Crimes Against Public Administration and Public Finances
1. CRIMES AGAINST PUBLIC ADMINISTRATION
1.1. Species
Crimes committed by public officials; crimes committed by individuals; crimes against the administration of justice.
1.2. Crimes Committed by Public Officials
Crimes committed by public officials are called functional crimes. They are crimes related to the civil service. In the general classification of crimes, such crimes are included in the category of crimes themselves, because the law requires a specific feature of the active subject, a civil servant.
Functional crimes can be proper and improper. This functional division between the crimes should not be confused with the classification of the previous paragraph.
Proper functional crimes are those whose exclusion of the public official as an official makes the fact atypical. E.g., prevarication.
Improper functional crimes are those in which, excluding the quality of a public official, there will be disqualification for other types of crime. E.g., embezzlement, which happens to be theft. The doctrine calls this change “relative atypicality.”
The Code of Criminal Procedure provides a rite for the different crimes committed by public officials (Articles 513 to 518), in which there is a primary defense prior to receipt of the complaint.
1.2.1. Concept of public official
According to art. 327 of the Criminal Code: “It is a public official, for the purposes of criminal law, who, although temporarily or without pay, holds a position, employment or civil service.”
1.2.2. Foreign public official
Law 10467 of June 11, 2002, introduced in the Penal Code, in addition to articles 337 and 337-B-C, Article 337-D that takes care of the criminal concept of foreign public officials.
“Art 337-D. It is considered a foreign public official, for the purposes of criminal law, who, though temporarily or without pay, holds a position, employment or civil service in state bodies or diplomatic representations abroad. “
1.3. Causes of Increased Penalty – Article 327, § 2. Thereof, of the Penal Code
According to Article 327, § 2. Thereof, the causes of the Criminal Code to increase the penalty arising when the offender has:
- position in committee (position of trust);
- position of management or advisory organ of the direct, mixed-capital company, public company and a foundation established by the Government.
1.4. Tender Agent
An individual can answer for embezzlement in a competition of agents with a public official.
The individual must be aware and will (intent) in relation to the agent type, or should know that this has the condition of a public official. Otherwise, it becomes a liability, which is forbidden.
Background: According to art. 30 of the Penal Code are communicated to the circumstances of a personal nature when elements of the crime. Being a public official’s personal circumstances and elements of the crime.
If the individual does not know what the other is a civil servant, will respond with another crime. Example: theft.
2. Embezzlement
2.1. Felony embezzlement
Embezzlement-appropriation: art. 312, introduction, part one. Embezzlement-diversion: art. 312, introduction, second part. Embezzlement, theft: art. 312, § 1. º. Embezzlement by another error: art. 313.
2.2. Embezzlement guilty
The embezzlement manslaughter is described in Art. 312, § 2. Thereof, of the Penal Code.
2.3. General Considerations About All Types of Embezzlement
2.3.1. Legal Objectivity
The aim is to protect the integrity management (public property). These crimes are called crimes of improper conduct.
2.3.2. Active subject
Active subject is the public official.
2.3.3. Taxable
Taxpayer is the state, seen as the Public Administration. There may be a taxable secondary (private).
2.4. Embezzlement-appropriation
appropriate, public official, money, value, and mobile, public or private, due to post office, own or another’s advantage.
2.4.1. Objective elements of type
The core is appropriate, ie, do your thing to others. The person has possession and starts to act like it’s owner. The agent changes its intention in relation to the thing.
The foundation is the lawful possession before.
In the case of possession by virtue of the position: in fact, possession is with the Administration. The well has to be under the custody of the Administration. Example: a car, seized on the street, go to the courtyard of the police station. A military policeman subtracts the tape. He practiced embezzlement, theft, because it had possession of the property.
If the employee was responsible for the well, would be the case of embezzlement-appropriation. If the car was in the street, it would be theft.
2.4.2. Material object
Money, valuables or personal property. Everything is still not admitted to the embezzlement. The crime is still admits embezzlement.
Movable in the criminal law has a broader concept than in civil law, as is everything that one can carry.
Value is something that has economic value.
Q: A public official using other employees reporting to service in the particular set embezzlement?
A.: No. Employee is not value, money or chattel. It is beyond the material object. It can be administrative malfeasance (embezzlement).
Q: What if the agent is a mayor?
