Abuse of Authority Law
Article 1
The right of representation and the process of administrative, civil, and criminal liability against authorities who commit abuses in exercising their duties are regulated by this law.
Article 6
The abuse of authority will subject the offender to civil, administrative, or criminal sanctions.
§ 1
The administrative sanction will be applied according to the severity of the abuse committed and will consist of:
- a) warning;
- b) reprimand;
- c) suspension from office, function, or post within five to one hundred and eighty days, with loss of salary and benefits;
- d) removal from office;
- e) resignation;
- f) dismissal in the interests of public service.
§ 2
The civil sanction, if the value of the damage cannot be fixed, will involve the payment of an indemnity of five hundred to ten thousand dollars.
§ 3
The penalty will be applied in accordance with the rules of Articles 42-56 of the Criminal Code and consist of:
- a) a fine of one hundred to five thousand cruzeiros;
- b) detention for ten days to six months;
- c) loss of office and disqualification from any public function for a period of up to three years.
§ 4
The penalties prescribed above may be implemented standalone or cumulatively.
§ 5
When the abuse is committed by agents of the police authority, civil or military, in any category, one unattended or incidental threat may be made, not allowing the accused to exercise police or military functions in the city of the offense for a period of one to five years.
Article 5
For the purposes of this law, authority is considered to be anyone who holds a position, employment, or civil service, whether civilian or military, even temporarily or without remuneration.
It is the same concept of a public official as in Article 327 of the Criminal Code.
Criminal Code Article 327
For the purposes of criminal law, a public official is considered to be anyone who, although temporarily or without pay, holds a position, employment, or public service.
§ 1
Equivalent to a public official is someone who holds a position, job, or function in a parastatal entity and who works for the company providing the service or the private contractor to perform the typical activity of the Public Administration.
Article 12
The prosecution will be initiated, regardless of the justification for police investigation or prosecution of the complaint, accompanied by the representation of victims of abuse.
Constitution of the Federative Republic of Brazil (CR/88) Article 5, XXXIV
Everyone is guaranteed, regardless of the payment of fees:
- a) the right to petition the Government in defense of rights or against illegal acts or abuse of power;
- b) the obtaining of certificates from government departments, to defend rights and clarify situations of personal interest.
Criminal Code Section 350
Ordering or performing a measure involving deprivation of liberty without legal formalities or with abuse of power:
Penalty – detention of one month to one year.
Sole paragraph – The same penalty applies to the employee who:
- unlawfully receives and collects someone to prison or an establishment for the execution of a custodial penalty or security measure;
- extends the enforcement of sentences or security measures, leaving the ship in a timely manner or failing to immediately execute the order of freedom;
- subjects those who are under his custody or custody to shame or embarrassment not authorized by law;
- Effects, with abuse of power, any action.
Article 3
Abuse of authority constitutes any attack on:
- a) freedom of movement;
- b) the inviolability of the home;
- c) the secrecy of correspondence;
- d) freedom of conscience and belief;
- e) the free exercise of religious worship;
- f) freedom of association;
- g) the rights and legal safeguards provided to the Office of the vote;
- h) the right of assembly;
- i) the physical safety of the individual;
- j) the rights and legal safeguards provided to professional practice. (Included by Law No. 6657 of 05/06/79)
CR/88 – Article 5 – XI
The home is the inviolable asylum of the individual; no one may enter without the consent of the dweller, except in case of flagrante delicto or disaster, or to give help, or during the day, by court order.
- a) CR/88 – Art 5 – XI – the home is the inviolable refuge of the individual; nobody may enter it without the resident’s consent, except in case of flagrante delicto or disaster, or to provide relief, or during the day, by judicial determination.
Violation of correspondence can be breached in exceptional cases by applying the principle of proportionality or reasonableness. This is not an absolute guarantee.
Violation of Telegraph or Radio-Electronic Communication
Sets the crime of Criminal Code Article 151 (prevail). A minority believes it configures the crime of abuse of authority.
