Check out Requião's substitute bill on abuse of power.

Esmael Morais - Senator Roberto Requião (PMDB-PR) released this Friday (2) a substitute for Senate Bill 280/216 which seeks to curb and punish crimes of abuse of authority.

On Monday (5), the substitute will be included in the Senate's document system so that its inclusion in the agenda can be scheduled.

The rapporteur for the bill, Requião, is working towards a plenary discussion and vote on Tuesday the 6th.

Read more here.

Below is the full text of the substitute bill:

SUBSTITUTE
(SENATE BILL NO. 280, OF 2016)
It defines the crimes of abuse of authority and provides other measures.
The National Congress decrees:
CHAPTER I
General Provisions
Article 1. This Law defines the crimes of abuse of authority, committed by public agents, whether or not they are civil servants, who, in the exercise of their functions or under the pretext of exercising them, abuse the power that has been attributed to them.
Sole paragraph. An act supported by divergent interpretations or jurisprudence, even if minority, but current, does not constitute the crime of abuse of authority, as well as an act performed in accordance with an acceptable and reasonable assessment of the determining facts and circumstances, provided that, in any case, it does not contradict the letter of the law, nor has it been performed with abuse of authority.
CHAPTER II
Of the Subjects of the Crime
Article 2. The active subject of the crime of abuse of authority is any public agent, whether or not a civil servant, of the direct, indirect, or foundational administration of any of the Powers of the Union, the States, the Federal District, the Municipalities, or Territories, including, but not limited to:
I – public servants and military personnel or persons equivalent to them;
II – members of the Legislative Branch;
III – members of the Judiciary;
IV – members of the Public Prosecutor's Office;
V – members of the courts or audit boards.
Sole paragraph. For the purposes of this Law, a public agent is considered to be anyone who exercises, even temporarily or without remuneration, by election, appointment, designation, hiring or any other form of investiture or bond, a mandate, position, employment or function in the entities mentioned in the heading.
CHAPTER III
Regarding Criminal Proceedings
Article 3. The crimes foreseen in this Law are subject to public prosecution conditioned upon a complaint by the victim or a request from the Minister of Justice.
§ 1 In the event of the victim's death or if their absence is declared in a court decision, the right of representation shall pass to the spouse, ascendant, descendant, or collateral relative of the second degree.
§ 2 The right of representation may be exercised personally or by a proxy with special powers, by means of a written or oral declaration or petition addressed to the judge, the Public Prosecutor's Office or the police authority.
§ 3 The complaint will be irrevocable after the indictment has been filed.
§ 4 The right to file a complaint will lapse if it is not exercised within six months, counted from the day on which the authorship of the crime becomes known.
§ 5. A subsidiary private action will be admitted if the Public Prosecutor's Office does not file the indictment within 15 (fifteen) days, counted from the receipt of the investigation or, if this has been dispensed with, from the receipt of the representation.
§ 6 The right to a subsidiary private action may be exercised within six months from the date on which the deadline for filing the complaint expires.
§ 7. The criminal action will be public and unconditional if the commission of the crime involves multiple victims or if, for objectively expressed reasons, there is a risk to the life, physical integrity, or professional standing of an offended party who wishes to file a complaint against the perpetrator of the crime.
CHAPTER IV
On the Effects of Conviction and Restrictive Penalties
Section I
On the Effects of Conviction
Article 4. The following are effects of the conviction:
I – to establish the obligation to compensate for the damage caused by the crime, with the judge setting in the sentence the minimum amount for reparation of the damages caused by the offense, considering the losses suffered by the victim;
II – the loss of office, mandate or public function, in the case of recidivism in the crime of abuse of authority.
Sole paragraph. The loss of office, mandate, or function must be declared, with justification, in the judgment and will be independent of the penalty applied.
Section II
Regarding Restrictive Penalties of Rights
Article 5. The alternative penalties to imprisonment provided for in this Law are:
I – providing services to the community or to public entities;
II – suspension from the exercise of the position, function or mandate, for a period of 1 (one) to 6 (six) months, with loss of salary and benefits;
III – prohibition from exercising functions of a police or military nature in the municipality where the crime was committed and in the municipality where the victim resides and works, for a period of 1 (one) to 3 (three) years.
CHAPTER V
Regarding Sanctions of a Civil and Administrative Nature
Article 6. The penalties provided for in this Law shall be applied independently of any applicable civil or administrative sanctions.