A: We left the Criminal Code and then go to the Decree No 201/67 (art. 1. º, inc. II) that typifies the conduct of the mayor who uses a public official.
2.4.3. Consummation
The consummation of embezzlement-appropriation occurs when the appropriation has occurred: when the agent reversed the animus, when she began acting as if he owned.
2.4.4. Attempt
It is theoretically possible, but in practice it is difficult to prove.
Q: The crime of embezzlement practices trustee-ownership?
A: No, his crime is embezzlement because it is not official. The same is said in relation to the executor and the legal custodian.
2.5. Embezzlement, misappropriation
The embezzlement, misappropriation occurs when the particular good is in the custody of Public Administration.
2.5.1. Material object
Particularly well in the possession of Public Administration.
Malpractice means misuse.
Q: Someone has to make a deposit in court and is attended by an employee who tells him to leave the money himself, an official will make the deposit. The employee takes possession of the property. What crime has he committed?
A: It is not embezzlement, because the money was not held by the administration. He practiced embezzlement.
Q: If the victim to give the money to the employee because the bank has closed and the employee takes ownership of the importance which the crime committed?
A: There is a case of embezzlement or of fraud because there was no ownership by the public, is indeed the case of misappropriation.
Q: An employee of the City was without salary for three months. He borrows money from City Hall. What a crime committed?
A. Embezzlement-ownership because the property is public and was held by the employee.
2.6. Embezzlement-diversion – Article 312, Part of the Criminal Code
In embezzlement, misuse what changes is only the conduct that happens to be away.
Divert the purpose is to change the destination.
Example: there is a contract that provides for payment of a work by a certain value. The employee pays this amount, without the work being performed. In this case there is embezzlement, diversion.
Release of money for overpriced work is also the case of embezzlement, diversion.
3. Concussion – ARTICLE 316 OF THE CRIMINAL CODE
“Demand for themselves or others, directly or indirectly, though out of position or take it before, but because of her undue advantage:
Penalty – imprisonment of 2 (two) to 8 (eight) years and fine. “
The crime of extortion is different from the crime of bribery. The difference is at the core of any kind. A concussion is to conduct claim, is a “must want”, which brings with it a threat, even implied. Passive corruption is to conduct solicit, receive, accept promise.
In concussion, there are victims on the other end.
A concussion is an extortion by a public officer by reason of the function.
Require means to coerce, compel.
The threat may be implicit or explicit, and still be concussion.
The agent may require directly or indirectly – through a third party, or by other means, for example, veiled threat.
3.1. Legal Objectivity
Protecting administrative probity.
4. PASSIVE CORRUPTION – ARTICLE 317 OF THE CRIMINAL CODE
“Request or receive, for himself or others, directly or indirectly, yet outside the function or prior to assume it, but because of it, undue advantage, or promise to accept such an advantage:
Penalty – detention of 1 (a) to 8 (eight) years and fine. “
In passive corruption there is no threat, or embarrassment.
4.1. Objectives Elements Type
Ask, ask. Who asks no constrains, no threat, just ask. The attitude of the initiative is to ask a public official.
Receive, enter the office. We need an indication that the person came into possession effectively.
Accept promise, along with the proposal. It may be silence, gesture, word. The third initiative is one that makes the proposal. Someone proposes and the employee accepts.
Q: Whenever bribery will be the crime of bribery?
A.: No. In the conduct of requests, when, for example, asks the employee and the particular does not only bribery occurs.
. Prevarication – ARTICLE 319 OF THE CRIMINAL CODE
“Delaying or abstain from doing, wrongfully, any official act or practice it against an express provision of law, to satisfy personal interests or feelings:
Penalty – detention of 3 (three) months to 1 (one) years and fine. “
The self-interest or personal feeling is what differentiates the malfeasance and corruption of the concussion. It is a subjective element type.
Where undue advantage of the crime is extortion or corruption.
Where the personal feeling is the crime of prevarication.
The dishonesty is a crime subsidiary – the undue advantage may lie in prevarication.
Here you must understand personal feelings as feelings of love, hate, anger, revenge, friendship and enmity.
Q. interest or feeling, can benefit the third person?
A: Yes, you can be a personal interest and help the third. The benefit, in dereliction of duty, may be the third person.
Q: Laziness or sloppiness can be covered by the prevarication?
