Crimes Against the Administration of Justice in Brazil

Posted on Dec 14, 2024 in Law & Jurisprudence

Crimes Against the Administration of Justice: Articles 338, 339, and 340 of the Brazilian Penal Code

Article 338: Reentry of Expelled Foreigner

The crime defined in Article 338 of the Penal Code considers the following items:

  1. Crime Art. 338 CP is a crime itself. Correct, only an expelled foreigner can practice it.
  2. The factual premise of its configuration is the effective expulsion of the foreigner from the country. Correct.
  3. It is consummated with the simple reentry of the alien, i.e., entry into national territory. Correct.
  4. It is similar in type to the crime of disobedience. Correct.
  5. There will be a crime even if the alien is not aware of their expulsion. Wrong. Knowledge is required; otherwise, it configures an error regarding the illegality (error type).

Article 339: Slanderous Denunciation

Judge the following items regarding the crime of slanderous denunciation – Article 339 of the Penal Code:

  1. In slanderous denunciation of the crime, besides the effectiveness and usefulness of the administration of justice, there is also the protection of honor and dignity of the person complained of, as well as secondary legal. Correct.
  2. The crime in question cannot be committed by public officials since they have a duty to denounce the practice of any crime. Wrong.
  3. To give cause means to motivate, lead, or bring to the knowledge of facts that could cause the authority to initiate an investigation or procedure. Correct.
  4. In the crime, the agent is attributed to giving cause for the establishment of a civil public investigation. Wrong.
  5. The agent practices a crime, even having doubts about the veracity of the fact, and assumes the risk of falsely denouncing it. Wrong. Intent must be straightforward.
  6. There will be a crime even if the act is attributed to an unspecified or unknown person. Wrong.
  7. The crime can be charged as guilty when the circumstances show that the agent could devise and know that the fact was false. Wrong.
  8. In slanderous denunciation, the agent causes the initiation of police investigations or criminal proceedings against the victim, while in libel (Article 138 PC), there is just simply a false attribution in fact defined as a crime. Correct.
  9. Slander (Article 138 PC) may be covered by slanderous denunciation, a greater crime if both result from a single imputation deemed false. Correct.
  10. A lawyer who endorses the application for the establishment of a police investigation involving his client about a fact that he knows to be false is not, under any circumstances, subject to the penalties of slanderous denunciation because he acts to fulfill the mandate. Wrong.
  11. Anonymity or false identity of the complainant does not interfere with the enforcement of the sentence. Wrong, it is a special cause for an increased penalty.
  12. Slanderous denunciation is privileged if the alleged fact consists of a misdemeanor, a kind of violation, as it is also subject to police investigation. Correct.

Article 340: False Reporting of a Crime or Misdemeanor

The crime in Article 340 of the Penal Code, false reporting of a felony or misdemeanor, considers the following:

  1. The typical behavior is to cause or give rise to the action of authority, falsely communicating the occurrence of a crime. Correct, but it lacks a misdemeanor.
  2. Authority is considered to be the police, judiciary, prosecutors, or any administrative authority with powers to cause the functional activities of those, including the military police. Correct.
  3. It is an assumption of the falsity of crime reporting. Correct.
  4. The means can be verbal, written, or any effective means. Correct.
  5. A person commits a crime who causes the transcription of a police report on a false fact. Correct.
  6. If, because of false reporting to the police authority, a police investigation is established by ordinance, the crime of art. 340 of the Penal Code has occurred. Correct. Whoever commits the crime causes it.
  7. The crime is consummated when the public authority practices any action as a result of false reporting, even performing only some steps. Correct.
  8. A person commits a crime who, in order to defraud the insurer, falsely informs that his vehicle was stolen, without prejudice to property crime. Correct (171 V).
  9. A person commits a crime who, when selling a car, gets a bad check and records a police report stating that his car was stolen. Correct.

Procedural Fraud

The author of procedural fraud has doubled the penalty if the practice is pending:

  • Civil proceedings
  • Tax proceedings
  • Criminal proceedings
  • Administrative proceedings
  • Labor proceedings

Crimes Against the Administration of Justice

Regarding crimes against the administration of justice, it is correct to say that:

  1. Slanderous denunciation can be set with the practice of charging a misdemeanor. Correct.
  2. For the characterization of the crime of perjury, it is essential to check if the false testimony exerted influence on the decision of the case. Wrong.
  3. In the crime of coercion under the process, the consummation occurs if and when the agent achieves the desired goal. Wrong.
  4. A noble motivation is a cause of crime in the exclusive self-accusation false. Wrong.
  5. The crime of personal favoritism is only configured when there is already a criminal prosecution against him in motion. Wrong.
Case Study: Mariana Severus and Armenia Santa

Mariana Severus, with the purpose not only to offend the honor of her neighbor, Armenia Santa, but also to encroach on their freedom, requested the establishment of a police investigation to determine the subtraction of a hairdryer and a gold ring, falsely attributing to him the authorship of the theft. After the police investigation, it was shelved for lack of absolute fact. Mariana’s conduct can be typified in that offense?

Justification: It could be typified as a crime of slanderous denunciation, as she initiated an investigation by charging a crime she knows the person to be innocent of.

Slanderous Denunciation: Further Considerations
  1. It consists of giving rise to the establishment of a police investigation, judicial process, the establishment of an administrative investigation, civil investigation, or administrative action for misconduct against anyone, imputing to him the crime of which he knows to be innocent. Correct.
  2. It consists in triggering the action of authority, informing him of the occurrence of a crime or misdemeanor that had not been known. Wrong because it would be a false reporting of a crime or misdemeanor.
  3. The sentence is increased by half if the agent makes use of an anonymous or assumed name. Wrong. The penalty is increased by one-sixth, not half.
  4. The sentence is reduced by one-sixth if the allocation is the practice of a misdemeanor. Wrong. In this case, it is reduced by half.