Abuse of Authority Law

Posted on Sep 9, 2024 in Law & Jurisprudence

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 sanction.

§ 1

The administrative sanction will be applied according to the severity of the abuse committed and will consist of:

  1. warning;
  2. reprimand;
  3. suspension from office, function, or by post within five to one hundred and eighty days, with a loss of salary and benefits;
  4. removal from office;
  5. resignation;
  6. dismissal in the interests of public service.

§ 2

The civil sanction, if the value of the damage cannot be fixed, will involve paying 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:

  1. a fine of one hundred to five thousand cruzeiros;
  2. detention for ten days to six months;
  3. loss of office and disqualification from any public function for 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 may be threatened off unattended or incidental, not being able to the accused to exercise functions of police or military in the city’s fault, by the length of one to five years.

Article 5

For the purposes of this law, a person is considered to be in a position of authority if they hold a position, employment, or civil service, whether civilian or military, even temporarily, without remuneration.

It is realized that it is the same concept of a public official in Art. 327 of the Criminal Code.

Criminal Code Article 327

For the purposes of criminal law, a public official is considered to be someone 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.

Article 5 CR/88 XXXIV

All are guaranteed, regardless of the payment of fees:

  1. the right to petition the Government in defense of rights or against illegal acts or abuse of power;
  2. the obtaining of certificates from government departments, to defend rights and clarify situations of personal interest.

Criminal Code Section 350

Order or perform 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 for the employee who:

  1. unlawfully receives and collects someone to prison, or establishment for the execution of a custodial penalty or security measure;
  2. extends the enforcement of sentences or security measures, leaving the ship in a timely manner or to immediately execute the order of freedom;
  3. subjects those who are under his custody or custody to shame or embarrassment not authorized by law;
  4. Effects, with abuse of power, any action.

Article 3

Constitutes an abuse of authority any attack:

  1. to freedom of movement;
  2. the inviolability of the home;
  3. the secrecy of correspondence;
  4. freedom of conscience and belief;
  5. the free exercise of religious worship;
  6. freedom of association;
  7. the rights and legal safeguards provided to the Office of the vote;
  8. the right of assembly;
  9. the physical safety of the individual;
  10. 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.

  1. 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

Sets the crime of Art. 151 of the Criminal Code (prevail). A minority believes it configures a crime of abuse of authority.

Violation of Telegraph, Telephone, or Radio-Electronic

Criminal Code Article 151

Devassa unduly 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:

  1. who unduly disclose, transmit to another person, or uses abusive radio-electronic or telegraphic communication addressed to the third, or telephone conversation 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:

  1. restrictions on the rights to:
    1. meeting, even if held within associations;
    2. secrecy of correspondence;
    3. secrecy of telegraph and telephone communications.

Article 139

In the presence of the state of siege decreed under Art. 137, I may only be taken against individuals the following steps:

  1. obligation to remain in specific locations;
  2. detention in a building not intended for persons accused or convicted of common crimes;
  3. 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;
  4. suspension of freedom of assembly;
  5. search and seizure;
  6. intervention in public service companies;
  7. requisitioning of property.

Sole Paragraph. Not included in the restrictions of section III of the broadcasting of statements made by Congressmen in their Legislative Houses, if authorized by its Bureau.

Section 2

At any stage of criminal prosecution are allowed, without prejudice to those already provided by law, the following investigation procedures and training of evidence:

  1. Access to data, documents, and tax information, banking, financial, and electoral.

Article 7 The Rights of the Lawyer

(…)

  1. the sanctity of your office or workplace, as well as his work tools, its written correspondence, electronic, telephone, and telematics, since on the practice of law,
    (
    § 6 Gifts evidence of authorship and materiality of the commission of a crime by a lawyer, the judicial authority may declare a breach of the inviolability of that in item II of the caput of this article, a justified decision, issuing the search warrant and seizure, specific and detailed to be completed in the presence of a representative of 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 is the inviolable conscience and belief, being guaranteed the free exercise of religious cults and guaranteeing, as provided by law, the protection of places of worship and their rites.

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 to 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 standing to represent their members and out of court.

Of the Incriminating Criminal Types of Art. 4

Article 4

Also constitutes an abuse of authority:

  1. order or execute a form of deprivation of personal liberty without legal formalities or with abuse of power;
  2. subjecting a person under his custody or custody to shame or embarrassment not authorized by law;
  3. fails to report immediately to the courts to arrest or detention of a person;
  4. leave the judge to order the relaxation of unlawful arrest or detention that will be reported;
  5. lead to arrest and detain anyone it intends to pay bail, allowed in law;
  6. 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;
  7. refusing the warden or agent of the police authority receipt of consideration received under carceragem, costs, charges, or other expenses;
  8. the harmful act of honor and heritage of a natural or juridical person, when charged with abuse or misuse of power or without capacity;
  9. extend the implementation of temporary detention, sentences or security measure, failing to issue timely comply immediately or order freedom.

Note

To perform the apprehension of a child or adolescent without observing the legal provisions, characterized the violation of Art. 230 of the ECA.

Section ACE 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 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 does not only arrest, but who is under guardianship or custody. E.g., A person who waits to testify at the police station and is exposed to humiliation and embarrassment.

If it is against children and adolescents, Art. 232 of the ECA.

Section ACE 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, Art. 231 of the ECA. Note: In the case of ACE, it is a crime the failure to notify both the judge and the family or person designated by the offender.

ACE 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 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 incompetent judge, commit the crime of misuse of authority.

If it is against children and adolescents, Art. 231 of the ECA. Note: In the case of ACE, it is a crime the failure to notify both the judge and the family or person designated by the offender.

ACE 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.

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: Art 234 ECA.

Section ACE 234

Let the competent authority without just cause, to order the immediate release of children or adolescents, once aware of the illegality of the seizure:

Penalty – detention from six months to two years.

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.

LXVI CR/88 Article 5

No one will be taken to prison or held therein when the law admits to bail, with or without bail.

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

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.

The Act of Damaging the Reputation or Property of 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, and if the harmful act that occurs with misuse or abuse of power, or if practiced by someone who is not competent to practice the act.

Continue the Implementation of Temporary Detention, Sentences or Security Measure, 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, not configure the type studied herein, which is only temporary prison, pen, or a security measure. According to doctrine, configure the crime of Art. 4, b – Submit a person in custody to shame or embarrassment.

If practiced in the face of a child or adolescent Art 235 ACE.

Section ACE 235

Waive wrongly prescribed period in this Act for the benefit of the adolescent deprived of freedom:

Penalty – detention from six months to two years.

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.

on will be two years.