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Brazil: New Anti-Terrorism Law Enacted

(Apr. 15, 2016) On March 16, 2016, Brazil enacted Law No. 13,260 to regulate section XLIII of article 5 of the Constitution, on terrorism. (Lei No. 13.260, de 16 de Março de 2016, PLANALTO; Constituição Federal [C.F.] (1988, as amended through Feb. 18, 2016), PLANALTO.) Section XLIII states that the law will regard the practice of torture, illicit trafficking in narcotics and similar drugs, terrorism, and those crimes defined as heinous as not subject to bail, clemency, or amnesty.  Liability for these crimes extends to individuals giving the commands for such acts, those executing these commands, and those failing to avoid the commission of these crimes although able to do so.  (Id.)

Definition of Terrorism and Acts of Terrorism Under the New Law

Article 2 of the new Law No. 13,260 defines terrorism as the practice by one or more individuals of the certain enumerated acts for reasons of xenophobia; discrimination; or prejudice in regard to race, color, ethnicity, or religion, when committed for the purpose of causing social or generalized terror and exposing persons, property, public peace, or public safety to danger. (Lei No. 13.260.) Law No. 13,260 defines acts of terrorism as:

I – to use or threaten to use, carry, keep, possess or bring explosives, toxic gases, poisons, biological content, chemical, nuclear or other means capable of causing damage or promote mass destruction;

II and III [vetoed];

IV – to sabotage the functioning of or to seize with violence, by means of posing a serious threat to persons, or through making use of cybernetic mechanisms the total or partial control, albeit on a temporary basis, of means of communication or transportation; ports; airports; railways or bus stations; hospitals; nursing homes; schools; sports stadiums; public facilities or places where essential works of public services are performed; facilities for the generation or transmission of energy; military installations; facilities for the exploration, refining, and processing of oil and gas; and bank institutions or their service network;

V – to make an attempt against the life or physical integrity of a person. (Id. art. 2(§1).)

Punishment for Terrorist Acts

According to article 2(§ 2) of Law No. 12,36013,260, the abovementioned acts of terrorism will be punished upon conviction with 12 to 30 years in prison, which can be increased by the punishments elsewhere prescribed for threats and acts of violence. (Id. art. 2(§2).)

Promotion of and Preparation for Terrorism

In addition, whoever promotes, creates, takes part in, or provides assistance to, in person or through an intermediary, a terrorist organization will be punished upon conviction with five to eight years in prison and a fine (id. art. 3).  Whoever performs acts to prepare for acts of terrorism will receive the same punishment, which can be reduced by one-quarter to one-half of the punishment under circumstances not defined in the Law.  (Id. art. 5.)

Terrorist Recruitment and Training

The same punishment of five to eight years’ imprisonment and a fine applies to those who, for the purpose of practicing acts of terrorism, recruit, organize, transport, or equip with ammunition individuals traveling to a country other than that of their residence or nationality or who provide or receive training in a country other than that of their residence or nationality. (Id. art. 5(§1).)

Terrorist Financing

Receiving, providing, offering, obtaining, storing, keeping on deposit, requesting, or investing in any way (directly or indirectly) resources, assets, property, rights, valuables or money, or services of any kind for the planning, preparation, or execution of the crimes established in Law No. 13,260 will result in a sentence of 15 to 30 years in prison upon conviction. (Id. art. 6.)  Whoever offers or receives, obtains, stores, keeps on deposit, requests, invests or otherwise contributes to the acquisition of assets or financial resources, in order to fund, in whole or in part, a person, group of people, association, organization, or criminal organization whose principal or secondary activity, even if occasionally, is the crimes set forth in Law No. 13,260 will incur the same punishment.  (Id. art. 6 (sole para).)

Criminal Investigation of Terrorist Acts

For all legal purposes, it is considered that the criminal offenses established in Law No. 13,260 are committed against the interests of the Union.  The Federal Police have jurisdiction to proceed with the appropriate criminal investigation, and the federal courts have jurisdiction to process the offenses under item IV of article 109 of the Constitution. (Id. art. 11; C.F., art. 109(IV).)

Provided that there is enough evidence of a crime established in conformity with Law No. 13,260, a judge may, ex-officio, at the request of the Public Prosecutor’s Office or of the chief of police, in the course of the investigation or a prosecution, order the sequestration of the goods, rights, or valuables of the person being investigated or accused, or of intermediaries, that are the instrument, product, or gains of the crimes established in Law No. 13,260.  (Id. art. 12.)

For the investigation, prosecution, and trial of the crimes established in Law No. 13,260, the provisions of Law No. 12,850 of August 2, 2013 (Lei No. 12.850, de 2 de Agosto de 2013, PLANALTO), which defines, inter alia, criminal organization, criminal investigation, and gathering of evidence, and of Law No. 8,072 of July 25 1990 (Lei No. 8.072, de 25 de Julho de 1990, PLANALTO), which provides for punishment of heinous crimes, are also applicable. (Law No. 13,260 arts. 16 & 17.)