On September 1, 2021, Brazilian President Jair Bolsonaro promulgated Law No. 14,197 (Lei No. 14.197, de 1 de Setembro de 2021), which revokes the National Security Law and establishes a series of criminal offenses in defense of the democratic rule of law. At the same time, the president vetoed one part of the proposed law.
Law No. 14,197 adds Title XII to the Special Part (Parte Especial) of the Penal Code that deals with crimes against the rule of law. (Código Penal, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, Título XII, dos Crimes Contra o Estado Democrático de Direito.)
Chapter I of Title XII adds article 359-I to 359-K to the Code and addresses crimes against the national sovereignty. Article 359-I (attack on sovereignty) punishes with three to eight years in prison anyone who negotiates with a foreign government or group, or its agents, to provoke typical acts of war against the country or invade it. If the person participates in a military operation with the purpose of submitting the national territory, or part of it, to the domain or sovereignty of another country, the punishment may be increased to up to 12 years. (Art. 359-I (§ 2).)
Article 359-J (attack on national integrity) punishes the perpetration of violence or serious threat aimed at dismembering part of the national territory to constitute an independent country with two to six years in prison, in addition to the punishment applicable to violence.
According to article 359-K (espionage), delivering to a foreign government, its agents, or a foreign criminal organization, in disagreement with a legal or regulatory determination, a document or piece of information classified as secret or top secret under terms of law, the disclosure of which could endanger the preservation of the constitutional order or national sovereignty, is punishable by three to 12 years in prison. A person who assists a spy, knowing this circumstance, in order to remove the spy from the action of the public authority, incurs the same punishment. (Art. 359-K (§ 1).) A punishment of six months to 15 years in prison is imposed if the document, data, or information is transmitted or revealed in violation of the duty of confidentiality. (Art. 359-K (§ 2).) Facilitating the commission of any of the crimes provided for in article 359-K by assigning, providing, or borrowing a password or any other form of access by unauthorized persons to information systems is punishable by one to four years in prison. (Art. 359-K (§ 3).) Section 4 of article 359-K determines that the communication, delivery, or publication of information or documents in order to expose the perpetration of a crime or violation of human rights is not a crime.
Chapter II focuses on crimes against democratic institutions and adds articles 359-L (violent abolition of the democratic rule of law) and 359-M (coup d’etat) to the Code. In accordance with article 359-L, an attempt, through the use of violence or serious threat, to abolish the democratic rule of law by preventing or restricting the exercise of constitutional powers is punishable by four to eight years in prison, in addition to the punishment applicable to violence. Article 359-M determines that an attempt to depose, through violence or serious threat, the legitimately constituted government is punishable by four to 12 years in prison, in addition to the punishment applicable to violence.
Chapter III deals with crimes against the functioning of democratic institutions in the electoral process and adds articles 359-N (interruption of the electoral process) and 359-P (political violence) to the Code. Article 359-N punishes with three to six years in prison and a fine anyone who prevents or disturbs the election or the measurement of its result through undue violation of the security mechanisms of the electronic voting system established by the Electoral Court. In addition, article 359-P punishes with three to six years in prison and a fine, in addition to the punishment applicable to violence, anyone who restricts, prevents, or hinders, through the use of physical, sexual, or psychological violence, the exercise of political rights to any person because of their sex, race, color, ethnicity, religion, or national origin.
Chapter IV discusses crimes against the functioning of essential services and adds article 359-R (sabotage) to the Code, which punishes with two to eight years in prison anyone who, with the aim of abolishing the democratic rule of law, destroys or disables means of communication to public establishments, facilities, or services intended for national defense.
Chapter V concerning crimes against citizenship was vetoed by the president. Chapter VI adds to the Code article 359-T, which determines that under Title XII of the Penal Code it is not a crime to criticize constitutional powers or journalistic activity or to claim constitutional rights and guarantees through marches, meetings, strikes, gatherings, or any other form of political demonstration with social purposes.