Sole paragraph. The judge, the member of the Public Prosecutor's Office, or the police authority who receives the complaint from the victim, as well as the Minister of Justice, in the case of a request, must report the act considered unlawful to the National Council of Justice or the National Council of the Public Prosecutor's Office, if applicable, or to the competent authority, with a view to investigating misconduct.
Article 7. Civil and administrative liability are independent of criminal liability, and the existence of the fact or the identity of its perpetrator cannot be questioned again when these issues have been decided in criminal court.
Article 8. A criminal sentence that recognizes that the act was committed in a state of necessity, in legitimate self-defense, in strict compliance with a legal duty, or in the regular exercise of a right, constitutes res judicata in civil matters, as well as in administrative-disciplinary matters.
CHAPTER VI
Of Crimes and Punishments
Article 9. To order preventive detention, search and seizure of a minor, or other measure depriving liberty, in manifest non-compliance with legal provisions:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Sole paragraph. The judicial authority that fails to do so within a reasonable timeframe shall incur the same penalties.
I – to release someone from manifestly illegal imprisonment;
II – to replace pretrial detention with a different precautionary measure or to grant provisional release, when clearly applicable;
III – to grant a preliminary injunction or writ of habeas corpus, when clearly applicable.
Article 10. To order the coercive transport of a witness or suspect unnecessarily or without prior summons to appear in court.
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Article 11. To carry out the capture, arrest, or search and seizure of a person who is not caught in the act of committing a crime or without a written order from a judicial authority, except in cases of military transgression or strictly military crime, as defined by law, or of a convicted or interned fugitive.
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Article 12. Failure to report an arrest in flagrante delicto to the judicial authority within the legal timeframe:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same penalties apply to anyone who:
I – fails to immediately notify the judicial authority that ordered the execution of a temporary or preventive arrest;
II – fails to immediately notify any person's family or a person designated by them of their arrest and their whereabouts;
III – fails to deliver to the prisoner, within 24 (twenty-four) hours, the notice of charges, signed by the authority, stating the reason for the arrest and the names of the arresting officer and witnesses;
IV – prolongs the execution of a sentence involving deprivation of liberty, temporary detention, preventive detention, security measure, or internment, failing, without just and extremely exceptional reason, to execute the release order immediately upon receipt, or to promote the release of the prisoner when the judicial or legal term has expired.
Article 13. To coerce a prisoner or detainee, through violence, serious threat, or reduction of their capacity to resist, into:
I – to exhibit oneself or have one's body or part of it exhibited to public curiosity;
II – to submit to a humiliating situation or constraint not authorized by law;
III – producing evidence against oneself or against a third party.
Penalty – imprisonment for 1 (one) to 4 (four) years, and a fine, without prejudice to the penalty imposed for the violence.
Art. 14. To photograph or film, to allow the photographing or filming of, to disclose or publish a film or video of a prisoner, inmate, person under investigation, indicted person, or victim in a criminal proceeding, without their consent or with authorization obtained through illegal coercion.
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. There will be no crime if the purpose of the photograph or filming is to produce evidence in a criminal investigation or criminal proceedings, or to document the conditions of the penal establishment.
Article 15. Failure to advise the person under investigation or indicted of their right to remain silent and their right to be assisted by a lawyer or public defender.
Penalty – imprisonment for 1 (one) to 4 (four) years, and a fine.
Sole paragraph. The same penalties apply to anyone who:
I – continues with the questioning of those who have decided to exercise their right to remain silent or those who have chosen to be assisted by a lawyer or public defender, without a defender;
II – compels a person to testify, under threat of imprisonment, when that person is required to maintain secrecy or confidentiality by reason of their function, ministry, office, or profession.
Article 16. Failure to identify oneself to the prisoner at the time of their capture, or when required to do so during their detention or imprisonment, as well as falsely identifying oneself:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same applies to anyone who:
I – as the person responsible for interrogation, in the context of an investigation into a criminal offense, fails to identify himself to the prisoner;
II – assumes a false identity, position, or function for himself, under the same circumstances as in the previous paragraph.
Article 17. To subject a prisoner, detainee, or person apprehended to the use of handcuffs or any other object that restricts the movement of their limbs, when there is clearly no resistance to the arrest, threat of escape, or risk to the physical integrity of the prisoner, the authority, or a third party:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The penalty is doubled if:
I - the inmate is under eighteen years of age;
II – the detainee, inmate, or detainee is visibly pregnant.
