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Law No. 12,850, 02 August 2013

Original Language Title: Lei nº 12.850, de 02 de agosto de 2013

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LEI NO. 12,850, OF August 2, 2013

Defines criminal organization and has on the criminal investigation, the means of obtaining the evidence, criminal infractions and the criminal procedure; alters the Decree-Law No. 2,848 of December 7, 1940 (Criminal Code); repeals Law No. 9,034 of May 3, 1995; and gives other arrangements.

THE PRESIDING OF THE REPUBLIC I know that the National Congress decrees and I sanction the next Law:

CHAPTER I

OF THE CRIMINAL ORGANIZATION

Art. 1º This Law defines criminal organization and has about criminal investigation, means of obtaining the evidence, criminal infractions correlates and the criminal procedure to be applied.

§ 1º The criminal organization is deemed to be association of 4 (four) or more people structurally ordered and characterized by the division of tasks, albeit informally, with an aim to obtain, directly or indirectly, advantage of any nature, upon the practice of penal infractions whose maximum penalties are higher than 4 (four) years, or which are of transnational character.

§ 2º This Law applies as well:

I-to the penal infractions provided for in treaty or international convention when, initiated the implementation in the Country, the result has or should have occurred abroad, or reciprocally;

II-to international terrorist organizations, recognized under international law standards, by venue of which Brazil is a part, whose acts of support for terrorism, as well as the preparatory or performing acts of terrorist acts, occur or may occur on national territory.

Art. 2º Promote, constitute, fund or integrate, personally or by interposed person, criminal organization: Pena-seclusion, from 3 (three) to 8 (eight) years, and fine, without prejudice to the penalties corresponding to the remaining criminal offences.

§ 1º In the same penalties it incurs who prevents or, in any way, embarks on criminal infraction research involving criminal organization.

§ 2º The penalties increase by up to half if in the organization's acting criminal case there is firearm employment.

§ 3º The penalty is aggravated for anyone who exercises the command, individual or collective, of the criminal organization, yet they do not personally practice acts of execution.

§ 4º The penalty is increased from 1/6 (one sixth) to 2/3 (two-thirds):

I-whether there is child or adolescent participation;

II-if there is public servant contest, it is worth the criminal organization of that condition for the practice of criminal infraction;

III-whether the product or advantage of the criminal infraction is intended, in whole or in part, to the outside;

IV-if the criminal organization maintains connection with other organizations independent criminal;

V-if the circumstances of the fact evidences the transnationality of the organization.

§ 5º If there are sufficient indications that the civil servant integrates organization criminal, may the judge determine his or her circumspect removal from office, employment or function, without prejudice to remuneration, when the measure is necessary to the investigation or procedural instruction.

§ 6º The conviction with transit on trial shall entail the civil servant the loss of the office, function, employment or elective mandate and the interdiction for the exercise of function or public office by the time limit of 8 (eight) years subsequent to the fulfilment of the penalty.

§ 7º If there are indications of police participation in the crimes of which it treats this Act, the Police Internal Affairs will initiate police enquiry and communicate to the Public Prosecutor's Office, which will appoint member to follow up the achievement until its completion.

CHAPTER II

OF THE INVESTIGATION AND THE MEANS OF OBTAINING THE PROOF

Art. 3º At any stage of the criminal prosecution, they shall be permitted, without prejudice to others already provided for in law, the following means of obtaining the proof:

I-award-winning collaboration;

II-environmental caption of signs electromagnetic, optical or acoustic;

III-controlled action;

IV-access to records of telephone and telematics linkages, to constant cadastral data from public or private databases and the election or commercial information;

V-interception of telephone and telematics communications, pursuant to the specific legislation;

VI-removal of financial, banking and tax secretions, in the terms of the specific legislation;

VII-infiltration, by police officers, in investigative activity, in the form of the art. 11;

VIII-cooperation between federal, district, state and municipal institutions and bodies in the search for evidence and information of interest from the investigation or the criminal instruction.

