Brazilian Penal Code of 1940

Introduction

The Brazilian Penal Code (Código Penal, Decree-Law 2.848/1940) is the primary codification of criminal law in Brazil. Enacted on December 7, 1940, and effective from January 1, 1942, it replaced the 1830 Criminal Code of the Empire and the 1890 Penal Code of the Republic. The Code has been extensively amended, most notably by the 1984 reform of the General Part (Law 7.209/1984) and numerous special laws that have expanded and modified the Special Part.

Structure

The Code is divided into a General Part (Parte Geral, Articles 1-120) and a Special Part (Parte Especial, Articles 121-359-H).

General Part

The General Part establishes the fundamental principles and rules of criminal liability:

• Book I: Criminal law (principles of legality, non-retroactivity, territoriality)
• Book II: The crime (typicity, unlawfulness, culpability, attempt, participation)
• Book III: Criminal liability (imputability, mistake, duress)
• Book IV: Penalties (types, application, execution)
• Book V: Extinction of punishability (death of the agent, amnesty, pardon, prescription)

Special Part

The Special Part defines specific criminal offenses, organized by protected legal interests:

• Crimes against the person (Title I)
• Crimes against property (Title II)
• Crimes against cultural heritage (Title III)
• Crimes against the organization of labor (Title IV)
• Crimes against religious sentiment and family (Title V-VI)
• Crimes against sexual dignity (Title VI)
• Crimes against the family (Title VII)
• Crimes against public administration (Title XI)

General Part Principles

Principle of Legality

Article 1 establishes nullum crimen nulla poena sine lege: there is no crime without a prior law defining it, and no punishment without a prior legal provision. This is reinforced by Article 5, XXXIX of the Constitution.

Applicability of Criminal Law

The Code applies to crimes committed in Brazilian territory (territoriality principle, Article 5). Brazilian law also applies to certain extraterritorial crimes (Article 7), including: (i) crimes against the life or liberty of the President; (ii) crimes against the public administration; (iii) genocide; and (iv) crimes that Brazil is obligated to prosecute under international treaties.

The Structure of Crime

The Code adopts a tripartite structure of crime: (i) typicity (tipicidade); (ii) unlawfulness (antijuridicidade); and (iii) culpability (culpabilidade).

Penalties

Types

Article 32 establishes three categories: (i) deprivation of liberty (penas privativas de liberdade): imprisonment (reclusão) and detention (detenção); (ii) restrictive rights (penas restritivas de direitos): community service, temporary suspension of rights, pecuniary penalties; and (iii) fines (multa).

Sentencing

The judge determines the penalty in three stages (Article 68): (i) base penalty, determined by the applicable penalty range; (ii) aggravation or mitigation by circumstances; (iii) increase or decrease by specific causes.

Special Part Reforms

Major Amendments

The Special Part has been significantly modified by special laws that have created new offenses and amended existing ones:

• Environmental Crimes Law (Law 9.605/1998)
• Drug Law (Law 11.343/2006)
• Maria da Penha Law (Law 11.340/2006, on domestic violence)
• Heinous Crimes Law (Law 8.072/1990)
• Cybercrime Law (Law 12.737/2012, Carolina Dieckmann Law)

Sexual Crimes Reform

Law 12.015/2009 reformed the sexual crimes title, replacing “crimes against custom” with “crimes against sexual dignity” and expanding definitions of rape and sexual assault.

Special Laws Complementing the Code

The Penal Code is supplemented by numerous special criminal laws that create offenses outside the Code:

• Money Laundering Law (Law 9.613/1998)
• Anti-Corruption Law (Law 12.846/2013)
• Torture Law (Law 9.455/1997)
• Genocide Law (Law 2.889/1956)

Interpretation

The STJ and STF have developed extensive jurisprudence interpreting Penal Code provisions. Key areas of interpretive development include: (i) the distinction between dolo and culpa; (ii) the limits of self-defense; (iii) the concept of heinous crimes; (iv) drug policy and the distinction between trafficking and personal use; and (v) the principle of insignificance (princípio da bagatela).

Conclusion

The Brazilian Penal Code of 1940, as amended, remains the central codification of criminal law. Its General Part, reformed in 1984, provides a modern framework for criminal liability aligned with constitutional principles. The proliferation of special criminal laws outside the Code has raised questions about the coherence of Brazilian criminal law, but the Code’s General Part continues to provide the systematic foundation for the entire criminal justice system.