Article 18. Subjecting a prisoner to police interrogation during nighttime rest hours, unless caught in the act of committing a crime or if, with due assistance, he consents to give a statement:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Article 19. To unjustifiably impede or delay the forwarding of a prisoner's petition to the competent judicial authority for assessment of the legality of their imprisonment or the circumstances of their custody:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Sole paragraph. The magistrate who, aware of the impediment or delay, fails to take steps to remedy it, or, not being competent to decide on the arrest, fails to forward the request to the competent judicial authority, incurs the same penalties.
Article 20. Preventing, without just cause, a prisoner from meeting with his lawyer:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same penalties apply to anyone who prevents a prisoner, a released defendant, or a person under investigation from meeting with their lawyer or legal representative for a reasonable period before a court hearing, and from sitting next to them and communicating with them during the hearing, except during interrogations or in the case of a hearing held by videoconference.
Article 21. To coerce a prisoner with the intent of obtaining sexual advantage or favor:
Penalty – imprisonment, from 1 (one) year to 4 (four) years, and a fine.
Article 22. Keeping prisoners of both sexes in the same cell or confinement space:
Penalty – imprisonment, from 1 (one) to 4 (two) years, and a fine.
Sole paragraph. The same penalties apply to anyone who keeps a child or adolescent in the same cell as an adult or in an unsuitable environment, in accordance with the provisions of the Statute of the Child and Adolescent.
Article 23. To invade or enter, clandestinely, surreptitiously or against the will of the occupant, another person's property or its premises, as well as to remain therein under the same conditions, without a court order and outside the conditions established by law:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
§ 1. The same penalties shall apply to anyone who, in the manner provided for in the main clause:
I – coerces someone, through violence or serious threat, to grant him access to a property or its premises;
II – executes a search and seizure warrant on someone else's property or its premises, mobilizing vehicles, personnel, or weaponry in an ostentatious and disproportionate manner, or in any way exceeding the limits of the judicial authorization, to expose the investigated party to a situation of humiliation;
III – executes a search and seizure warrant at a residence after 21 PM or before 5 AM.
§ 2. There will be no crime if the entry is to provide assistance, or when there are well-founded indications that suggest the need for entry due to a situation of flagrant crime or disaster.
Article 24. To commit or order the commission of physical or moral violence against a person, in the exercise of one's function or under the pretext of exercising it:
Penalty – imprisonment for 1 (one) to 4 (four) years, and a fine, without prejudice to the penalty imposed for the violence.
Article 25. To artificially alter, during an investigation, inquiry, or legal proceeding, the state of a place, thing, or person, with the aim of evading responsibility, exposing a person to embarrassment or public humiliation, or criminally charging someone or aggravating their responsibility:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Sole paragraph. The same penalties apply to anyone who commits the act with the intent to:
I – to be exempt from civil or administrative liability for excesses committed in the course of an investigation;
II – to omit data or information, as well as to disclose incomplete data or information, in order to divert the course of the investigation, inquiry or process.
Article 26. To coerce, through violence or serious threat, an employee or worker of a public or private hospital institution to admit for treatment a person whose death has occurred, with the purpose of altering the location or time of a crime, thereby hindering its investigation;
Penalty – imprisonment for 1 (one) to 4 (four) years, and a fine, in addition to the penalty corresponding to the violence.
Article 27. Obtaining evidence by manifestly unlawful means or using evidence whose unlawful origin is known, during an investigative or supervisory procedure.
Penalty: imprisonment, from 1 (one) to 4 (four) years, and a fine.
Article 28. Inducing or instigating a person to commit a criminal offense with the aim of capturing them in the act, outside the cases provided for by law:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. If the victim is caught in the act, the penalty is imprisonment for 1 (one) to 4 (four) years, and a fine.
Article 29. To request or initiate an investigation into a criminal or administrative offense against someone simply because of their artistic expression, thought, political or philosophical conviction, belief, worship, or religion, in the absence of any indication of a crime having been committed:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Article 30. Disclosing or inserting into the records of an investigation or criminal proceedings a recording or excerpt of a recording that is unrelated to the evidence intended to be produced, exposing the privacy or private life or harming the honor or image of the investigated or accused party:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Article 31. Providing false information about judicial, police, tax, or administrative proceedings with the aim of harming the interests of the person under investigation.
