Crimes Against Justice: Re-entry & False Reporting

• The text covers crimes against the administration of justice in Brazil, located in Chapter III, Title XI of the Penal Code (CP).

Re-entry of Expelled Foreigner and False Denunciation

• Art. 338 of the CP addresses the crime of a previously expelled foreigner re-entering Brazilian territory.
• Punishment for re-entry includes imprisonment from one to four years.
• Additional expulsion can occur after serving the sentence if they cannot prove that they are not harmful or dangerous.
• A foreigner is anyone who is not a native or naturalized Brazilian, as outlined by Article 12 of the Federal Constitution (CF).
• Expulsion, an administrative measure involving obligatory removal of immigrants or visitors combined with a set duration of re-entry prevention.
• Expulsion characteristics: Administrative measure, mandatory, targets immigrants or visitors, and includes a set duration of re-entry prevention.
• Deportation involves failure to comply with standard entry and stay procedures, and extradition involves a state surrendering an individual to another state due to a crime.
• Expulsion may occur due to a conviction with a final judgment related to genocide, crimes against humanity, war crimes, or common crimes punishable by imprisonment.
• Requirement for expulsion: a conviction with a final judgment.
• International drug trafficking, theft, and robbery are the most frequent crimes that lead to the expulsion of foreigners.
• Article 55 of the Immigration Law outlines scenarios where expulsion is not allowed.
• Expulsion cannot occur when it constitutes extradition unaccepted by Brazilian law, foreigner has a Brazilian child under their custody, or has a Brazilian spouse.
• The foreigner has lived in Brazil since the age of 12, or if they are over 70 years old and have lived in Brazil for over 10 years.
• If expelled foreigners remain in Brazil without leaving, Article 338 of the CP does not apply.
• The Superior Court of Justice (STJ) acknowledges that circumstances preventing expulsion do not need to align with the fact motivating the expulsion, and an expulsion act can be suspended and validated when refugee status is lost.
• Article 54, Paragraph 3 of the Immigration Law states that expulsion processing will not hinder advancement of sentences.
• False denunciation, addressed in Article 339 of the CP, involves initiating investigations against someone by falsely accusing them of a crime or ethical violation.
• Act specifies causing the start of police inquiries, investigative actions, lawsuits, administrative proceedings, or civil suits by falsely accusing someone.
• Punishment for denunciation includes imprisonment of two to eight years, along with a fine.
• The penalty increases by one-sixth when the agent uses anonymity or a fictitious name, and is reduced by half if the accusation involves a misdemeanor.
• Crime requires malicious intent involves knowingly accusing an innocent person.
• Imputation, without the opening of an investigation, does not constitute a crime. it requires the case to be communicated to authorities.
• Crime is classified as a standard crime that anyone can commit.
• Necessary that a specific crime is imputed to a specific person, otherwise it constitutes false reporting of a crime.
• If the accusation leads to starting of a Parliamentary Investigation Commission (CPI), a crime has not occurred if commission isn't outlined in statute.
• False reporting targets crimes against justice while slander is aimed at crimes against personal integrity.

False Communication and False Self-Accusation

• The objective of the crime is to avoid general insecurity.
• The crime of falsely reporting a crime or misdemeanor is outlined by Article 340 of the CP.
• Crime has a low penalty, and qualifies for considerations of Law 9.099/95.
• The crime can be committed by anyone, but attempt is admitted.
• Crime only happens if the contacted authority takes action on the accusation.
• The false role of slander is more comprehensive.
• The crime outlined by Article 341 of the CP is false self-accusation.
• Crime also applies to people incriminating themselves.
• The crime can be committed by anyone, and requires the authority be informed of crimes with some measure.
• Action must be formal.
• Unlike false self-accusation, personal favoritism (art 348 CP) and does not involve incorrect information.
• Personal favor involves helping someone escape police action.

False Testimony or False Expertise

• Article 342 of CP defines this crime.
• Crime involves either, false claims, denials, or concealing the truth as a witness, expert, accountant, or translator in court, which carries a penalty of 2-4 Years in prison, plus a fine,.
• Sentence increased by 1/6 if there is bribery, or if testimony is to be entered as evidence of harm.
• In order for actions not to be punishable, there must be a retraction of information.
• Punishable conduct: false statements, negation, or omitting the truth, under oath.
• Individual must be a witness, expert, and translator.
• Action must take place in Administrative and Judical process, police questioning, and arbitrary judgement.
• The person must act as the testifier, expert, or translator.
• Not applicable to victims.
• Can only be committed with intent, and is not a lesser offense under law.
• Third party instigating crime is possible.
• Exception: Two experts collude to create one testimony.
• Crime is committed once the testimony document is signed.
• Article 342 of code covers two reason for increased penalty.
• The crime was committed through bribery, the crime, and the aim was to create evidence that would be used in court.
• Crime is extinguished if statement is retracted.

