Law 13.964/2019 became known as the Anti-Crime Package, which in its first article defines it as a law that improves criminal and criminal procedure legislation.
Therefore, it became necessary to amend and insert provisions in various parts of the Criminal and Criminal Procedure Law.
The aforementioned law has been in effect since January 2020, and the package ended up altering approximately 17 legal provisions, including the Penal Code (CP), the Code of Criminal Procedure (CPP), and the Law on Criminal Execution (LEP).
We can understand the Anti-Crime Package as a relevant social measure in the fight against organized crime and other crimes considered violent.
Furthermore, with the arrival of the device, gaps in the legislation were filled, facilitating proper criminal prosecution and guaranteeing the inherent rights of the accused through the inclusion and clarification of important provisions.
Statistics on violence in Brazil translate into a widespread feeling of insecurity, which ultimately results in society demanding stricter measures to combat crime.
Just as anything new ends up generating doctrinal and jurisprudential discussions, the anti-crime package is no different; after all, time is needed for proper consolidation.
What is the objective of the anti-crime package?
The anti-crime package was marked by the measures adopted, most of which make the penalties for more serious crimes more severe and increase the progression of those penalties.
For example, in order for a convict to benefit from sentence progression, it is required that 70% of the sentence be served before they can progress to a less restrictive regime, in the case of a repeat offender of a heinous crime (Article 112, VIII, of Law No. 7.210/84).
Conversely, despite the increase in the number of homicides of women, as well as femicides, the anti-crime package alters the Code of Criminal Procedure in such a way that the aggressor does not benefit from the Non-Prosecution Agreement (ANPP), thus initiating the prosecution of the perpetrator.
Thus, pursuant to Article 28-A, §2, IV of the Code of Criminal Procedure:
Article 28-A. If the case is not one for dismissal and the investigated party has formally and circumstantially confessed to committing a criminal offense without violence or serious threat and with a minimum sentence of less than 4 (four) years, the Public Prosecutor's Office may propose a non-prosecution agreement, provided that it is necessary and sufficient for the reprobation and prevention of the crime, under the following conditions, adjusted cumulatively and alternatively:
§ 2 The provisions of the first paragraph of this article do not apply in the following cases:
IV – in crimes committed within the context of domestic or family violence, or committed against women due to their gender, in favor of the aggressor.
In this way, the true objective of the legislative change was demonstrated, which was to rigorously combat organized crime, violent crimes, and other crimes that cause great social revulsion.
Conversely, the aforementioned Law also expressly provided certain guarantees to the accused, such as a custody hearing within 24 hours, for example.
What changes were made to the legislation with the anti-crime package?
Among the new developments, the Anti-Crime Law increased the maximum prison sentence from 30 to 40 years and also expanded the list of crimes considered heinous. Crimes such as genocide, robbery with restriction of the victim's freedom, and theft using explosives were included.
It limited the possibilities for progression to a less restrictive prison regime and parole; let's take a closer look at some of the changes:
Amendments to the Penal Code
Self-defense for protection: inclusion of a single paragraph in article 25 of the Penal Code – It is now considered legitimate self-defense for an agent who repels aggression or threats of aggression against victims taken hostage.
Robbery with the use of a bladed weapon: inclusion of article 157, § 2º -B of the Penal Code – It is important to emphasize here that this change was quite significant for the Brazilian legal system, as it reintroduces the use of a bladed weapon as an aggravating circumstance, since in 2018, the law (13.654/18) had amended the Penal Code and maintained only the use of a firearm as an aggravating circumstance.
Nature of Criminal Prosecution in Fraud Crimes: Inclusion of Article 171, § 5 of the Penal Code – The crime of fraud is now, as a rule, a public prosecution subject to a complaint. It's important to remember that there are exceptions, but here we will address the rule, which has been changed.
Increase in maximum prison sentence: amendment to article 75 of the Penal Code – Thus, the maximum time a convict can remain imprisoned has been increased to 40 years.
Amendments to the Code of Criminal Procedure
Creation of the Judge of Guarantees
It accompanies the introductory (and pre-trial) phase, acting in the investigation phase, monitoring for any potential illegality and possibly granting certain requests for information. Once the trial begins, the presiding judge takes over. The Supreme Federal Court, through ADI 6298, suspended the effectiveness of the Judge of Guarantees one day before the Anti-Crime Package came into effect.
