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Brazil: New Law Criminalizing Abuse of Authority Enacted

(Oct. 15, 2019) On September 5, 2019, Brazil’s president, Jair Bolsonaro, promulgated Law No. 13,869 (Lei No. 13.869, de 5 de Setembro de 2019), which provides for crimes of abuse of authority and amends and revokes other laws. President Bolsonaro had initially issued 19 vetoes that encompassed 36 provisions of the Law, and the National Congress subsequently overruled 18 of the vetoed provisions.

Law No. 13,869 defines crimes of abuse of authority as those committed by public agents who, in the exercise of their functions or under the pretext of performing them, abuse the power that has been conferred on them. The proscribed conduct must be done with the specific purpose of harming another person or benefiting themselves or others, or by mere whim or personal satisfaction. Divergence in the interpretation of the law or in the evaluation of facts and evidence does not constitute abuse of authority. (Art. 1.)

Under the new Law, public agents are defined to include anyone who exercises, even temporarily or without remuneration—by election, appointment, hiring, or any other form of investiture—a position or function directly or indirectly administering the powers of the Union, the states, the Federal District, the municipalities, and territory of Brazil. Such agents include civil and public servants; members of the legislative, executive, and judiciary powers; members of the Public Prosecution Office; and members of the courts or boards of auditors. (Art. 2.)

The Law determines the penalties for conviction under the Law to include indemnifying the offended party for damage caused by the crime, with the judge, at the request of the offended party, setting the minimum amount to repair the damage caused by the violation; and disqualification from the exercise of office, mandate, or public function, for a period of one to five years, or the loss of office, mandate or public function. The criminal punishments must be applied regardless of the applicable civil or administrative sanctions. (Arts. 4, 6.)

Articles 9 to 38 define the crimes that characterize abuse of authority and set the corresponding punishments.  Article 10, for example, provides that a public agent who, unreasonably or without prior summons, forces a witness or investigated person to appear in court may be punished with one to four years in prison and a fine.

The provisions of the Code of Criminal Procedure, and of Law No. 9,099 of September 26, 1995, which created special courts in the area of Federal Justice, apply to the prosecution of the offenses provided for in Law No. 13,869. (Art. 39.)

Law No. 13,869 is set to enter into force 120 days after its publication. (Art. 45.)