Specific Active Corruption and Coercion during the Course of Proceedings

• Contained in Art. 343 of the Penal Code (CP).
• Aims to prevent someone from giving real testimony.
• Penalty: prison sentence from 3 to 4 years, and a fine.
• Aims to ensure there is truthful testimony.
• The actions involve, giving promising or money or advantages to testifiers.
• Aimed at preventing testifiers from making certain claims.
• Corruption lies in offering advantages, not outcomes.
• Corruption has intention and no negligence.
• Corruptor, offers something testifiers or another party to create false witness.
• Is an exception to Monist Theory.

Monist Theory

• Exception that multiple individuals pursue the same legal outcome or share a legal outcome.

Increase in Punishment

• Sentence will be increased if attempt is to produce harm and action is aimed at producing legal harm.

Coercion During the Course of Proceedings

• Aims to prevent individual from moving case forward in alignment with law (Art. 344, PC)
• Aims to prevent individuals from using force or threatening action.
• No need for someone to get threatened for the coercion to be carried out.
• Harm can be caused before crime or during crime.
• Is only possible with intention, and requires some action.
• Person needs to be threatened to be committed.
• Can involve physical harm.
• Has legal consequence through law. Aims to prevent the process of intimidation.
• Punishment increased if against dignity.

Arbitrary Exercise of One's Own Reason

• (exercício arbitrário das próprias razões), (Art. 345. PC)
• Punishment: period of detention that includes the charge for violence, additional change only applies from filling a legal complaint.
• Violence must not have been a part of what happened.
• Crime can be formal and one party attempts to make a second party commit the crime.
• Force is used to try and get one legal side to be favored.
• Intention must be involved.

Fraud In Court (Fraude Processual)

• Contained in Art. 347 of Penal Code.
• Action of innovating artificially to harm a court.
• Only exists with intention, not with negligence.
• Crime is committed once fraud is committed.
• Can be performed in court.
• If something is involved with judgement.
• No charge is pursued if there happens to not be a judge.

Personal Favoritism and Favoritism

• Art 348, if Penal Code, a crime designed to aid individuals with crime. Includes people with sentences, and are penalized with 1 to 6 more months behind bars.
• If the aim is to help someone escape.
• Involves supporting the escape of person.
• Crime can involve negligence, intention.

Cause for Extinction of Punishment

• Art 348, PC
• Clause has cause for someone can be assumed not guilty.

Professional Loyalty and Loyalty in Participation

• Difference in both situations exists in participation and involvement
• A crime designed to avoid escape from prison.

Real Favoritism

• A crime that helps make a crime more secure (art. 349 & 349-A PC)
• Does not involved escape, but protects assets.
• Can have occurred with people buying items.

Cellphone in Prison

• Punsihment is that person involves in promotion, intermediary action, to help enable entry of cellphone from prison, without approval.

Favoritism vs Money Laundering

• Both can be similar, needs to be viewed with care, both crimes harm the administration and must have origin
• Money laundering Art 1, law 9,613/98

• Aims to hide assets that come from other crime.
• Can come from other previous crime.

Crimes Committed by Detainees

• (Art. 351, PC), aim is to promote or help people make escape, six months to two years is the punishment.
• One: if committed by armed charge is changed to 2-6 years.
• Two: If violence, charged will add to violence of crime.
• Three: Sentence can lead to one to four years detention on top.
• Four: Can lead to three month to one year, or a fee.
• Only crimes involve people who help people flee.

Responsibility and Custody

• If the agent responsible for custody permits escape, penalty is change to 1-4 charge.

Evasion through violence against an individual

• Escape of individual does not constitute a crime.
• (Art. 50 II, LEP).
• (Art. 352, PC), to evade the process with violence, entails detention of six months, plus the violence.
• If crime is on the basis of violence, charge will hold additional violence.
• Charge means that the crime will also have consequence.

Snatching of a prisoner

• Retracting prisoner from establishment to promote abuse( art. 353 PC), carries sentence from 1-4 yeas, and additional charge on violence.

Riot of Prisoners

(Art. 354, PC), disturbance in prison can be considered grave in addition to normal penalty.

Minors in Custody/Internment

• Questionable with relation to art 354, minors have rights separate from prisons, and penal structure (HC 24833. RJ.

Dissimilarity between Prison riot and Mutiny

• Not to be confused with the Riot against civil code in military law.
• Does not include the laws as pertained to in army law

Unloyal Sponsorship, Exploitation of Prestige and Disobedience involving Loss, or Suspension of Rights

• (Art 355 PC)
• Involves Lawyer who violates professional duty.
• Lawyer hurts image of person or client.
• If lawyer acts in a similar way, the same process applies.
• Involves someone using influence to sway decision, Art 355 PC
• Attorney must have influence ( Art 357 PC)

Exploitation of Privilege

• Influence in exchange for resources, to influence decisions.
• Involves resources to change actions.
• Aims to change mind of judge or the process.
• Increased sentence if claim the money goes to judge.

Benefit of action

• Parties that win still did something wrong.

Exploitation of Prestige vs Abuse

• The abuse of power, 332 PD.

Non-compliance and legal judgement on loss of suspension

• (Art 359 PC) if one loses a function but continues it then it is considered crime.
• Aims to defend authority and civil code.
• If something in civil code is violated then can be superceded.