Criminal Law Terms in Brazilian Law

Introduction

This glossary defines key terms in Brazilian criminal law and procedure. These concepts are essential for understanding the Penal Code of 1940, the Criminal Procedure Code, and the constitutional principles governing criminal justice.

Tipo Penal

Criminal type (tipo penal) is the abstract description of prohibited conduct in a criminal statute. The tipo contains objective elements (conduct, result, causation) and subjective elements (intent or negligence). Typicity (tipicidade) is the correspondence between the actual conduct and the abstract description. The principle of legality requires that the tipo be clearly defined by prior written law.

Culpabilidade

Culpability (culpabilidade) is blameworthiness — the basis for personal criminal responsibility. It has three elements: (i) imputability (imputabilidade) — the capacity to understand the wrongfulness of the act; (ii) potential knowledge of unlawfulness (potencial consciência da ilicitude); and (iii) demandability of conforming conduct (exigibilidade de conduta diversa). Grounds excluding culpability include mental illness, mistake of law, and duress.

Excludentes de Ilicitude

Exclusionary grounds of unlawfulness (excludentes de ilicitude, Articles 23-25, Penal Code) are circumstances that make otherwise unlawful conduct lawful. They include: (i) self-defense (legítima defesa); (ii) state of necessity (estado de necessidade); (iii) strict compliance with legal duty (estrito cumprimento do dever legal); and (iv) regular exercise of a right (exercício regular de um direito).

Fiança

Bail (fiança, Articles 321-350, CPP) is a criminal procedural mechanism allowing the accused to obtain release from pre-trial detention by posting a monetary bond. The court sets the bail amount considering: (i) the nature of the offense; (ii) the defendant’s economic capacity; and (iii) the social interest in release. Certain serious offenses are not eligible for bail.

Liberdade Provisória

Provisional release (liberdade provisória, Articles 310, 321, CPP) is the release of an accused person pending trial, with or without conditions. It may be granted: (i) when the arrest was illegal; (ii) when the requirements for pre-trial detention are absent; or (iii) when the grounds for detention no longer apply. Conditions may include periodic court appearances, travel restrictions, and electronic monitoring.

Prisão Preventiva

Pre-trial detention (prisão preventiva, Articles 311-316, CPP) is the preventive imprisonment of an accused person during investigation or before final judgment. It requires: (i) proof of the crime and probable cause; (ii) grounds of necessity, including risk of flight, danger to the investigation, or danger to public order; and (iii) necessity for the guarantee of societal order, the economy, or the application of criminal law.

The STF, in HC 124.306 (2016), held that pre-trial detention may not be used as an automatic consequence of conviction and must be based on specific, individualized grounds.

Prisão Temporária

Temporary detention (prisão temporária, Law 7.960/1989) is a pre-trial detention of up to 5 days (extendable to 10) for specified serious crimes during the investigation phase. It requires: (i) necessity for the investigation; (ii) indication of the accused’s participation; and (iii) specific grounds under the law.

Habeas Corpus

Habeas corpus (Article 5, LXVIII, Constitution) is a constitutional writ protecting freedom of movement against illegal or abusive coercion. It is available for: (i) preventive protection (when there is a threat); (ii) repressive protection (when the person is already imprisoned). Habeas corpus is free of charge, may be filed by any person, and is not subject to statutes of limitations.

Dolo

Intent (dolo, Article 18, I, Penal Code) is the conscious will to achieve a criminal result. Brazilian law distinguishes: (i) direct intent (dolo direto) — the specific purpose of achieving the result; (ii) indirect intent (dolo indireto) — divided into alternative intent (alternativo) and indeterminate intent (indeterminado); and (iii) eventual intent (dolo eventual) — accepting the risk of the result.

Culpa

Negligence/culpability (culpa, Article 18, II, Penal Code) exists when the agent unintentionally causes a result through: (i) imprudence (imprudência); (ii) negligence (negligência); or (iii) lack of skill (imperícia). Criminal negligence is punished only when the law expressly provides for it. The STJ distinguishes degrees of negligence (slight, ordinary, gross).