The Brazilian legal system is governed by civil law. Consequently, it mainly relies upon codified legislation rather than precedents. Among the various codes in force, there have been many debates over the penal code. This came into force in 1941 and it was partly revised in 1984.
However, due to the ongoing shifts and changes in Brazilian society, a group of jurists, lead by the judge Gilson Langaro Dipp, has been summoned to form a committee in charge of drafting a new penal code. This initiative has been supported by the ex-president of the Senate, Jose Sarney; a powerful and influential politician.
This proposal for a new penal code is seen by Sarney as a chance to consolidate his legacy in the political scenario. He is a controversial figure who has been criticised by his authoritarianism and involvement in several cases of political scandals. Sarney himself and other members of his family have endured cases with strong evidence of corruption although never convicted.
In response to this initiative, institutions, academics and jurists have formed a coalition to criticise and speak out against the draft. Miguel Reale Junior, one of the foremost jurists in criminal law in Brazil, is one of the strongest critics of the proposals.
Commenting on the focus of the resistance, Reale has said: ‘There is no such thing as the focus of the resistance. Institutions such as the Brazilian Bar Organization (OAB), the Department of Public Prosecution (Ministerio Publico), the Attorney General’s office in Sao Paulo (Procuradoria Geral de Sao Paulo), the University of Sao Paulo (USP) have spoken out against it and many others join them.
‘Each institution has been playing a role in exposing the disturbing problems with the draft.’
Among the various issues, he said he would highlight the following: the fact that the selection of the members of the committee was motivated by political purposes, the discrepancies with the penalties, the lack of legal terminology and the time given for the works of the committee. The draft was finished less than nine months subsequent to the commencement of the works. It is little time to elaborate a new penal code. In 1984, only a part of the code was revised and the committee had more than nine months available to work.
‘A symbolic case is the omission in the rendering emergency aid,’ Reale added. ‘The penalty for not rendering emergency aid to an animal in danger is from one to four years, whereas the penalty for doing so to a person in danger is only a month. In other words, the penalty for not rendering emergency aid to an animal in danger is 12 times higher than the one for not rendering emergency aid to a person.’
He argued that firstly, the time given has not been enough. Secondly, that certain members of the committee, such as Rene Dotti (an experienced professor) left the group prior to the completion of its work. Thirdly, that certain members are not experienced enough to be part of the committee.
The impact on foreign investors of the new penal code is a key concern, if it is approved. Reale’s assessment is that ‘it would be very disturbing’. ‘Since the legal terminology has not been applied in many cases, it is difficult to predict the interpretation of the provisions. This would be particularly difficult for foreigners to understand under which circumstances they would not be complying with the law. I believe this could be summarised in two words: legal insecurity.’
Jose Freire Nunes is a legal consultant at Oliveira Lawyers www.oliveiralawyers.com, an international law firm specialising in the representation of foreigners in Brazil. Professor Miguel Reale Junior is a Brazilian jurist and professor and a former minister of justice