Violation of Telegraph, Telephone, or Radio-Electronic Communication
Criminal Code Article 151 – Unduly investigating the contents of sealed correspondence addressed to others:
Penalty – detention of six months or a fine.
Withholding or Destruction of Mail
§ 1
The same penalty applies to:
- who unduly discloses, transmits to another person, or uses abusive radio-electronic or telegraphic communication addressed to a third party, or telephone conversations among others.
Article 136 § 1
The decree instituting a state of defense determines the length of its duration, specifies the areas to be covered, and indicates, on the terms and limits of law, the coercive measures to force from among the following:
- restrictions on the rights to:
- a) meeting, even if held within associations;
- b) secrecy of correspondence;
- c) secrecy of telegraph and telephone communications.
Article 139
In the presence of the state of siege decreed under Article 137, I, only the following steps may be taken against individuals:
- obligation to remain in specific locations;
- detention in a building not intended for persons accused or convicted of common crimes;
- the restrictions on the inviolability of correspondence, the secrecy of communications, the provision of information and freedom of the press, radio, and television, according to the law;
- suspension of freedom of assembly;
- search and seizure;
- intervention in public service companies;
- requisitioning of property.
Sole Paragraph: Not included in the restrictions of section III are the broadcasting of statements made by Congressmen in their Legislative Houses, if authorized by its Bureau.
Section 2
At any stage of criminal prosecution, the following investigation procedures and training of evidence are allowed, without prejudice to those already provided by law:
- Access to data, documents, and tax, banking, financial, and electoral information.
Article 7 – The Rights of the Lawyer
- II – the sanctity of your office or workplace, as well as his work tools, its written, electronic, telephone, and telematics correspondence, since on the practice of law.
§ 6
If evidence of authorship and materiality of the commission of a crime by a lawyer is presented, the judicial authority may declare a breach of the inviolability of that in item II of the caput of this article, by a justified decision, issuing the search warrant and seizure, specific and detailed to be completed in the presence of a representative of the Brazilian Bar Association (OAB), and in any event, prohibited the use of documents, media, and objects belonging to clients of the lawyer examined, as well as other working tools which contain customer information.
CR/88 Article 5 VI
Freedom of conscience and belief is inviolable, being guaranteed the free exercise of religious cults and guaranteeing, as provided by law, the protection of places of worship and their rites.
- a) Attempt to freedom of association: associations, provided for lawful purposes, have constitutional protections. Associations are prohibited and illegal paramilitary.
CR/88 Article 5
- XVII – full freedom of association for lawful purposes, prohibited any paramilitary;
- XVIII – the creation of associations and, according to the law, that of cooperatives authorization, being forbidden state interference in their functioning;
- XIX – associations may only be compulsorily dissolved or have their activities suspended by court order, requiring it in the first case, the res judicata;
- XX – no one can be compelled to join or remain associated;
- XXI – the associations, when expressly authorized, have legal standing to represent their members judicially and extrajudicially.
1) Of the Incriminating Criminal Types of Article 4:
Article 4
Also constitutes an abuse of authority:
- a) order or execute a form of deprivation of personal liberty without legal formalities or with abuse of power;
- b) subjecting a person under his custody or custody to shame or embarrassment not authorized by law;
- c) fails to report immediately to the courts the arrest or detention of a person;
- d) leave the judge to order the relaxation of unlawful arrest or detention that will be reported;
- e) lead to arrest and detain anyone it intends to pay bail, allowed in law;
- f) charging the jailer or officer of the police authority carceragem, costs, fees, or any other expense, provided that the collection has not supported in law, both as regards species or about its value;
- g) refusing the warden or agent of the police authority receipt of consideration received under carceragem, costs, charges, or other expenses;
- h) the harmful act of honor and heritage of a natural or juridical person, when charged with abuse or misuse of power or without capacity;
- i) extend the implementation of temporary detention, sentences, or security measures, failing to issue timely comply immediately or order freedom.
