Bail Bonds For Traffic Tickets Houston TX -Types of Bail Bonds

Types of Bail Bonds

In the great majority of the countries of the world, legal systems include certain economic measures that are applied against persons subjected to a judicial process in which they are accused of having committed a crime, be it criminal or administrative.

The payment of bonds is a widely used way so that the defendant can be tried in freedom or even enjoy conditional freedom, but the question that many are asked is how to recover the money of bail when the judicial process finishes or is annulled.

 

In many cases, judges may order the temporary imprisonment of a person while the investigation is being conducted against them, mainly when there is a risk of flight or that they evade their responsibility or may try to evade the action of the investigative bodies.

 

In Mexico and many others that share a similar judicial structure, the payment of an economic bond can be granted in court in exchange for being able to be tried in freedom.

 

Bail can also be requested at the request of those affected who fear that the accused flee without paying any financial commitment and want to secure the payment of their losses.

 

In fact, the amount of the bond is set in such a way that the criminal or administrative prosecution feels obliged to respect the judge’s orders, including not leaving the city or the country, on pain of losing this money or property given in guarantee and be sent to prison immediately.

 

In countries such as Mexico, bail is a mechanism widely used in the justice system and is divided into two types, judicial bonds, and criminal bonds.

 

In addition, the defendant can pay directly to the court if he has sufficient financial means, or through a company specialized in the financing of bonds, or the mighty https://www.bondcliff.net/ bail bondsman.

 

If for some personal or family reason you assumed to be someone else’s bailor, you may be asked how to recover the money from a bond and when you can demand this reimbursement.

 

The answer depends on several conditions that we will explain in this article and that affect the time of the return of your money or even, that it does not return to your hands.

 

What is a judicial bond?

Bail bond

The judicial bonds are those that are granted as a result of a trial and are required by a judge to one or all the parties in case they are in litigation in order to guarantee the judicial procedure.

 

These are divided into several types, such as:

  • Judicial bail in commercial matters. It serves to guarantee the payment of possible damages and losses caused by the breach of clauses in a commercial contract.
  • Judicial bond in family matters. It is also known as maintenance bail of alimony and is required when there is a voluntary divorce to guarantee the payment of food, clothing, and housing, health and education to the ex-spouse and the minor children.
  • Executors’ bond. Those who are appointed as executors in an inheritance case must present a bond in the following 3 months that guarantees that they will manage the economic resources in an appropriate manner. This bond is calculated based on the income or benefits that the managed goods generate during a year or their value in the market and profitability for 5 years in the case of productive units such as cattle ranches, etc.
  • Bond for guardianship. The Mexican civil code establishes this type of bond to guarantee good performance in the performance of those who must protect minors or adults who have some type of illness or physical or mental disability.

 

What is a criminal bail?

criminal bail

These types of bonds are linked to cases of criminal offenses and are divided into three types:

  • Criminal bail of provisional freedom. It is stipulated in Article 20 of the Mexican Constitution and can be granted as long as the crime committed does not imply a penalty of more than 5 years in prison. The bond will be maintained until there is a definitive sentence and seeks to ensure that the defendant does not evade justice, cover the repair of damage to third parties and possible fines generated.
  • Conditional sentence bail. It applies to people sentenced to less than 2 years in prison who are well behaved and deserve a conditional release benefit. Its validity is 3 and a half years and seeks to ensure that the defendant does not evade justice and is accompanied by demands such as not changing addresses, not drinking or using drugs, not committing new crimes and repairing damages caused to third parties.
  • Bail of preparatory freedom. It is granted to inmates who have served in prison three-fifths of their sentence if it is an intentional crime, or half of it in case it is an imprudent crime. The amount of the bond must cover the repair of the damage to third parties and guarantee that the defendant does not evade the action of justice when required.

 

How to know if my money will be returned to me?

money

If the person to whom the bond was imposed is accused of a crime, this money temporarily passes to the court as a way to ensure partial or total payment of the costs generated by the justice process.

 

This means that the bond is returned only if the person is removed from the charges or if the judicial process ends with a verdict of innocence in his favor.