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same penalties shall apply to anyone who, with the same intent, omits data or information about a legally relevant and non-confidential fact.
Article 32. To initiate or proceed with criminal, civil, or administrative prosecution with abuse of authority:
Penalty – imprisonment, from 1 (one) to 5 (five) years, and a fine.
Article 33. To extend the investigation without justification, delaying it to the detriment of the investigated or inspected party.
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same penalties shall apply to anyone who, when there is no deadline for the execution or conclusion of the procedure, extends it without justification, delaying it to the detriment of the investigated or inspected party.
Article 34. To deny the defense attorney, without just cause, access to the preliminary investigation files, the detailed report, the inquiry, or any other investigative procedure for a criminal, civil, or administrative offense, as well as to prevent the obtaining of copies, except for investigations whose confidentiality is essential:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Sole paragraph. The same penalties shall apply to anyone who, in violation of the law or without express justification, decrees secrecy in the proceedings.
Article 35. To demand information or compliance with an obligation, including the duty to do or not to do something, without express legal support:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Article 36. Failure to correct, either on one's own initiative or upon request, when having the authority to do so, a relevant error that one knows exists in a process or procedure:
Penalty – imprisonment, from 3 (three) to 6 (six) months, and a fine.
Article 37. Failure to order the initiation of investigative proceedings to ascertain the commission of crimes foreseen in this Law when one has knowledge of them and the authority to do so:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
Article 38. To prohibit, hinder, or by any means prevent the peaceful assembly, association, or grouping of persons for a legitimate purpose:
Penalty - detention, from 3 (three) months to 1 (um) year, and a fine.
Article 39. To order, in judicial proceedings, the freezing of financial assets in an amount that excessively exceeds the estimated value for the satisfaction of the party's debt:
Penalty – imprisonment, from 1 (one) to 4 (four) years, and a fine.
Article 40. To request access to a case file under consideration by a collegiate body, with the intent of delaying its progress or postponing the judgment:
Penalty – imprisonment, from 6 (six) months to 2 (two) years, and a fine.
CHAPTER VII
Of the Procedure
Article 41. The provisions of Decree-Law No. 3.689, of October 3, 1941 – Code of Criminal Procedure, and Law No. 9.099, of September 26, 1995, shall apply, where applicable, to the proceedings and trial of the offenses provided for in this Law.
CHAPTER VIII
Final Provisions
Article 42. Law No. 8.069, of July 13, 1990, shall be amended to include the following Article 244-C:
"Art. 244-C. For crimes foreseen in this Law, committed by public servants with abuse of authority, the effect of the conviction foreseen in article 92, item I, of Decree-Law nº 2.848, of December 7, 1940 (Penal Code), will only apply in case of recidivism."
Sole paragraph. The loss of office, mandate, or function, in this case, will be independent of the penalty applied in case of recidivism.
Article 43. Article 2 of Law No. 7.960, of December 21, 1989, shall now read as follows:
"Art. 2th ……………………………………………………………… ..
…………………………………………………….
§ 4-A. The arrest warrant must necessarily contain the period of temporary detention established in Article 2, as well as the day on which the detainee must be released.
.............................................................................................
§ 7 After the expiration of the period contained in the arrest warrant, the authority responsible for custody must, regardless of any new order from the judicial authority, immediately release the prisoner, unless it has already been notified of the extension of the temporary arrest or the decree of preventive detention.
§ 8 For the purpose of calculating the period of temporary detention, the day on which the arrest warrant is executed is included.” (NR)
Article 44. Decree-Law No. 2.848, of December 7, 1940 (Penal Code), shall be amended by adding the following Article 317-A:
"Article 317-A. To possess, maintain, or acquire, for oneself or for another, without justification, assets or valuables of any nature, incompatible with one's income or with the evolution of one's assets:"
Penalty – imprisonment for three to eight years, and a fine.
Sole paragraph. The penalty will be increased by up to half if the ownership or possession of assets, rights, or values ​​is fraudulently attributed to a third party.
Article 45. Law No. 4.898, of December 9, 1965, paragraph 2 of article 150 and article 350, both of Decree-Law No. 2.848, of December 7, 1940 (Penal Code), are hereby repealed.
Article 46. This Law shall enter into force 60 (sixty) days after its publication.