Section I

From the Award-winning Collaboration

Art. 4º The judge may, at the request of the parties, grant the judicial pardon, reduce by up to 2/3 (two-thirds) the custotic penalty of liberty or replace it with rights restrictive of the one who has collaborated effectively and voluntarily with the research and with the criminal case, provided that such collaboration adheres to one or more of the following results:

I-the identification of the remaining coauthors and partycicipes of the criminal organization and the penal infractions by them practiced;

II-the revelation of the hierarchical structure and division of tasks of the criminal organization;

III-the prevention of penal infractions arising from the activities of the criminal organization;

IV-the total or partial recovery of the product or the advantage of the penal infractions practiced by the criminal organization;

V-the location of eventual victim with its preserved physical integrity.

§ 1º In any case, the granting of the benefit will take into account the personality of the collaborator, the nature, the circumstances, the severity and the social repercussions of the criminal fact and the effectiveness of the collaboration.

§ 2º Considering the relevance of the collaboration provided, the Public Prosecutor's Office, at any time, and the police delegate, in the autos of the police inquiry, with the demonstration of the Public Prosecutor's Office, will be able to apply for or represent the judge for the granting of judicial pardon to the collaborator, even though that benefit was not provided for in the initial proposal, applying, in what couber, the art. 28 of the Decree-Law No. 3,689 of October 3, 1941 (Code of Criminal Procedure).

§ 3º The deadline for offer of denunciation or the process, relating to the collaborator, may be suspended for up to 6 (six) months, extended by equal period, until the collaborative measures are fulfilled, suspending the respective prescriptional time limit.

§ 4º In the same hypotheses of the caput, the Public Prosecutor's Office may no longer offer denunciation if the collaborator:

I-are not the leader of the criminal organization;

II-for the first to render effective collaboration pursuant to this article.

§ 5º If the collaboration is later than sentence, the penalty could be reduced by half or it will be admitted to the progression of regime yet absent the objective requirements.

§ 6º The judge will not participate in the negotiations held between the parties for the formalization of the collaboration agreement, which will occur between the police delegate, the investigated and the defender, with the Public Prosecutor's demonstration, or, as the case may be, between the prosecutor's office and the investigated or accused and their defender.

§ 7º Realized the agreement in the form of § 6º, the respective term, accompanied by the statements of the collaborator and copy of the investigation, will be referred to the judge for homologation, which should check its regularity, legality and voluntariness, and may to this end, signedfully, listen to the collaborator, in the presence of his defender.

§ 8º The judge may refuse approval to the proposal that does not meet the legal requirements, or appropriate it to the concrete case.

§ 9º After the agreement has been approved, the collaborator may, always accompanied by his or her defender, be heard by the member of the Public Prosecutor's Office or by the police delegate responsible for the investigations.

§ 10. The parties may pore over the proposal, in which case the self-incriminating evidence produced by the collaborator will not be able to be used exclusively in their disfavour.

§ 11. The sentence will appreciate the terms of the homologated agreement and its effectiveness.

§ 12. Even if it benefits from a judicial pardon or undenounced, the collaborator may be heard in judgment on the application of the parties or on the initiative of the judicial authority.

§ 13. Whenever possible, the registration of the collaborative acts will be done by the means or features of magnetic recording, stenotipy, digital or similar technical, inclusive audio-visual, intended to gain greater fidelity of the information.

§ 14. In the testimonials you provide, the collaborator will resign, in the presence of your defender, to the right to silence and will be subject to the legal commitment to tell the truth.

§ 15. In all the acts of negotiation, confirmation and execution of the collaboration, the collaborator should be assisted by advocate.

§ 16. No sentencing sentence will be delivered on the grounds of only the collaborating agent statements.

Art. 5º Are the rights of the collaborator:

I-enjoy the protective measures provided for in the specific legislation;

II-have name, qualification, image and too much preserved personal information;

III-be conducted, in judgement, separately from the remaining coauthors and partycipes;

IV-participate in the audiences without visual contact with the other accused;

V-not having their identity revealed by the means of communication, nor be photographed or filmed, without your prior written authorization;

VI-serve time in criminal establishment divers of the remaining veils or convicts.

Art. 6º The term of agreement of the award-winning collaboration should be made in writing and contain:

I-the reporting of the collaboration and its possible outcomes;

II-the conditions of the proposal of the Public Prosecutor's Office or of the police delegate;

III-the declaration of acceptance of the collaborator and of his defender;

IV-the signatures of the representative of the Public Prosecutor's Office or the police delegate, the collaborator and his / her defender;

V-the specification of the protective measures to the collaborator and his family, when necessary.

