Contextualization
Crimes against public administration occupy a central role in Brazilian Criminal Law, reflecting the legislator's concern in preserving the integrity, efficiency, and trust in state institutions.
The Brazilian scenario is marked by episodes of corruption and misconduct on the part of public officials. Therefore, the need for a rigorous legal framework to curb and punish such practices is reinforced.
The Brazilian Penal Code, Decree-Law 2848 promulgated in 1940 and subject to several updates over the years, including after its incorporation into the 1988 Constitution, is the main normative source for the definition and punishment of these crimes. Articles 312 to 359-H are dedicated to defining conduct such as embezzlement, corruption, extortion, among others, detailing the penalties and aggravating or mitigating circumstances.
This article will briefly present an overview of the nature of these crimes and some of the main types of crimes that need to be understood.
Nature of the Crimes
Crimes against public administration are characterized by violations of the duty of loyalty to the State, which can be committed by public servants or by private individuals interacting with the public sector. These offenses undermine administrative morality, public assets, transparency, and the efficiency of government services.
These crimes can be subdivided into 5 groups:
- Crimes committed by public officials against the administration in general;
- Crimes committed by private individuals against the administration in general;
- Crimes against foreign public administration;
- Crimes against the administration of justice;
- Crimes against public finances;
These crimes have a strong social and political impact, affecting not only public finances but also the credibility of institutions and public trust in the government. Corruption and other similar crimes can erode the foundations of democracy, hinder economic and social development, and fuel inequality.
In this sense, combating these crimes is complex and requires not only strict laws, but also effective systems of oversight, investigation, and prosecution. Cooperation between different control bodies, such as courts, the Public Prosecutor's Office, police, and administrative oversight entities, is fundamental to the effectiveness of repressive measures.
Objectives of Criminal Law
The primary objective of criminal law, with regard to crimes against public administration, is to protect the State and its functions against illegal acts that could compromise its integrity and efficiency. This includes safeguarding public assets, preserving administrative morality, and guaranteeing transparency and probity in the exercise of public functions.
Furthermore, it plays a crucial role in deterring potential offenders. By establishing severe penalties for crimes such as corruption, embezzlement, and extortion, criminal law seeks to inhibit individuals and groups from engaging in corrupt practices or abuse of power. The idea is that the risk of significant punishment acts as a deterrent to such conduct.
It can be observed that criminal law plays a multifaceted role, ranging from the direct protection of the State and its functions to the promotion of a culture of integrity and responsibility.
This set of laws is, in the best understanding, essential for the healthy and efficient functioning of public administration, reflecting the values and expectations of Brazilian society regarding the conduct of its public servants and institutions.
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Examples of Crimes Against Public Administration
1. Embezzlement (Article 312 of the Penal Code)
The crime of embezzlement is defined in article 312 of the Brazilian Penal Code and constitutes one of the most serious forms of offense against public administration. It is characterized by the appropriation, diversion, or theft of public assets or funds by a public servant, for themselves or for another, taking advantage of the position or function they hold.
As can be seen from the legislation, it is subdivided into several types:
- Embezzlement-Appropriation (Article 312, caput): Occurs when a public servant appropriates money, valuables, or any movable property, public or private, that is in their possession by virtue of their position.
- Embezzlement (Article 312, sole paragraph): This occurs when a public servant misappropriates assets or valuables entrusted to them by virtue of their position.
- Embezzlement-Theft (Art. 312, § 1º): This occurs when a public servant, taking advantage of the ease afforded by their position, appropriates movable property belonging to another for themselves or for another person.
- Negligent Embezzlement (Art. 312, § 2): This occurs when, through negligence, recklessness, or incompetence, a public servant contributes culpably to the occurrence of embezzlement.
It can therefore be concluded that embezzlement is distinguished from other crimes against public administration, such as passive corruption or extortion, by the element of appropriation or diversion of assets. While corruption involves soliciting or receiving undue advantages, embezzlement is strictly related to the abuse of functions to obtain material gain.
2. Passive Corruption (Article 317 of the Penal Code)
Passive corruption is a type of crime expressly defined in article 317 of the Penal Code, and is one of the most emblematic offenses against public administration. It occurs when a public servant solicits or receives, directly or indirectly, for themselves or for another, an undue advantage, or accepts the promise of such an advantage, by reason of their position. This crime is one of the pillars of the fight against corruption in Brazil, representing a serious attack on administrative morality and public trust in institutions.
It is subdivided into two types:
- Passive Corruption: When a public servant solicits or receives an undue advantage through an act of their office.
- Improper Passive Corruption: When the benefit is requested, received, or promised after the official act, but still by reason of the function.
This type of crime differs from Active Corruption (article 333 of the Penal Code), which we will see later, because it is committed by a public servant who solicits or receives the benefit, while the former occurs when a private individual offers or promises the benefit to the public servant.
3. Active Corruption (Article 333 of the Penal Code)
As described in the previous paragraph, this crime occurs when a person offers or promises an undue advantage to a public servant, with the intention of inducing them to perform, omit, or delay an official act. This crime is the direct complement to passive corruption, dealing with the conduct of those who corrupt or attempt to corrupt state agents.
4. Prevarication (Article 319 of the Penal Code)
The crime of prevarication is defined in article 319 of the Penal Code and is characterized by the conduct of a public servant who, due to personal interest or feeling, improperly delays or fails to perform any official act, or performs it against an express provision of law to satisfy a personal interest or feeling.
It can also be stated that it is expressed as a conduct-based offense, consummated by the simple action or omission of the public servant, regardless of the result or damage caused. The focus is on the violation of the duty of impartiality and efficiency that governs the public function.
Conclusion
Understanding crimes against public administration is essential for any discussion about ethics, governance, and justice in Brazil. These crimes, due to their nature and consequences, are extremely serious and require constant attention from the legal system, public officials, and society in general.
The effectiveness in preventing and punishing these crimes is a significant indicator of the democratic health and institutional maturity of the country.
For a legal professional working in the field of Criminal Law, it is essential to delve into and understand the importance of studying crimes against public administration and their impact on Brazilian society.
In order for our clients' defense to be based on technical expertise and the empirical application of theory, the development of a lawyer begins with the formation of a solid practical and theoretical foundation.
With this in mind, IDP offers an online postgraduate program in Criminal Law and Criminal Procedure . It features professors who are lawyers and ministers who are leading figures in Brazilian and international criminal law.
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References
BRAZIL. DECREE-LAW No. 2.848, OF DECEMBER 7, 1940. Penal Code.
LUGARINHO, HELEN. What are crimes against public administration. Available at: <https://clickcompliance.com/o-que-sao-crimes-contra-administracao-publica/#:~:text=Existem%20diversas%20modalidades%20de%20crime,312%20e%20359%20do%20C%C3%B3digo.> Accessed on: 12/18/2023.
BITENCOURT, CEZAR ROBERTO. Treatise on Criminal Law: Volume 5. 17th Ed. Saraiva-SP. 2023.
