Criminal Law in Brazil

Introduction

Criminal law in Brazil (Direito Penal) is codified primarily in the Penal Code of 1940 (Decree-Law 2.848/1940) and supplemented by numerous special criminal laws. The 1988 Federal Constitution establishes fundamental criminal law principles, including legality (legalidade), non-retroactivity of unfavorable law, and human dignity. Brazil’s criminal law system follows the civil law tradition with a written, inquisitorial heritage that has been progressively reformed to incorporate adversarial elements and human rights protections.

Fundamental Principles

Principle of Legality

Article 1 of the Penal Code and Article 5, XXXIX of the Constitution establish nullum crimen nulla poena sine lege. There is no crime without a prior written law defining it, and no punishment without a prior legal provision. The principle prohibits: (i) analogy to create crimes or aggravate punishment; (ii) customary criminal law; and (iii) indeterminate criminal laws.

Principle of Culpability

Culpability (culpabilidade) is a foundational principle requiring that punishment be imposed only when the agent may be personally blamed for the act. It encompasses: (i) imputability (imputabilidade) — the capacity to understand the wrongful nature of the act; (ii) potential knowledge of unlawfulness (potencial consciência da ilicitude); and (iii) demandability of conforming conduct (exigibilidade de conduta diversa).

Structure of Criminal Offenses

Brazilian criminal law theory distinguishes three levels in the structure of crime:

Typicity (Tipicidade)

An act must correspond to the criminal type (tipo penal) — the abstract description of prohibited conduct. Typicity includes both objective elements (conduct, result, causation) and subjective elements (intent or negligence). The Penal Code distinguishes between:

• Intent (dolo): The will to act and achieve the result (Article 18, I)
• Negligence (culpa): Unintentional conduct resulting from imprudence, negligence, or lack of skill (Article 18, II)

Unlawfulness (Antijuridicidade)

An act is unlawful unless justified by an exclusionary ground (excludente de ilicitude). The Penal Code recognizes: (i) self-defense (legítima defesa, Article 25); (ii) state of necessity (estado de necessidade, Article 24); (iii) strict compliance with legal duty (estrito cumprimento do dever legal, Article 23, III); and (iv) regular exercise of a right (exercício regular de um direito, Article 23, III).

Culpability (Culpabilidade)

Culpability is the ground for personal blame and includes: (i) imputability; (ii) potential knowledge of unlawfulness; and (iii) demandability of conforming conduct. Grounds excluding culpability include mental illness (doença mental, Article 26), mistake of law (erro de proibição, Article 21), and duress (coação moral irresistível, Article 22).

Classification of Crimes

The Penal Code classifies offenses in the Special Part (Parte Especial), organized by protected legal interests:

• Crimes against the person (crimes contra a pessoa): Homicide, bodily injury, threats
• Crimes against property (crimes contra o patrimônio): Theft, robbery, embezzlement, fraud, damage
• Crimes against sexual dignity (crimes contra a dignidade sexual): Rape, sexual harassment
• Crimes against the public administration (crimes contra a administração pública): Corruption, embezzlement, abuse of authority

Sanctions

Types of Penalties

The Penal Code establishes three categories of penalties (Article 32):

• Deprivation of liberty (penas privativas de liberdade): Imprisonment (reclusão) and detention (detenção), distinguished by the severity of the regime
• Restrictive rights penalties (penas restritivas de direitos): Community service, temporary suspension of rights, and pecuniary penalties
• Fines (multa): Calculated in days-fine (dias-multa), adjusted to the offender’s economic situation

Sentencing Regimes

Imprisonment is served in one of three regimes: closed (fechado), semi-open (semiaberto), and open (aberto), determined by the penalty length and the offender’s status. The Fines Law (Law 7.210/1984) governs sentence execution.

Special Criminal Laws

In addition to the Penal Code, Brazil has numerous special criminal laws addressing specific areas:

• Environmental Crimes Law (Law 9.605/1998)
• Drug Law (Law 11.343/2006)
• Domestic Violence Law (Law 11.340/2006, Lei Maria da Penha)
• Money Laundering Law (Law 9.613/1998)
• Heinous Crimes Law (Law 8.072/1990)
• Anti-Corruption Law (Law 12.846/2013)

Criminal Procedure Reform

Brazilian criminal procedure has undergone significant reform. Law 11.689/2008 and Law 11.690/2008 reformed the Criminal Procedure Code (CPP), introducing: (i) the accusatorial system as a guiding principle; (ii) enhanced rights for the accused; (iii) stricter rules for pre-trial detention; and (iv) the exclusion of illegally obtained evidence.

Law 13.964/2019 (the Anti-Crime Package or Pacote Anticrime) introduced: (i) plea bargaining (acordo de não persecução penal); (ii) the judge of guarantees (juiz das garantias); (iii) changes to the pre-trial detention regime; and (iv) strengthened asset forfeiture mechanisms.

Conclusion

Brazilian criminal law presents a complex system that balances the need for public security with the protection of fundamental rights. The 1988 Constitution’s elevation of human dignity and the 2003 and 2019 reforms have progressively aligned the system with international human rights standards, though challenges remain in enforcement, prison conditions, and the integration of restorative justice practices.