 

In addition, you must consult the court the exact date of the closing of the case, that is, the date of the hearing in which the acquittal will be pronounced against the defendant or even if there was a withdrawal of the charges against you. accusing party.

 

This way you can know when you can start the process to demand the refund of your money.

 

In the rest of the cases, to know how long you should wait for the return of the deposit money, you must take into account other factors.

 

Conditions that affect the reimbursement of a deposit

bail deposit

The first factor to consider is what was the payment method you used as a surety. In Mexico there are two options when it comes to paying the deposit, starting with the most traditional one, which is to pay it directly in the bank’s bank account or in the administrative box office that it has.

 

The second way to pay a bond in Mexico is through a surety agent, which is a company or financial company that is responsible for taking the total amount of the bond in exchange for a percentage of 10 to 20 percent of the amount Of the same.

 

A surety agent is a valuable resource when the defendant does not have sufficient financial means to pay immediately. The surety agent then makes a payment agreement with the defendant or with the guarantor that he designates.

 

Secondly, you should know the status of the legal process against the accused. To be able to recover the money from a bond is a mandatory condition that the person you are helping is acquitted or the charges against you are withdrawn.

 

This means that if you are found guilty, this money will go to cover the expenses of the court and therefore you will not be able to recover it.

 

Assuming there was acquittal or acquittal, or the charges were dropped and you also paid the bail directly to the court, you will receive a full refund for the amount you paid within 15 days to six weeks.

 

In the case of very long processes, you must see what is the bail expiration time, because according to the cause for which it was imposed some expire at 30 days while others have a duration of 3 months to 1 year, especially in the case of those related to issues of inheritance, management of third-party property, etc.

 

In any case, the return of this money will be done through a check, so it is important that you update your personal information and address before the court to avoid errors in its preparation and subsequent collection in cash.

 

We recommend you read: How to start an insurance company?

We recommend you read: How to start an insurance company?

 

It should be noted that the bonds for food allowance are the ones that are reimbursed more quickly since they do not exceed 24 hours after the fulfillment of the obligation by the ex-spouse.

 

You should bear in mind that if more than six weeks pass from the start of the refund process and the check has not been processed, you should contact the court to find out if there is a problem.

 

In the event that you have paid the bail through a surety agent, we regret to tell you that you may not receive any refund.

 

This is because, as a rule, these agents will only ask you to pay 10 to 20 percent of the total amount of the bail demanded by the judge, which is the agent’s fee and which is not reimbursable. Therefore, you will not receive back what you paid.

 

Crime Strengthens Crime – That’s the Ideology | Channel Criminal Sciences

 

For the sake of ” Copyright “, I hereby inform you that the title of the article is not my own. In fact, it is the end of art. 7, of the Third Statute of the PCC, a statute that regulates life in crime for siblings. To be very objective, “it would be their Magna Carta” that, in their case, there is capital punishment. So it is the one they obey.

Crime strengthens crime

Crime strengthens crime

 

Do not come up with that vision of the 70’s, that the thug is stupid. Donkey is actually the one who despises crime, and it is because of this stupidity that we are living this situation in our country. Currently, the CCP is in its Third Generation. Coincidence or not, it now has the characteristics of ” Bandos and Third Generation Gangs “, generation as to the phenomenon of “criminal organization” (IBCCRIM, 2012).

In the end, I treated a little bit more about it.

Many people are asking me why I am not writing about the attacks of criminals in some states. The time had not yet come to show society the sad reality we are going through, but this time, fortunately for many and unfortunately for the few, arrived. Without further ado, let’s get rid of all the dirt the state tries to hide under your rug .

Has anyone “noticed” that there are no more deaths of prisoners of dissident factions in and out of jail ? As they themselves say:

In the chain and on the street, sir?

In the chain and on the street, sir?

