The controversial National Security Law (LSN), created in 1983 during the military regime — and used by the Supreme Court (STF) to determine the arrests of deputy Daniel Silveira (PSL) and senator Roberto Jefferson (PTB),- – has been revoked and no longer exists.
The repeal took place with the sanction of the President of the Republic, Jair Bolsonaro (no party), on Thursday (2), of a law that created new types of criminal offenses, which are now part of the body of the Brazilian Penal Code.
Bolsonaro sanctioned the law with five vetoes over the bill approved by Congress. Congress will have to review the vetoes and can keep or overthrow them.
The law was criticized for providing for crimes that were abstract and too generic and that somehow curtailed freedom of expression in the name of protecting democracy.
In recent months, the National Security Act has been used against Bolsonaro’s critics. In February, STF minister Alexandre de Moraes also used the law to order the arrest of deputy Daniel Silveira (PSL-RJ). The congressman had released a video apology for AI-5, the harshest instrument of repression of the military dictatorship, and defense of the closing of the Court, unconstitutional claims.
YouTuber Felipe Neto was also investigated based on LSN articles, after calling Bolsonaro a “genocide” in a social network in the context of the federal management of the Covid-19 pandemic.
Experts heard by G1 understand that the change is aggregating to freedom of expression and may stop punishing those who were framed in crimes provided for in the old law. But this is not automatic: the facts and acts committed by people accused of crimes that no longer exist will be analyzed and may be included in other types of criminal offenses already provided for in previous law.
“It is a modern law, which is concerned with the defense of the democratic regime, with the defense of the country’s sovereignty and integrity, but at the same time lean. The legislator was careful not to criminalize freedom of expression any more, removing excesses that we had in the past”, understands the lawyer Fabio Tofic Simantob, Master in Criminal Law and counselor of the Defense Law Defense Institute (IDDD).
“The new law is adapting to the Brazilian reality, in particular the preservation of human dignity regarding personality rights. The differences between the old and the new law show a concern with the new political and social reality”, sees constitutionalist Vera Chemim .
See what changes with the new law:
The previous law (click here to access the text of the National Security Act of 1983) will no longer exist in 90 days. In this period, exceptionally, it can still be applied. After that, new crimes that deal with similar matters come into force and are being included in the Penal Code.
Some crimes cease to exist entirely, such as the one that provided for a penalty of up to 4 years of imprisonment for “to publicly advertise violent or illegal processes to alter the political or social order” or up to 4 years of imprisonment for “inciting the subversion of the political or social order or animosity between the Armed Forces or between them and social classes or civil institutions”.
“The new law preserves institutions, deals with espionage, sovereignty, but in a more adequate way to the Constitution, which did not exist only, because the National Security law had been made at a time when the political order did not accept freedom of expression and association”, explains Professor of Criminal Law and Criminology at the USP Law School Pierpaolo Cruz Bottini.
“I can now advocate regime change as long as I don’t incite violence. I couldn’t do that before, because it was a crime in the National Security Law,” says Bottini.
Experts heard by G1 understand that the change is positive, for being more compatible with democracy and for including crimes in the Penal Code, adding the laws.
Attorney Carolina Coelho, a member of the Brazilian Institute of Criminal Sciences, points out another positive point of the law: to include new crimes against the functioning of the electoral process, which provide for a penalty of up to 6 years in prison for anyone who disturbs the elections or the result by raiding ballot boxes electronic or virtual counting, for example.
There is also a new crime: try to stage a coup d’état (with a penalty of up to 12 years in prison). And a previous crime had the text changed and was maintained: “to attempt, with the use of violence or serious threat, to abolish the Democratic Rule of Law, preventing or restricting the exercise of constitutional powers”, with a penalty of up to 8 years in prison.
What happened to the crime of defaming or slandering the president?
A crime provided for in the National Security Law provided for a penalty of up to 4 years in prison for “slandering or defaming the President of the Republic, the Federal Senate, the Chamber of Deputies or the Federal Supreme Court, imputing to them a fact defined as a crime or fact offensive to reputation”. Cases such as that of youtuber Felipe Netto were framed in this crime, who called Bolsonaro a “genocide” on social networks.
The original crime no longer exists. This does not mean that you can slander the president without running the risk of being punished. This is because there are already crimes in the Penal Code with a prison sentence of up to 2 years of libel and defamation against anyone.
The difference is that the penalty is much lower, subject to criminal transaction (such as alternative penalties or provision of food baskets or service to the community), does not include imprisonment in a closed regime and depends on the victim telling the police he wants the case to be investigated.
However, there was a change: a normal crime of the Penal Code was included in the cause of a one-third increase in the sentence when the victim is the President of the Republic.
The lawyer and professor Pierpaolo Bottini recalls, however, that the situation of the President of the Republic is peculiar because the STF has already decided that the criminal protection for the honor of public figures is “in a certain way reduced” due to the exposure that these people are subject to.
