Código Penal Brasileiro

Brazilian Criminal Code
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The penal code in force in Brazil was created by decree-law nº 2,848, of December 7, 1940, by the then president Getúlio Vargas during the Estado Novo period, with Francisco Campos as justice minister. The current code is the 3rd in the history of Brazil and the longest in force, the previous ones were from 1830 and 1890.

Despite its creation in 1940, the current Code only entered into force on January 1, 1942 (Article 361).

The Code originated in a project by Alcântara Machado, submitted to the work of a review committee composed of Nelson Hungria, Vieira Braga, Narcélio de Queiroz and Roberto Lira. There are historical references to the collaborations of Minister Antônio José da Costa e Silva and, in part of the editorial review, of Abgar Renault, but these were not a direct part of the referred commission.

The interpretation of the Penal Code in the light of the Federal Constitution reveals the following basic principles: legality, due process of law, culpability, harmfulness, proportionality, individualization, humanization and social value of the penalty, subsidiarity, fragmentation. Finally, Brazilian criminal law is a barrier to the individual's defense in the face of the State's punitive power.

The replacement of the Penal Code was attempted by Decree-Law No. 1,004, of October 21, 1969, but the criticisms were so great that it was substantially modified by Law No. 6,016, of December 31, 1973. Despite several postponements for the beginning of its validity, it was revoked by Law No. 6.578, of October 11, 1978.

After the failure of a major overhaul of the penal system, on November 27, 1980 a commission was set up to draft a bill to reform the General Part of the Criminal Code of 1940. This commission was chaired by Francisco de Assis Toledo and its members were: Miguel Reale Júnior, Francisco Serrano Neves, Renê Ariel Dotti, Ricardo Antunes Andreucci, Rogério Lauria Tucci and Helio Fonseca.

From the committee's debates and legislative amendments, Law No. 7,209, of July 11, 1984, made the amendments to the General Part, coming into force six months after the date of publication.

Although it is a relatively extensive statute, the Penal Code (Fundamental Criminal Law) does not exhaust all criminal matters provided for in Brazilian law. There are an extraordinary number of special criminal laws (Supplementary Criminal Law).

It urges to emphasize the last amendment made to the Penal Code, which is the edition of Law 12.015/2009, which deals with "sexual crimes". The theme was, for the most part, modified, with some crimes being extinguished from the code while having their own typification, as an example, art. 214, which dealt with the indecent assault, which has now been absorbed by the capitulation of the article that defines rape.