Only those who really want to “remain blind” or “those same types of people” who in 1997 “responded” to the CPI that investigated organized crime in the State, even ridiculing their members “implying” that they were misinformed or seeing ghosts when they asked for information about the CCP, publishing in full the First Statute that had already warned us about the CCP’s goals, many of which had already been fulfilled. After all, as they themselves told me:

It’s the face [1] ! (it’s the “Right”)

I have been warning since 2002, during the 54th Annual Meeting of the SBPC all this wrong Criminal Policy and Penitentiary. In fact, the penitentiary criminogenic policy employed at that time by the State of São Paulo, which did all the damage that we see every day in the newspapers and that I see that it will not end if it does not want crime.

It is incredible how things are repeating themselves, that is, crime is strengthened by the same mistakes committed by the State , and, to prove the state’s amateurism, we see that crime has been using its same techniques, after all it has already worked out once, right?

Some readers should not understand anything of what I wrote, so, my dear, if this is your case, at least you will have to study what I wrote about the generations of the CCP, as well as recommend that you read the articles that are available in the links of this article, because if they do so, they will be able to understand all this logic of the attacks and what we are suffering much easier.

This was the “technique” I used in this article to help readers, including blogs, websites, and newspapers that I have “spread” around. I am grateful for the opportunity of this humble contribution to globalized society, given that I am monitoring how much my humble academic contributions are spreading.

The amateurism with organized crime is very damaging to society, I do not tell the State, because it does not worry about us, because if it really cared, the CCP would not have been able to fulfill “everything they told us they would do.” Recalling that the notices date back to the 90s, as published in the Official Gazette of the State of São Paulo.

Look at the irresponsibility of the state: the CCP informed us in its art. 14, that his priority was to deactivate the Concentration Camp (as those who came from that Unit, from the “Cave” said). Already in art. 15 informed us that they were going to make a “megarrebelião” in the State of São Paulo, already telling us that they had already consolidated in SP and that the goal would be at the national level.

Readers well recall the deaths that occurred earlier, and of course they recall that they were CCP fights over “chains” in other states. This is the CCP struggling to achieve the goal of its First Statute, that is, to dominate other States.

Some “experts” forget to note that it is not because we are in the Third Statute that the objectives of the First Statute have not yet been achieved should be abandoned. Ledo mistake. As they say, “crime is not comedy.” We already know that its members are causing problems in prisons in other countries, just as Argentina is already trying to prevent the attack of the tentacles of the organization.

The crime has united in our country, be it organized or composed of factions and other seditious bands, that have not reached the status of being considered criminal organizations. But if it depends on our State (Federal Union), as it has already happened (CCP), they will easily reach.

Of course, if there are not once more deaths, by the dispute of territories and power. “As empiricism” already “showed me,” several times in the imprisoned prisoners were not working and studying at the time of the Father’s death (as the Shadow was called the former leader of the CCP).

The PCC in the 90s used a very interesting technique that gave it the power it possesses today. He made rebellions and to close them he asked for a “tram” (transfer) to the chain that was not yet in his hands and thus dominated the “faculties” (prisons) in SP. When the faculties were in their hands, they understood by right to make a megarrebelião in SP.

They decided to stop because the purpose was to show what the CCP was capable of. Well, at least that’s what I heard from them during the phenomenon, which occurred in 2001. Here I make the addition. My psychiatrist always warns me: “It’s chronic, you’ll never forget that, there’s no remedy, there’s no treatment for it, that’s incurable.” So sometimes I remember the facts with more details, phrases and other events.

The jail is a grinder of a human being, it destroys everyone who works there and / or lives there. The turns in the grinder are the years, that those who are there suffer. Such a destructive power of the jail, causes furrows in our minds, when we submit to prison, depersonalization, among other ills of the factory to make crazy.

RN and MG have already suffered simultaneous attacks from the CCP and these attacks have been happening for years, as has the use of the “National Force”. Now we see that the same Force is being used in Ceará, but the numbers of attacks only increase. Here are some questions:

How many attacks will organized crime be satisfied to end all this? When attacks occur in other states, and if the “National Security Salve” occurs, will they send the National Security Force to all States?

