The Minister of Justice and Public Security, Ricardo Lewandowski, forwards this Wednesday (22) to the Civil House the Anti-Faction Bill, which toughens penalties and expands the mechanisms to combat criminal organizations in the country.
The proposal, which will still be analyzed by the National Congress, is one of the government’s main initiatives in confronting factions such as the Primeiro Comando da Capital (PCC) and militias.
The text increases the penalty for those who join, promote or finance a criminal organization from 3 to 8 years to 5 to 10 years in prison, without prejudice to punishments for other crimes committed by the group, such as trafficking, corruption or homicide.
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Qualified criminal organization
The proposal creates the figure of a “qualified criminal organization”, when there is territorial dominance or control of economic activities through violence or threat.
In these cases, the expected penalty will be 8 to 15 years in prison, and the crime will be classified as heinous, becoming non-bailable and without the possibility of pardon or amnesty.
In situations of homicide carried out at the behest of a qualified criminal organization, the penalty may reach 12 to 30 years of imprisonment, one of the highest in Brazilian criminal legislation.
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Causes of increased sentence
The text provides for an increase of two thirds up to double the sentence when there is:
• use of firearms or explosives;
• death or injury to security officers;
• involvement of children or adolescents;
• participation of public servants;
• criminal infiltration of tenders and contracts with public authorities;
• transnational operations, sending resources abroad.
These points reflect the government’s concern with the sophistication of the factions, which, according to recent investigations, have used companies and fintechs to launder money and participate in public tenders, as revealed by the Hidden Carbon operation, launched in August by the Federal Police and the Public Ministry of São Paulo.
Investigation and prevention measures
In addition to toughening sentences, the project provides for new investigative tools, such as:
• infiltration of agents and collaborators in criminal organizations;
• creation of shell companies with judicial authorization to monitor laundering schemes;
• judicial intervention in companies suspected of being linked to factions, with the appointment of external managers;
• possibility of precautionary suspension of public contracts of these companies during investigations.
The project also proposes new rules for monitoring communications between prisoners linked to factions and their lawyers, both in person and via videoconference.
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Recordings can only occur with judicial authorization and evidence of misuse of communication for criminal purposes, a point that should generate legal debate, as it involves the principle of professional secrecy between client and defender.
Points excluded from the final text
The project did not include the creation of a National Agency to Combat Organized Crime, proposed in the initial version of the Ministry of Justice working group.
The idea was discarded due to possible unconstitutionality, as it would concentrate functions currently distributed among the security forces provided for in the Constitution.
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Changes to the penalties for electoral crimes committed by criminal organizations — such as vote buying and slush funds —, which were in the original draft, were also left out. The topic continues to be discussed in Congress in other bills authored by parliament.
After being sent to the Civil House, the text will be analyzed by Planalto before being sent to the National Congress. The Ministry of Justice’s expectation is that the proposal will be part of the public security package scheduled to be discussed as a priority this legislative year.