Art. 7º The application for type-approval of the agreement will be signedfully distributed, containing only information that cannot identify the collaborator and its object.

§ 1º The detailed information of the collaboration will be directed directly to the judge to which to recuse the distribution, which will decide within 48 (forty-eight) hours.

§ 2º Access to the autos will be restricted to the judge, the prosecutor's office and the police delegate, as a way of ensuring success of the investigations, assuring the defender, in the interest of the represented, broad access to the evidence relating to the exercise of the right of defence, duly preceded by judicial authorization, resamped those concerning the ongoing representations.

§ 3º The award-winning collaboration agreement cees to be secretive as soon as it received the complaint, noted the provisions of the art. 5º.

Section II

Of Controlled Action

Art. 8º Consists of the action controlled in retarding the police or administrative intervention relating to the action practiced by criminal organization or the linked one, provided that it is held under observation and monitoring for the legal measure to come to fruition in the moment more effective at the formation of evidence and obtaining information.

§ 1º The retardation of police or administrative intervention will be communicated in advance to the competent judge who, if it is the case, will set its limits and will communicate to the Public Prosecutor's Office.

§ 2º The communication will be sigilously distributed in such a way as to not contain information that may indicate the operation to be effected.

§ 3º Until the closure of the diligence, access to the autos will be restricted to the judge, the Public Prosecutor's Office and the police delegate, as a way of ensuring the success of the investigations.

§ 4º At the end of the due diligence, it will elaborate self-circumstantial about of the controlled action.

Art. 9º If the controlled action involves transposition of borders, the retardation of police or administrative intervention may only occur with the cooperation of the authorities of the countries that are figurem as probable itinerary or destination of the investigated, of mode to reduce the risks of leakage and stray from the product, object, instrument, or advantage of the crime.

Section III

From the Infiltration of Agents

Art. 10. The infiltration of police officers in investigative tasks, represented by the police delegate or required by the Prosecutor's Office, after technical demonstration by the police delegate when asked for in the course of police inquiry, will be preceded by circumstantial, motivated and secretive judicial authorization, which will set its limits.

§ 1º In the representation hypothesis of the police delegate, the competent judge, before deciding, will listen to the Ministry Public.

§ 2º Will be admitted to infiltration if there are indications of criminal infraction of which it treats art. 1º and if the evidence cannot be produced by other means available.

§ 3º The infiltration shall be authorised by the time limit of up to 6 (six) months, without prejudice to any renewals, provided that it is proven to be necessary.

§ 4º Findo the deadline provided in § 3º, the circumstantial report will be presented to the competent judge, who will immediately scientify the prosecutor's office.

§ 5º In the course of the police inquiry, the delegate of police will be able to determine to their agents, and the Public Prosecutor's Office will be able to request, at any time, report of the infiltration activity.

Art. 11. The Public Prosecutor's application or the representation of the police delegate for the infiltration of agents will contain the demonstration of the necessity of the measure, the scope of the agents ' tasks and, where possible, the names or nicknames of the persons investigated and the site of the infiltration.

Art. 12. The infiltration request will be signedfully distributed, so as not to contain information that may indicate the operation to be effective or to identify the agent that will be infiltrated.

§ 1º The information as to the need for the infiltration operation will be addressed directly to the competent judge, who will decide within 24 (twenty-four) hours, after demonstration by the Public Prosecutor's Office in the representation hypothesis of the police delegate, and the measures should be adopted necessary for the success of the investigations and the safety of the undercover agent.

§ 2º The autos containing the information of the infiltration operation will accompany the prosecution of the Public Prosecutor's Office, when they will be made available to the defense, ensuring the preservation of the identity of the agent.

§ 3º Havendo safe evidence that the undercover agent suffers imminent risk, the operation will be halted upon requisition by the Public Prosecutor's Office or by the delegate of police, giving immediate science to the prosecutor's office and the judicial authority.

Art. 13. The agent who does not keep, in his or her acting, due proportionality with the purpose of the investigation, will respond by the excesses practiced.

Single paragraph. It is not punishable, in the scope of infiltration, the practice of crime by the undercover agent in the course of the investigation, when undemanding conduct divers.