If so, if they are no longer in charge of Ceará, will the whole Force be able to stop the attacks in Brazil? There are enough police in our country to report to this Army that organized crime “buying” it up to who owns 13 years, with a thousand dollars to “set fire” and five thousand to “explode”?

How are we going to fight an army that contains even minors? We will be able to open public tenders in the area of ​​public security and train them at the same speed as organized crime manages to increase its garrison. Of course, remembering that for them there is no need for competitions and no training as long as they occur in the State; remembering, for example, that criminal organizations in RJ are making use of the “skilled labor”, coming from the Armed Forces. That is why we see that there is so much ease in the handling of weapons of war and all kinds of explosives.

When I left the Army, the CCP Intelligence Sector (in 1994) had already “lifted my life.” They knew I had been a shooting sergeant, who knew how to use guns and explosives. Without a shadow of a doubt, this invitation was not a “privilege” just mine, was it?

I find it very “funny” that “experts” say they do not trust when there is information on handwritten tickets from prisons. That this would be very amateurish, etc.

The percentage of papers I had in my hands throughout my life in prison was 99% manuscripts, even because they did not have access to computers. Today in some Units we know that this already exists.

But no one would be so stupid to “print” a Save to the street (give orders for executions, rebellions and etc.). This has to be done in the ” jega ” (bed) preferably with the “quiet” (curtain used to preserve the intimacy of the inmates during the intimate visit) “closed”.

How many times prisoners have not asked me to give a “little note” on the street, since I started in 1994. But leave these experts there, after all, as the prisoners say, “they are hat-mouthed to their feet, sir.” “Pure comedy!”.

And that laughter that only those who “lived in the middle” – empiricism that Criminology lacks so much – and here is a prose of Penitentiary Criminology – even knowing that I am swimming against all “experts”, but the “force” (empiricism) that I acquired in these more than 24 years “swimming inside the prison”, make me overcome this “tide”, which I hope one day will end, for the good of the academy – organized crime, you know what I say.

Going back to the part of empiricism, and remembering what the CCP did in the 90s, in the mega-rebellion in 2001, and the attacks in 2006, and now what we see happening, and not today, reminds us of techniques of war (TZU, 2003, pp. 28-29):

24 – Keep him tense and get tired.

Strike him where he is not ready. Execute your assaults only when you do not expect them.

The history of the CV informs us that they read Marighella’s “Mini Manual of the Urban Guerrilla”, among other works available at the time in prison.

One of the capacities of this new generation of criminal organization (let’s forget the mafias as we shamefully overcome it) is that in order to achieve its objectives, it is able to join the other criminal organization (s), faction (s), even if you have to unite with your enemy (s), at least until you reach your goal and there is no longer any need for some criminal ties.

On another occasion, I will treat the CCP as “third-generation gangs” because, because of its relevance, it must be treated in an independent article, with a sequence not yet possible to inform, in view of “criminogenic mutability” that this phenomenon has.

The Union slogan (which came to be inserted in the current Statute of the CCP) is being widely used and useful as a “flag”, so that the State’s actions do not take effect, being inhibitory incapable of weakening crime, while the Crime strengthens crime – this is ideology.

Briefly this is what I had to say to the globalized society and now I can sleep more quietly, after explaining, in a very clear way, this problem. The same way of teaching that I always cherish to have, for all my academic life.

 Whenever we talked about escape, I would listen: ” the thief’s face is running away and the police.” They have treated us as police officers, even trying to explain to them that the Secretariat was different – in SP, it does not belong to Public Security, because, at least until now, there is a specific Secretariat for prison matters, which I understand to be of ignorance extinguishes it, since the specialists work there and thus have more access to the reality (empiricism) than any other person can not see. “Every one has his face, is not he even a master?”

 

 

The bail in the project of reform of the Law of Urban Leases

 

This article deals with the new regulation of the deposit. I say new because it is more than likely that the proposal will be translated into law, although we will have to see when: the reform of Law 4/2013 has been a failure.

The amount, the update and the refund of the deposit do not change.

The amount, the update and the refund of the deposit do not change.

