Brazil’s anti-crime bill takes force, but doubts remain

and . Jan 23, 2020
justice Supreme Court building. Photo: Fellip Agner Brazil's Supreme Court building. Photo: Fellip Agner/Shutterstock

Approved early in December, Brazil’s “anti-crime bill” will come into force on January 23—and it is set to make the Brazilian penal system even harsher than it already is. Though the proposal was significantly changed in Congress, it will still go down as the main accomplishment of Justice Minister Sergio Moro’s tenure so far—and it goes in line with the government’s (highly contested) ethos of hammering down on criminals as a strategy to curb criminality rates.

To sum it up, here are the main issues that were approved:

</p> <ul><li><strong>Harsher penalties.</strong> Life sentences in Brazil were increased from 30 to 40 years. Several crimes—such as defamation on social media, illegally bearing arms, robbery using a lethal weapon, or homicide using restricted firearms—also had their maximum sentences increased.</li><li><strong>Guns.</strong> Bearing restricted firearms is no longer a &#8220;heinous crime,&#8221; which would carry stricter rules for defendants.</li><li><strong>Arrests.</strong> The law establishes more clear cut rules on criteria for judges to allow pretrial arrests—destined not to punish, but to prevent evidence-tampering. Until now, these criteria were vague and subjective. Now, judges are required to give concrete evidence to back a pretrial arrest order.</li><li><strong>Furloughs.</strong> Those convicted for heinous crimes can no longer qualify for prison furloughs.</li><li><strong>Lawyer-client confidentiality.</strong> Meetings between maximum-security prisoners and their lawyers may be taped. Some legal scholars say this violates the right of defense; while advocates claim it protects lawyers from dangerous offenders.</li><li><strong>Whistleblowers.</strong> The bill creates a protection system for civil servants who want to denounce crimes within the public administration.</li><li><strong>Guarantee judges.</strong> Included by Congress, this <a href="">new type of judge will act in the pre-procedural phase</a> to ensure that the acts of the police and prosecutors during investigations comply with Brazilian laws. The idea is to avoid malpractice and the subsequent nullification of sentences.</li></ul> <p>The new figure of &#8220;guarantee judges,&#8221; however, has been the subject of much controversy.</p> <p>At first, Supreme Court Chief Justice Dias Toffoli issued an injunction giving courts 180 days to adapt to the new rules. After all, the creation of a new type of judge will radically affect how Brazil&#8217;s justice system works—possibly requiring more judges. Chief Justice Toffoli also restricted the cases in which the guarantee judge will act—excluding processes in superior courts or those related to domestic violence, electoral crimes, or murder.</p> <h2>Justice Fux: a new twist</h2> <p>Brazilian courts are in recess until February and are operating on an on-call system. For the first half of the holiday period, the Chief Justice was on-call, but he has now been replaced by his vice, Justice Luiz Fux—who promptly issued an injunction provoking another u-turn in the guarantee judge controversy, indefinitely suspending the creation of the new judge.</p> <p>The move was somewhat expected, as Justice Fux is a staunch supporter of Operation Car Wash, and the introduction of guarantee judges has been framed by many lawmakers as a way to curb &#8220;judicial activism&#8221; by magistrates, and avoid the emergence of a &#8220;new Sergio Moro.&#8221; Mr. Moro, a former federal judge and now Justice Minister, is personally against the guarantee judges.</p> <p>The full Supreme Court must now decide on the issue—but no trial date has been scheduled.</p> <figure class="wp-block-image"><img src="" alt="Justice Minister Sergio Moro (L) and Supreme Court Justice Luiz Fux oppose the creation of &quot;guarantee judges.&quot; Photo: Marcelo Camargo/ABr" class="wp-image-30691" srcset=" 1024w, 300w, 768w, 610w, 2048w" sizes="(max-width: 1024px) 100vw, 1024px" /><figcaption>Justice Minister Sergio Moro (L) and Supreme Court Justice Luiz Fux oppose the creation of &#8220;guarantee judges.