A: The mere laziness does not constitute misconduct.
Re-entry of foreigners expelled
Article 338 – Rejoin the country abroad that it was expelled:
Penalty – imprisonment from one to four years, subject to expulsion after the new sentence.
ASSETS SUBJECT: Foreign
LIABILITIES SUBJECT: State
CONSUMMATION: with the entry of the expelled.
ATTEMPT: it is assumed
Slanderous denunciation
Article 339. Give rise to the establishment of police investigation, judicial process, establishment of administrative investigation, inquiry or civil action against any improper conduct, charging the crime of which you know the innocent:
Penalty – confinement from two to eight years and a fine.
§ 1 – The penalty is increased by the sixth part, if the agent makes use of anonymous or assumed name.
§ 2 – The penalty is halved if the allocation is the practice of a misdemeanor.
ASSETS SUBJECT: anyone can do it
LIABILITIES SUBJECT: State
Consummation:
- With the first act of criminal investigation
- With the receipt of the complaint or grievance in the case of litigation
- With the issuance of decree instituting civil investigation by the agency of the MP
- With the filing of civil action for improper conduct.
ATTEMPT: possible
Communication false crime or misdemeanor
Article 340 – Provoking the action of authority, communicating to it the occurrence of crime or misdemeanor that knows not taken place:
Penalty – detention of one to six months or a fine.
Consummation: the investigation of the authority
ATTEMPT: admissible
Self-accusation false
Section 341 – to accuse, before the authority, or non-existent crime committed by others:
Penalty – detention from three months to two years or a fine.
CONSUMMATION: when the event comes to knowledge of the authority, but not take any step (crime formal)
ATTEMPT: admissible
Perjury or false expertise
Article 342. Making false statement, or deny or silence the truth as a witness, expert, accountant, translator or interpreter in judicial proceedings, or administrative, police investigation, or arbitration:
Penalty – imprisonment from one to three years and fine.
§ 1 The penalties increase is one-sixth to one third if the crime is committed in exchange for bribes or made in order to obtain evidence intended to take effect in criminal or civil case in which the entity is part of the administration direct or indirect public.
§ 2 The fact is no longer punishable if, before sentencing in the case where the tort occurred, the agent takes back or declare the truth.
Consummation: the end of testimony in which he uttered the statement was false or with the refusal or omission of fact or, in the case of false expertise, with the delivery of the report (Crime formal)
ATTEMPT: admissible in (crime unissubsistente)
Bribery of a witness
Article 343. Give, offer or promise money or other advantage to any witness, expert, accountant, translator or interpreter, for making false statement, deny or silence the truth in testimony, expertise, calculation, translation or interpretation:
Penalty – imprisonment from three to four years and fine.
Sole Paragraph. The penalties increase is one-sixth to one third if the crime is committed in order to obtain evidence intended to take effect in criminal or civil case that is part of the general government agency directly or indirectly.
Consummation: the offer or promise (crime formal)
ATTEMPT: admissible
Coercion in the course of the process
Article 344 – Use of violence or serious threat, in order to favor its own interests or others, against authority, party, or any other person who works or is called to intervene in the judicial process, police or administrative or arbitration:
Penalty – imprisonment from one to four years and a fine in addition to the penalty corresponding to violence.
Consummation: the threat or violence, regardless of achieving the objective pursued by the agent (crime formal).
ATTEMPT: it is assumed
Arbitrary exercise of their own reasons
Section 345 – Making law into their own hands, to satisfy claims, while legitimate, unless the law allows:
Penalty – imprisonment of fifteen days a month, or fine, in addition to the penalty corresponding to violence.
Sole Paragraph – If there is no use of violence, will be brought by complaint.
CONSUMMATION: through the use of enforceable, even if the agent does not satisfy its claim (formal crime). There is understanding in the sense that crime is material.
ATTEMPT: admissible
NOTE:
- Infringement of lower offensive potential;
- Only the individual may appear as an active subject, because when the public official invested in this condition, commits an abuse of authority. (Law 4.898/95) or excessive exaction (Art. 316, § 1, the CP).
Subtype of the arbitrary exercise of one’s own reasons
Article 346 – Taking, removing, destroying or damaging thing itself, which lies in the hands of a third court order or agreement:
Penalty – detention from six months to two years and fine.