NOTE:
To perform the apprehension of a child or adolescent without observing the legal provisions is characterized as a violation of Article 230 of the Child and Adolescent Statute (ECA).
ECA Section 230
Depriving the child or adolescent of his freedom, proceeding to his arrest without being in flagrante delicto or there is no written authority of the judicial authority:
Penalty – detention from six months to two years.
Sole Paragraph: Relates to the same penalty that making the arrest without observance of legal formalities.
Caution:
The offense applies not only to those arrested but also to those who are under guardianship or custody. For example, a person who waits to testify at the police station and is exposed to humiliation and embarrassment.
If it is against children and adolescents, Article 232 of the ECA applies.
ECA Section 232
Refer a child or teenager under his authority, custody, or supervision to shame or embarrassment:
Penalty – detention from six months to two years.
If it is against children and adolescents, Article 231 of the ECA applies.
NOTE:
In the case of the ECA, it is a crime to fail to notify both the judge and the family or person designated by the offender.
ECA Article 231
Leave a police authority responsible for the arrest of the child or adolescent to make immediate notification to the competent judicial authority and the family of the seized or the person appointed by him:
Penalty – detention from six months to two years.
Warning:
The misuse of authority is set only if there is no communication to the judge. The lack of communication within the family or person specified by it did not constitute the type discussed herein.
If the delegate communicates purposefully to an incompetent judge, they commit the crime of misuse of authority.
If it is against children and adolescents, Article 231 of the ECA applies.
NOTE:
In the case of the ECA, it is a crime to fail to notify both the judge and the family or person designated by the offender.
ECA Article 231
Leave the police authority responsible for the arrest of the child or adolescent to make immediate notification to the competent judicial authority and the family of the person detained or indicated by him:
Penalty – detention from six months to two years.
a) Leave the Judge to order the relaxation of unlawful arrest or detention that will be provided:
It is a crime itself, can only be practiced by the courts.
If children or adolescents: Article 234 ECA.
ECA Section 234
Let the competent authority, without just cause, order the immediate release of children or adolescents, once aware of the illegality of the seizure:
Penalty – detention from six months to two years.
b) Bring to arrest and detain anyone it intends to pay bail, as permitted by law:
The provision of reasonable bail in the cases is a fundamental right of the individual. Can be made by the delegate or by the judicial authority.
CR/88 Article 5 – LXVI
No one will be taken to prison or held therein when the law admits to bail, with or without bail.
c) Collecting the warden or agent of the police authority carceragem, costs, fees, or other expenses, provided that the collection has no support in law, both in kind and in terms of its value:
d) Refuse the warden or agent of the police authority receipt of consideration received under carceragem, costs, fees, or other expense:
The doctrine means that there is no law imposing fees or custodial fees. So, understand that currently do not apply to points f and g. Configure concussion when the jailer requires some recovery, and passive corruption if requested.
e) The act of damaging the reputation or property of a natural or juridical person, when charged with abuse or misuse of power or without legal authority:
The harmful act of honor or property by itself is not a crime, but it is if the harmful act occurs with misuse or abuse of power, or if practiced by someone who is not competent to practice the act.
f) Continue the implementation of temporary detention, sentences, or security measures, leaving the ship in a timely manner or meet immediate order of freedom: (Included by Law No. 7960 of 21/12/89)
If an extended detention occurs, it does not configure the type studied herein, which is only temporary prison, pen, or a security measure. According to doctrine, it configures the crime of Article 4, b – Submitting a person in custody to shame or embarrassment.
If practiced against a child or adolescent, Article 235 ECA applies.
ECA Section 235
Waive wrongly the period prescribed in this Act for the benefit of the adolescent deprived of freedom:
Penalty – detention from six months to two years.
1) Prescription:
The law makes no provision on prescribing by applying alternative rules of the Penal Code. Thus, as the maximum penalty is six months, the prescription will be two years.