  • The amount of the deposit (article 36.1) remains the same: 1 month for the lease of housing; 2 months rent for different use of housing. It remains cash – a clear anachronism.
  • The update of the bond, paragraphs 2 and 3 of article 36, is also the same. You just have to put five years where it says three. The deposit cannot be updated during the first 5 years of the lease. (By the way: the update of the bond is very unusual when a contract is extended).
  • There is still no maximum term to return the deposit. The reform is not used to clarify a deadline that always lends itself to confusion. It continues to penalize the landlord if it takes more than a month to return it: the balance that must be restored will accrue the legal interest of the money after one month from the delivery of the keys if it has not been returned; a ridiculous sum that invites to delay the return.

 

The amount of the additional guarantee is limited to the deposit

The amount of the additional guarantee is limited to the deposit

The great novelty is found in the wording of section 5 of article 36. It is allowed to agree with any type of guarantee in addition to the deposit, but the amount is limited in the rent of the habitual residence.

  • The sum of the deposit and the additional guarantee may not exceed 2 months’ rent if it is less than € 750 upon signing the lease.
  • This sum can not exceed 3 months of rent if the initial amount of this goes from € 750 to € 1,200.
  • There will be no limitation on the amount of bail and additional guarantee if the monthly rent is higher than € 1,200.

There is another limit. Article 36.5.d) says that the bond can be updated each time the lease is extended, after 5 years, increasing or decreasing until it becomes equal to the monthly rent in force at the time of the extension. But the landlord can not require additional guarantees to the tenant or the update of those already provided although the monthly payment has exceeded the limits set by the update of the rent of article 18 – which is also reformed.

Of course, it will still be possible to demand a personal or bank guarantee from the tenant. Probably the limitation exposed has this effect: that more guarantees are required from tenants.

 

Do you need the services of the rental lawyer?

Do you need the services of the rental lawyer?

For inquiries in the office or online call or send a WhatsApp, SMS or Telegram. The consultations are not free. Its cost depends on the complexity of the matter.

If you want a consultation by phone call (price: 1.21 € / min if you call me from a landline, € 1.57 if you use your mobile, there is no call setup cost).

The Crime of Spreading Sex, Nudity or Pornography

The crime of spreading sex, nudity or pornography

As of September 2018, a “new” crime was inserted in our legal system which, previously, due to a lack of legal and express provision, left a gap for the real typification of the act practiced and, consequently, the application of some sanction to the author of the fact.

Due to the total lack of criminal normative prediction of the crime, the conduct of disclosing a scene of sex, nudity or pornography, regardless of the context that was included, was usually perpetrated in the crime of defamation or, civil sphere, culminating, when convicted, in reparation for moral damages to the victim.

With the new typicity that arose in 2018 the legislative gap ceased to exist, and now expressly provides for the following wording of the crime typified in art. 218-C of the Penal Code:

Art. 218-C. Offer, exchange, make available, transmit, sell or exhibit for sale, distribute, publish or divulge, by any means – including by mass communication or computer or telematic system -, photography, video or other audiovisual record containing scene of rape or rape of vulnerable or apologetic or induces their practice, or, without the consent of the victim, sex scene, nudity or pornography:

Penalty – imprisonment, from 1 (one) to 5 (five) years, if the fact does not constitute a more serious crime.

Increased penalty

§ 1 The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed by an agent who maintains or has maintained an intimate relation of affection with the victim or for the purpose of revenge or humiliation.

The crime of disclosure of sex scene

The crime of disclosure of sex scene

We will cover in this sketch, only the conduct of sex scene, nudity or pornography, leaving for another opportunity our manifestation on the disclosure of a photograph, video or other audiovisual record that contains a scene of rape or rape of vulnerable or apology or induce your practice.

The criminal type refers to offering, exchanging, making available, transmitting, selling or exposing to the sale, distributing, publishing or divulging, by any means – including by mass communication or computer or telematic system -, photography, video or other registration audiovisual (…) without the consent of the victim, sex scene, nudity or pornography.