CRIMES AGAINST PUBLIC FINANCES
LEGAL OBJECTIVITY: probity of public administration, with regard to state finances.
CRIMINAL ACTION:
All crimes of this title are unconditioned public action.
NOTES
- They are crimes themselves
- Many of the criminal conduct punishable in the new devices also configure and administrative tort, providing for punishment of these orbits, through the filing of civil lawsuits of improper conduct (Law 8.429/92).
Hiring credit operation
Article 359-A. Sort authorize or perform credit, internal or external, without prior legislative authorization:
Penalty – imprisonment from 1 (a) to 2 (two) years.
Sole Paragraph. Liable to the same penalty who orders, authorizes or conducts credit operations, internal or external:
I – in breach of limit, condition or amount prescribed by law or by resolution of the Senate;
II – when the consolidated debt amount exceeds the maximum allowed by law.
CONSUMMATION: Crime mere conduct
TRY: It is only appropriate in the form “perform”
NOTES:
Article 29, III, LC No 101/2000:
“Credit operation: financial commitment resulting from a mutual, open credit, issuance and acceptance of securities, financed purchase of goods, anticipated values from forward sales of goods and services, leasing and similar operations, including with the use of financial derivatives; “
Registration of charges not committed to outstanding commitments
Section 359-B. Order or authorize the registration of outstanding commitments, expenditure which has not previously been committed or that exceed limits established by law:
Penalty – detention of 6 (six) months to 2 (two) years.
CONSUMMATION: with the entry into force of the order for registration or authorization of expenditure on outstanding commitments
ATTEMPT: inadmissible
NOTES:
- Remains to pay the costs are borne by the public administrator to be paid from the next budget.
Assumption of duty last year in office or legislature
Section 359-C. Order or authorize the assumption of obligation in the last two quarters of last year in office or legislature, whose spending can not be paid the same fiscal year or, if part remains to be paid the following year, that does not have the availability of sufficient counterpart box:
Penalty – imprisonment from 1 (a) to 4 (four) years.
Consummation: the order or authorization of undue assumption of obligation within the period provided for in art. 359-C
ATTEMPT: not admitted.
NOTES:
- Fiscal Responsibility Law (Art. 42)
Ordering unauthorized spending
Section 359-D. Sort expenses not authorized by law:
Penalty – imprisonment from 1 (a) to 4 (four) years.
CONSUMMATION: when issuing the administrative act that establishes the order (the crime of mere conduit)
ATTEMPT: unfeasible
NOTES:
- The law authorizing the ordination of expenditure in each financial year is the annual budget law and also the Budget Guidelines Law and the multi-annual plan.
Gracious provision of security
Section 359-E. Provide collateral in credit operations without having been made in counter value equal to or greater than the value of the guarantee, as provided by law:
Penalty – detention of 3 (three) months to 1 (one) year.
CONSUMMATION: with granting the guarantee, in terms of type (mere breach of conduct)
ATTEMPT: inadmissible
NOTES:
No-LC 101/2000, art. 40, caput, and § 1.
No cancellation of outstanding commitments
Section 359-F. Failure to order, authorize or encourage the cancellation of the amount of outstanding commitments entered in value than those permitted by law:
Penalty – detention of 6 (six) months to 2 (two) years.
CONSUMMATION: with the omission, according to type.
ATTEMPT: incabível
Increase in total personnel expenditures in the last year of office or legislature
Section 359-G. Sort authorize or perform an act which leads to an increase in total personnel expense, in one hundred eighty days before the end of the mandate or the legislature:
Penalty – imprisonment from 1 (a) to 4 (four) years.
CONSUMMATION: with the expedition of the act that results in increased total expenditure person, to take effect in the last 180 days in office or legislature.
ATTEMPT: impractical, except in the mode “Run.”
Public offering or placement of securities market
Section 359-H. Sort authorize or promote the public offering or placement of securities in the financial market debt without having been created by law or without being registered in a centralized system settlement and custody:
Penalty – imprisonment from 1 (a) to 4 (four) years.
Consummation: the drafting of the administrative act in the conduct of “order” or “authorize”.
ATTEMPT: incabível, except in the act of promoting.
NOTES:
The issuance of public debt in the financial market requires under the law, previous legal creation or proper registration in a centralized system settlement and custody.