Reforms in Brazilian criminal laws are discussed at seminar

Event was also marked by book launch: "Why do legislators want to increase penalties?", authored by Professor André Mendes.
Law
04 April 2019
Reforms in Brazilian criminal laws are discussed at seminar

FGV’s Rio de Janeiro Law School (Direito Rio) held the seminar “Reformas legislativas em matéria penal” (“Legislative Reforms in Criminal Matters”), on March 20. The event brought together experts to discuss proposals for changes in the Brazilian criminal legislation, in particular those provided in the so-called “anticrime pack” presented by the Ministry of Justice and Public Security, in February this year. With the mediation of the two discussion tables held by Direito Rio Professors Thiago Bottino and Michael Mohallem, the seminar was organized by the Center for Justice and Society (CJUS).

Leonardo Cardoso de Freitas, Regional Prosecutor of the Republic – MPF/RJ, noted that the bill adapts the legislation to the current majority understanding of the Federal Supreme Court (STF), which allows for the provisional execution of the sentence. Regarding the “non-criminal prosecution agreement,” he assessed how such a measure can free up the Judiciary Branch, within a framework of criminal bargaining. The Prosecutor also pointed to whistleblowers as important instruments for criminal prosecution. It consists of a reward for persons who provide information that result in recovery of proceeds from crimes against the Public Administration.

In turn, Livia Casseres, Public Defender of Rio de Janeiro, criticized the “non-prosecution agreement” provided in the pack. She noted that Public Defender’s Offices across the country suffer from institutional precariousness, which interferes in the technical defense and, therefore, in the defendants’ conditions of negotiation. She pointed out that certain criminal confessions obtained through torture and, therefore, such agreements could not be concluded. She also criticized the initial compulsory incarceration for the fulfillment of the sentence, considering that the anticrime project fails to consider the country’s prison conditions. Finally, she also criticized the project for creating the concept of “presumed legitimate defense,” which would bring about even more problems in terms of the arbitrary use of force by agents of the state.

Jacqueline de Oliveira Muniz, Professor of the Department of Public Security at the Federal Fluminense University (UFF), argued that the bill proposed by Minister Sérgio Moro extends the possibilities of state negotiation, increasing discretionary power without any control, liability mechanisms, and accountability.

According to the Minister of the Superior Court of Justice (STJ), Rogerio Schietti Cruz, legislative debates in Brazil have been guided by a moralistic perspective, and the production of criminal laws should not have this perspective. According to the Minister, moral, religious and ideological issues cannot interfere with the legislative process in criminal matters. In addition, he said that there is an immense proliferation of criminal laws, with the estimation of more than 10,000 criminal types in Brazil. He also argued that caution and criteria for the creation of new crimes and punishments are necessary and that the principles of necessity, legality, proportionality, minimum intervention and the principle of non-contingent response must be observed, thereby requiring that legislators should not implement laws based on convenience.

Eleonora Rangel Nacif, President of the Brazilian Institute of Criminal Sciences (IBCCRIM), noted that the anticrime pack promotes among the population an idea of ​​fighting corruption, but which is in fact another instrument of oppression of the poor, black and peripheral population, which has always been the clientele of the prison system. She indicated that the project increases the mass incarceration that already exists in the country. The attorney noted that there was no consultation with society or the academics, as well as public hearings, and classified the pack a type of bait, or a decoy.

The Federal Police Superintendent in Rio de Janeiro, Ricardo Andrade Saadi, considered that the discussion on legislative changes in the criminal and criminal procedure area part of the current agenda and cited the 10 anti-corruption measures, “New measures against corruption”, headed by Transparency International and by FGV’s Direito Rio and Direito SP, as well as the work of the National Strategy to Combat Corruption and Money Laundering (ENCCLA), for example. He argued that the measures and impacts of the anticrime pack were discussed with civil society. Regarding the performance of the Federal Police, the project ensures greater speed in international legal cooperation. He also offered a positive assessment of the legal framework for establishing joint investigation teams with other countries to investigate terrorism crimes, transnational crimes, or crimes committed by international criminal organizations.

In the final speech, André Mendes, Professor at Direito Rio, said that contemporary democracies have faced the phenomenon of criminal populism, which represents a set of discourses and practices of harsher punishments without guarantee of effectiveness, transformation of reality, and reduction of criminal indices. He stressed that the anticrime pack was initially disclosed unaccompanied by a rationale, which undermines the deep public debate, with due analysis of studies, data and statistics that should guide the legislative decision in criminal matters. He also criticized the project as regards its possible impact on the prison system, considering the current situation of prison overcrowding, lack of vacancies, and the huge number of prison warrants to be served in the country.

Event was also marked by book launch

After the seminar, a cocktail was offered to celebrate the release of the book “Por que o legislador quer aumentar penas? Populismo penal legislativo na câmara dos deputados: análise das justificativas das proposições legislativas no período de 2006 a 2014” (“Why do legislators want to increase penalties? Legislative criminal populism in the Chamber of Deputies: analysis of justifications of legislative proposals in the period from 2006 to 2014”), authored by Professor André Mendes and published by Del Rey Editora.

The book was produced based on research on bills submitted to the Chamber of Deputies from 2006 to 2014, aiming to increase penalties already existing in Brazilian legislation. The book brings data on the parliamentary performance in the context of the phenomenon referred to as “criminal populism.”

Please visit the website for more information about the book.