&#8221; Photo: Marcelo Camargo/ABr</figcaption></figure> <h2>Under the radar</h2> <p>In addition to <a href="">slashing guarantee judges</a>, the new ruling also goes against a milestone of Brazilian fundamental rights: detention hearings. Created in 2015, they ensure that all people apprehended in flagrante committing crimes are brought before a judge within 24 hours.</p> <p>The detention hearing idea is to avoid police abuse cases and to ensure that the rights of these prisoners are respected. As of January this year, just over 680,000 detention hearings have taken place across Brazil, and 40 percent have resulted in the release of prisoners.</p> <p>With the reform of the Brazilian criminal procedural code, the necessity of bringing arrestees before a judge within 24 hours became even more important. Otherwise, there would be a risk of prison annulment. However, Justice Fux&#8217;s decision suspended this section of the law, alleging that the justice system faces difficulties in several regions of the country in bringing prisoners to the authorities or vice versa.</p> <p>Lawyer Maíra Fernandes, who chaired the penitentiary council in Rio de Janeiro—one of the states with most significant prison problems in the country—lamented Justice Fux&#8217;s decision. She argues that it considerably weakens one of the few improvements in the Brazilian prison system in recent years.</p> <p>Ms. Fernandes says that this decision is another attack against detention hearings in recent years. &#8220;Many states were placing conservative magistrates to hold detention hearings or dismantling the centers responsible for assessing the situation of these individuals.&#8221;</p> <p>Ms. Fernandes also stated that the decision was strange, as unlike the recent creation of the guarantee judges, detention hearings have been regulated since 2015. In the rule of the National Council of Justice to define the parameters of these hearings, it states that specific regulations will be created for the locales in which it is not possible to bring arrestees before judges within 24 hours.</p> <p>Criminal Judge <a href="">Luis Carlos Valois</a>, who lives in Amazonas, one of the Brazilian states where mobility is more challenging, agrees that it is impossible for prisoners to come before the authorities within 24 hours. According to him, this difficulty exists because the &#8220;infrastructure [in the region] has been the same since the Brazilian monarchy.&#8221; </p> <p>On the other hand, Mr. Valois criticizes Justice Fux&#8217;s decision, mainly because the constant conflicting changes in judicial understanding can result in the nullity of lawsuits.</p> <p>The decision&#8217;s objectives are also questioned. Criminal lawyer Leonardo Sica claims that Justice Fux overstepped his jurisdiction and made a decision based only on his view of criminal policy and unproven budget data. &#8220;He&#8217;s guessing. It&#8217;s the end of the world. What is unconstitutional in Brazil? Anything I don&#8217;t like?&#8221;</p> <h2>What&#8217;s to come in the Supreme Court</h2> <p>Justice Fux&#8217;s decision gains even more notoriety because he will be the next Chief Justice of the court, starting a two-year term as of September 2020. Legal experts who talked to <strong>The Brazilian Report</strong> under the condition of anonymity say this decision is a prelude to what Justice Fux&#8217;s tenure will be, always listening to the corporatism of the judiciary and Public Prosecution Service.</p> <p>One of Justice Fux&#8217;s decisions that most supports this analysis allowed judges and members of the Public Prosecution Service to maintain housing allowances until the presidency—then occupied by Michel Temer—offered them a salary raise. Initially, the benefit would be granted to employees who did not have a home in the city where they worked.

Gustavo Ribeiro

An award-winning journalist, Gustavo has extensive experience covering Brazilian politics and international affairs. He has been featured across Brazilian and French media outlets and founded The Brazilian Report in 2017. He holds a master’s degree in Political Science and Latin American studies from Panthéon-Sorbonne University in Paris.

Brenno Grillo

The Brazilian Report's correspondent in Brasília, Brenno has worked as a journalist since 2012, specializing in coverage related to law and the justice system. He has worked for O Estado de S. Paulo, Portal Brasil, ConJur, and has experience in political campaigns.

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