As noted, any conduct contemplated in the nuclei of the type, read “verbs”, when involving a scene of sex, nudity or pornography without the consent of the victim, the crime of art. 218-C. It is, therefore, a formal crime, where no naturalistic result is required.

It is very important to speak, even briefly, about what is a scene of sex, nudity and / or pornography.

Nudity is the total absence of clothing; the naked in itself; is the state or condition of nu; absence of ornaments or embellishments. It should be noted, in due course, that in order for the “naked state” to be configured, there is no requirement for the display of the genitals, only the condition of being naked. Thus, when someone’s nakedness is exposed (within the criminal type discussed) without their due consent, whoever has incurred exposure will respond for the conduct of having done so.

Although the concept of sex is extensive, in this case we can conceptualize as a sex scene the registration of at least two people, practicing carnal conjunction, oral sex, anal sex, various libidinous acts … It is the record of the sexual acts of those involved in it (scene).

In the porn scene, unlike the minimum requirement of two people on the sex scene, it is enough that only one figure in it practicing pornographic acts. By also possessing an extensive concept, we can classify pornography in this sketch as anything (conduct) that seeks to exploit sex vulgarly and obscene. In our understanding, this is the most fragile way of achieving the crime typification due to the many questions that may arise for the configuration or not of the crime.

It is worth observing that the concepts of nudity, sex and pornography are very subjective and each individual has a position on the subject, but only to instruct the content of this writing, we conceptualize them on the basis of those considered as “majority” in our society, however, far from being established as true, absolute and immutable.

Thus, only the fact of incurring any of the verbs of the criminal type, provided that without the consent of the victim, disclosing the scenes already listed, the subject (man and / or woman) will commit the crime.

Another situation that should be very well discussed (and reviewed in the debates) is the issue of the “intimate relationship of affection” as a cause of increased punishment. Contrary to what it seems, the intimate relationship of the criminal type is not only about the intimate relations of sexual affection, but all those that are intimate and affectionate.

Affection means feeling of affection or inclination towards someone, friendship, passion; it is a loving connection to someone or something. Thus, innumerable possibilities of intimate relationship of affection between author and victim, not necessarily only intimate sexual relationships, as we have said above.

It is worth mentioning that the crime foreseen in art. 218-C of the Penal Code is inserted within “Title VI – Crimes against Sexual Dignity” and sexual dignity can be tainted by any person and in various forms, not necessarily through an intimate relationship of sexual affection, as can give to understand the criminal type if not studied with more attention. Let’s see:

Increased penalty

Paragraph 1 – The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed by an agent who maintains or has maintained an intimate relation of affection with the victim …

Finally, the type does not require any specific intent for the configuration of the crime foreseen in the caput of the article, as it is inserted only in §1, 2nd part, of the device in order to increase the penalty of the agent when it affects, as we observe below:

Increased penalty

§ 1 The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed (…) with the aim of revenge or humiliation.

In this way, the specific intent only falls on §2, 2nd part of the device when the agent intends to humiliate or revenge the victim for a variety of reasons, not necessarily sexual motives.

Such an observation is of the utmost importance for the application of the law according to what it envisages and not subjectively under the understanding of each individual interpreting it and in accordance with their beliefs, which would cause tremendous legal uncertainty and destabilize the purpose for which the norm was created, that is, to regulate human behavior in unison.

Certainly there are many other issues that should be better explored involving the typicity listed, but at this point it is necessary to bring to light of the discussion a little more of the materiality of the type so that the discussion about art. 218-C of the Penal Code.

Want to be inside all the contents of the Criminal Sciences Channel, including new texts on the crime of sex scene disclosure?

So follow us on Facebook and on Instagram.

We provide daily content to update students, lawyers and judicial actors.

Did The Intercept Commit A Virtual Crime By Posting The Messages?

 

Did The Intercept commit a virtual crime by posting the messages provided by a hacker?

Since last Sunday, the newspaper company The Intercept has been publishing talks of Lava Jato’s prosecutors with former federal judge Sérgio Moro.

