one who needs to demonstrate that her assets are of lawful origin. If the defendant is unable to do so, the judge may confiscate difference between the total assets of the defendant and the assets compatible with her lawful earnings.

Thus, if the defendant cannot prove the origin of her property (which becomes more difficult over time), she may have all her property confiscated, even if part of it is of lawful in origin. In this sense, it can be considered that the extended confiscation violates the principles of presumption of innocence and the right to property.

Another controversial point of the project is the proposal to extend the hypotheses of negotiated justice, in order to speed up criminal procedure and save public resources. However, just as it happens in the United States (the inspiration for the proposed model), the implementation of the plea bargain model in Brazil could lead many people to confess to a crime that they did not practice, fearful of facing a criminal trial and receiving a hard prison sentence in the end.

The proposal has just become a Bill to be analyzed and voted on by the National Congress, and is already subject to harsh criticism. The Brazilian Bar Association has already set up a group, through the Special Committee for the Guarantee of the Right of Defense and the National Legislation Commission, to study the measures and closely follow the discussions in Congress.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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