“The defense of the honor of public people is narrower. As a citizen and as a journalist, it is possible to describe public authorities. You cannot attack honor or incite violence,” says Bottini.
What happens to the crimes for which Daniel Silveira and Roberto Jefferson are accused?
There is the repeal of crimes in which Roberto Jefferson and Daniel Silveira were charged under the National Security Law (LSN). But both also respond to other crimes, provided for in the Penal Code.
Experts explain that, with the repeal, the crimes of the National Security Law “disappear”. But this does not mean that the facts cannot be punished if they are compatible with other crimes already provided for by law.
“It does not mean that the conducts are no longer crimes. A threat remains a threat, an apology for crime continues. Some crimes continue to exist”, says Fabio Tofic Simantob.
Both their defense and the Attorney General’s Office will be summoned to comment on whether the process is over or the facts and acts performed by the accused are other crimes. However, most similar crimes provided for in the law have minor penalties, which may be incompatible with the maintenance of prisons for both, understands lawyer Fernando Fernandes.
“The person defends himself from the facts. The denunciation describes the conduct, what the person did. The crimes are no longer in the National Security Law, but the conduct can be adapted to another crime provided for in the Penal Code. This adequacy is the judge’s decision. which it will do when judging, because the new law cannot harm the defendant, only benefit”, explains Bottini.
The proposal approved by parliamentarians and sanctioned by Bolsonaro adds articles to the Penal Code to define crimes against the democratic rule of law. Some articles were vetoed by the president and the vetoes may later be overturned by Congress.
The text typifies ten new crimes, they are:
Attack on sovereignty: prison of three to eight years for the crime of negotiate with a foreign government or group to provoke typical acts of war against the country or invade it. The penalty can even be doubled if, in fact, war is declared. If there is participation in a military operation to submit the national territory to the domain or sovereignty of another country, the seclusion is of four to 12 years;
Attack on national integrity: two to six years imprisonment for those who practice violence or serious threat to dismember part of the national territory to constitute an independent country. The criminal must also answer for the penalty corresponding to the violence of the act;
Espionage: prison of three to 12 years for whom deliver secret documents or information, which could endanger democracy or national sovereignty, to foreign government or criminal organization. Whoever assists spy is liable for the same penalty, which can be increased if the document is revealed in violation of the duty of secrecy. In addition, anyone who facilitates espionage by, for example, providing passwords to information systems may be liable for arresting one to four years. The text clarifies that it is not a crime to hand over documents to expose the practice of crime or the violation of human rights;
Violent abolition of the democratic rule of law: prison of four to eight years for whom try, with the use of violence or serious threat, to abolish the Democratic Rule of Law, preventing or restricting the exercise of constitutional powers. The criminal must also answer for the penalty corresponding to the violence of the act;
Coup d’etat: prison of four to 12 years who are youto depose, by violence or serious threat, the legitimately constituted government. The criminal must also answer for the penalty corresponding to the violence of the act;
Interruption of the electoral process: prison of three to six years and fine for whom “prevent or disturb an election or the measurement of its result” through violation of the voting system;
Misleading Mass Communication: Pity of one to five years and fine for anyone who offers, promotes, constitutes, finances or integrates, personally or by third parties, through an expedient not provided directly by the provider of the private messaging application, campaign or initiative to disseminate fake news capable of compromising the electoral process;
Political violence: Pity of three to six years and fine for whom restricting, preventing or hindering, through physical, psychological or sexual violence, the exercise of political rights to any person based on their sex, race, color, ethnicity, religion or national origin;
Sabotage: Pity of two to eight years for whom destroy or render useless means of communication, establishments, installations or services destined to the national defense, with the objective of abolishing the Democratic Rule of Law;
Attack on the right to demonstrate: prison of one to four years for whom prevent, through violence or serious threat, “the free and peaceful exercise of manifestation by political parties, social movements, unions, class bodies or other political, associative, ethnic, racial, cultural or religious groups”. The penalty can be increased if there is serious bodily harm (from two to eight years), if it results in death (from four to 12 years).
The text approved by senators and deputies also establishes that the penalties provided for the crimes listed above will be increased by one third if the offense is committed with violence or threatens to use a firearm.
If the crime is committed by public agent the penalty will also be increased by a third and the professional will lose his position. case one military practice the crime, the penalty increases by half, cumulated with the loss of rank and rank or rank.
The text also establishes detention of three to six months, or fine, for whoever ipublicly inciting animosity between the Armed Forces, or of them against the constitutional powers, civil institutions or society.
The proposal makes it clear that it will not be considered a crime against the Democratic Rule of Law:
- Appeal to the critical manifestation of constitutional powers;
- Journalistic activity;
- Claiming constitutional rights and guarantees through marches, meetings, strikes, agglomerations or any other form of political manifestation with social purposes.