Non-prosecution agreement
Article 28-A of the Code of Criminal Procedure – As previously mentioned in this article, with the inclusion of this provision, any conduct that falls under the Maria da Penha Law will not be eligible for a non-prosecution agreement.
Chain of Custody
Article 158-A of the CPP – It is a legal instrument that contains the entire chronological history of the criminal act, including its traces, and must be kept intact to ensure due process of law.
A judge cannot act on their own initiative during the course of an investigation.
Article 3-A of the CPP – The judge can no longer act without being prompted during the investigation phase; in this case, there needs to be a request from the Public Prosecutor's Office or a representation from the Police Authority. However, the effectiveness of this provision was suspended by Minister Luiz Fux in ADI 6198.
Pre-trial detention must be reviewed every 90 days.
Article 316, sole paragraph of the CPP – This provision allows for the reassessment of pretrial detention every 90 days by the court that ordered the detention. Therefore, it will be analyzed whether or not it is necessary to maintain the detention, thus preventing unlawful arrests.
New case law on the crime
If you are a curious person and want to delve even deeper into this, or other topics, the STJ website has a compilation of theses on various subjects of your choice; just access the link here to learn more.
To further explore this topic, I have selected some important rulings where the Superior Court of Justice consolidated its jurisprudence:
4.1 – The 90-day period stipulated in the sole paragraph of Article 316 of the CPP for reviewing pretrial detention is not peremptory, so that any delay in carrying out the act does not imply automatic recognition of the illegality of the detention, nor the immediate release of the detainee. (Article 316, sole paragraph, of the CPP included by Law No. 13.964/2019.)
- AgRg in HC 697019/MG, Rapporteur Justice JOÃO OTÁVIO DE NORONHA, FIFTH PANEL, decided on 10/26/2021.
- HC 681066/MS, Rapporteur Justice ROGERIO SCHIETTI CRUZ, SIXTH PANEL, decided on 10/14/2021.
- AgRg in RHC 149999/RS, Rapporteur Justice ANTONIO SALDANHA PALHEIRO, SIXTH PANEL, decided on 10/05/2021.
- AgRg in RHC 145230/PR, Rapporteur Justice JESUÍNO RISSATO (Appellate Judge from the Federal District and Territories Court of Appeals), Fifth Panel, decided on 09/21/2021.
- AgRg in HC 637032/GO, Rapporteur Justice LAURITA VAZ, SIXTH PANEL, decided on 09/14/2021.
- AgRg in RHC 153144/MG, Rapporteur Justice REYNALDO SOARES DA FONSECA, FIFTH PANEL, decided on 09/21/2021.
4.2 The requirement of victim representation as a condition for proceeding with criminal action for fraud, introduced by Law No. 13.964/2019, does not apply to cases in which the indictment was filed before the entry into force of said law. (Article 171, § 5, of the Penal Code, included by Law No. 13.964/2019.)
- AgRg in HC 701937/SC, Rapporteur Justice REYNALDO SOARES DA FONSECA, FIFTH PANEL, decided on 11/16/2021.
- AgRg in HC 694991/SC, Rapporteur Justice OLINDO MENEZES (Appellate Judge from the Federal Regional Court of the 1st Region), Sixth Panel, decided on October 26, 2021.
- AgRg in HC 692063/RS, Rapporteur Justice JOEL ILAN PACIORNIK, FIFTH PANEL, decided on 10/19/2021.
- AgRg in EAREsp 1378944/RJ, Rapporteur Justice ROGERIO SCHIETTI CRUZ, THIRD SECTION, decided on 10/13/2021.
- AgRg in HC 650841/SC, Rapporteur Justice SEBASTIÃO REIS JÚNIOR, SIXTH PANEL, decided on 05/10/2021.
- AgRg in HC 594928/SP, Rapporteur Justice LAURITA VAZ, SIXTH PANEL, decided on 08/17/2021.
References
SELVA, LUANA. ANTI-CRIME PACKAGE: FIND OUT THE CHANGES AND WHAT'S IN EFFECT IN 2022! MARCO JEAN, 2022.
STJ. CASE LAW IN THESES. BRAZIL, 2022.
SILVA, DANILO ALVES. DISCOVER WHAT CHANGED WITH LAW 13.974: ANTI-CRIME PACKAGE. AURUM, 2022.
STJ. ANTI-CRIME PACKAGE: THE STJ'S INTERPRETATION IN THE FIRST YEAR OF THE NEW LAW'S EFFECTIVENESS. BRAZIL, 2021.