According to information circulating on social networks and on the internet, The Intercept would have released only 1% of the content obtained through the criminal action of a hacker.

In this perspective, many doubts arose this week with these episodes. Inquiries whether the hacker could respond criminally and whether The Intercept would be committing a crime by disclosing the information illegally obtained.

 

Hacker

 

Hacker

A hacker is an individual who is dedicated, with unusual intensity, to know and modify the most internal aspects of devices, programs and computer networks.

But the term hacker is popularly used to describe people who make modifications and manipulations not trivial or unauthorized in computer systems, that is, illegally.

In 2013, the penal code was amended by the “Carolina Dieckmann Act,” a reference to the TV Globo actress, which prompted discussion about the hardening of punishments to cyber crimes after 36 photos of her have leaked on the internet.

With the law, art. 154-A and 154-B, paragraph 1 of art. 266 and the sole paragraph of art. 298 of the Criminal Code.

Despite the changes, the typification of cyber crimes depends on the fulfillment of legal requirements, as an example, which protected legal right was harmed.

Therefore, in the case of the hacker who invaded the cell phone – according to information, of the prosecutor Dallagnol – and copied / stolen the messages of the Telegram, without a doubt, committed an illegal criminal.

 

The Intercept

The Intercept

The Intercept is an online newspaper launched in February 2014 by First Look Media. The news organization was created and funded by Pierre Omidyar, founder of eBay, and its editors are Glenn Greenwald, a US lawyer, constitutional law expert and former journalist for The Guardian; Laura Poitras, filmmaker, documentary filmmaker and writer, and Jeremy Scahill, an investigative investigative journalist specializing in national security affairs. The Brazilian version began its activities in August 2016.

After all, did The Intercept, when publishing hacked content, infringe criminal law?

In the first place, we start with the constitutional precept provided for in Article 220 of CF / 88:

Art. 220. The manifestation of thought, creation, expression and information in any form, process or vehicle shall not be subject to any restrictions, in compliance with the provisions of this Constitution.

The STF, in dealing with the topic, understands that art. 220 of the Constitution radicalizes and extends the regime of full freedom of the press, because it speaks: a) that the aforementioned personality rights (freedom of thought, creation, expression and information) are safe from any restriction in their exercise, whatever is the physical or technological support of its placement; (b) that that exercise is not subject to provisions other than her own.

Therefore, press law is an activity of public interest of national interest. Any censorship measure is illegal.

Freedom of expression is a fundamental concept in modern democracies in which censorship has no moral support.

Thus, in publishing the talks, The Intercept did not commit any crime, due to constitutional protection of freedom of the press and freedom of expression.

If The Intercept had hired a hacker to commit the crime, he would certainly be liable for the crime.

 

Economic Crimes and Reparation of Damages

 

The Federal Attorney General’s Office (AGU) filed four large administrative malpractice lawsuits against the country’s main contractors, their controllers and other individuals involved in the “Lava Jato Operation”, charging approximately R $ 23 billion, which would have been diverted from the state. According to technical reports from the Federal Court of Audit (TCU) and the Administrative Council for Economic Defense (CADE), contracts fraudulent by the cartel formed by Lava Jato exceeded PETROBRAS contracts by 17% which would cost in a truly competitive market.

In total, R $ 5.6 billion are charged for the losses that PETROBRAS suffered from the over-pricing of works contracted with the cartel that defrauded bids and another R $ 17.4 billion in fines that should be applied to the defendants. In addition to reimbursement to the treasury and the payment of fines, AGU also requests the application of other penalties provided for in legislation of administrative improbity, such as the prohibition of entering into contracts with the public power and the suspension of political rights.

As can be seen, it is a question of the concomitant civil repercussion of facts that also characterize illicit of a criminal and administrative nature.

This raises the debate about a very little studied prediction of the Brazilian criminal procedure, which since 2008, with the reform implemented by law 11.719, allows the criminal court to expedite this determination in the civil sphere by fixing a minimum reparatory amount in the sentence criminal conviction (article 387, IV, CPP).