Art. 14. Are the rights of the agent:

I-refuse or make cessation of undercover acting;

II-have your identity changed, applying, in what couber, the provisions of the art. 9º of Law No. 9,807, of July 13, 1999, as well as enjoying the witness protection measures;

III-have your name, your qualification, your image, your voice and too much personal information preserved during the investigation and the criminal proceedings, unless there is a court ruling to the contrary;

IV-not having your identity revealed, nor being photographed or filmed by the media, without your prior written authorization.

Section IV

From Access to Registers, Cadastral Data, Documents, and Information

Art. 15. The police delegate and the Public Prosecutor will have access, regardless of judicial authorization, only to the cadastral data of the investigated who informs exclusively the personal qualification, the affiliation and the address held by the Justice Electoral, telephone companies, financial institutions, internet providers, and credit card administrators.

Art. 16. The transport companies will enable, by the 5 (five) years, direct and permanent access of the judge, the Public Prosecutor's Office or the police delegate to the reservation databases and travel record.

Art. 17. Fixed or mobile telephone dealerships will maintain, by the time limit of 5 (five) years, at the disposal of the authorities mentioned in the art. 15, identification records of the numbers of the source and destination terminals of the international, intercity and local telephone connections.

Section V

of the Crimes Occurred in Investigation and Obtaining of the Proof

Art. 18. Revealing the identity, photographing or filming the collaborator, without your prior written authorization: Pena-seclusion, from 1 (one) to 3 (three) years, and fine.

Art. 19. Impugning falsely, under pretext of collaboration with Justice, the practice of criminal infraction the person who knows to be innocent, or revealing information about the structure of criminal organization that knows inveridics:

Pena-seclusion, from 1 (one) to 4 (four) years, and fine.

Art. 20. Unfulfilling determination of secrecy of investigations involving controlled action and infiltration of agents:

Pena-seclusion, from 1 (one) to 4 (four) years, and fine.

Art. 21. Refuse or omit cadastral data, records, documents and information requested by the judge, prosecutor's office or police delegate, in the course of investigation or the process:

Pena-seclusion, from 6 (six) months to 2 (two) years, and fine.

Single paragraph. On the same penalty incurs who, in undue way, retires, propalates, disseminates or makes use of the cadastral data that it treats this Law.

CHAPTER III

FINAL PROVISIONS

Art. 22. The crimes provided for in this Act and the related penal infractions shall be ascertained by ordinary procedure provided for in the Decree-Law No. 3,689 of October 3, 1941 (Code of Criminal Procedure), observed the provisions of the single paragraph of this article.

Single paragraph. The criminal instruction should be closed within a reasonable time, which may not exceed 120 (one hundred and twenty) days when the defendant is imprisoned, extended in up to equal period, by reasoned decision, duly motivated by the complexity of the cause or by fact procrastinatory attributable to the defendant.

Art. 23. The secrecy of the investigation could be enacted by the competent judicial authority, for ensuring the speed and effectiveness of the investigatory representations, assuring the defender, in the interest of the represented, broad access to the evidence that concern the exercise of the right of defence, duly preceded by judicial authorization, resonated those regarding the ongoing representations.

Single paragraph. Determined the deposition of the investigated, his defender will have ensured the prior view of the autos, yet classified as classified, within the minimum period of 3 (three) days leading to the act, and may be extended, at the discretion of the responsible authority by the investigation.

Art. 24. The art. 288 of the Decree-Law No. 2,848 of December 7, 1940 (Criminal Code), it passes the invigoration with the following essay:

" Criminal Association Art. 288. Associating 3 (three) or more people, for the specific end of committing crimes:

Penalty-seclusion, from 1 (one) to 3 (three) years.

Single paragraph. The penalty increases up to half if the association is armed or if there is the participation of child or adolescent. " (NR)

Art. 25. The art. 342 of the Decree-Law No. 2,848 of December 7, 1940 (Criminal Code), goes on to invigorate with the following essay:

" Art. 342. ..................................................................................................................

Pena-reclusion, from 2 (two) to 4 (four) years, and fine.

.......................................................................................................................... " (NR)

Art. 26. Abrogates Law No. 9,034 of May 3, 1995.

Art. 27. This Law comes into effect after decorations 45 (forty five) days of its official publication.

Brasília, August 2, 2013; 192º of Independence and 125º of the Republic.

DILMA ROUSSEFF

José Eduardo Cardozo