The device is still the subject of many jurisprudential and doctrinal discussions, as it involves the definition of a civil indemnity in the scope of criminal proceedings, a task for which the magistrate who acts in the area historically is not accustomed. Although this activity does not run into greater difficulties in the case of classical pecuniary offenses, in the area of ​​economic crime it encounters substantial setbacks.

This reform is part of a wider context of global rediscovery and reassessment of the victim. The incentive to repair the damages caused by the crime has been covered by several international law diplomas and, in Brazilian Criminal Law, is provided in numerous provisions of the Penal Code and special laws. It so happens that the risk of the expansion of this political-criminal movement is the potential disrespect of the accused’s guarantees and disqualification of democratic institutions.

The fixing of minimum reparatory money in the criminal conviction does not distance us from the system of relative independence between criminal action and civil action, which is subordinated to that in which it says the existence of the fact and its authorship. One more exception is created, making the court title partly liquid for enforcement purposes. One of the impasses raised is that, although bound by the recognition of the duty to indemnify ( an debeatur ), the civil court would not be subject even to the minimum value ( quantum debeatur ), which could be fully rediscussed, which does not seem appropriate, the guarantors of the accused and observed the due legal process in the criminal process.

For the purpose of immediate execution, the arbitrated value reaches only those convicted of criminal action (even in solidarity), since only they have been assured the ample defense and the contradictory. The civil liability does not intervene in criminal proceedings and the liability of third parties should be relegated to the civil field.

The issue of individualization of damages ( pro rata conviction) is controversial. We think it should be analyzed on a case-by-case basis. If it is possible to identify the specific contribution of each defendant, the better. However, the law does not make this requirement; speaks of the global harm done to the offender by the crime, and not by this or that agent. In addition, as a rule, art. 264 of the CC, which provides for joint and several liability in the obligations in which “more than one creditor, or more than one debtor, each entitled or obligated to the entire debt”.

The device constitutes a material rule, which can not be retroacted to prejudice the defendant, so that it is only valid in proceedings subsequent to the entry into force of Law 11,719 / 08.

The STF manifested itself in this sense in the records of Criminal Review No. 5437 / RO, where the conviction of former federal deputy Natan Donadon was dismissed for the reparation of the damages caused by the crime of embezzlement in favor of the State of Rondônia, in the amount of more than R $ 1.6 million, since the standard is subsequent to the facts found and the very outbreak of the prosecution, and could not be retroactive to harm the defendant [1].

An explicit request by the prosecutor and a specific, albeit limited, instruction on the value of the damage is required, failing which the principle of correlation is violated [2] . We understand that the appropriate procedural time to make such a request need not be restricted to the complaint or complaint, since the amount (and not the existence) of the damage may still not be sufficiently clear or fully demonstrated. However, the request for minimum indemnity arbitration must be made in time to allow the defense to be exercised by the adversary.

In the judgment of AP 470 (“Mensalão”), the Federal Supreme Court had an opportunity to express its views on the matter, but did not settle the issue. In that case, the Public Prosecutor’s Office only formulated a formal request for reparation in the event of its final allegations. The position of Minister Rapporteur Joaquim Barbosa prevailed, which stated that the application of art. 387, IV, of the CPP, would not depend on the complaint to bring an express request to that effect. Nevertheless, in this particular case, the extreme complexity of the facts and the intense overlapping of the crimes would make it impossible to securely establish a value, albeit a minimum, for redressing the damages caused by the crimes committed by each of the defendants, which would require an action of a civil nature, with specific probation delay. Therefore, the non-fixation of the value was accompanied by a statement of reasons and demonstrated the difficulty of determining values ​​determined in cases involving economic crimes [3] .

 

Jurisdictional Service| Criminal Preceeding

Jurisdictional Service| Criminal Preceeding

 

Evidence of the amount of the damage can not be produced ex officio by the judge, otherwise there will be an offense against the accusatory system and assignment of a high burden to the defense. The magistrate, however, has the faculty to clarify the doubts that arise. The non-fixing of a specific value requires proper justification and constitutes an autonomous chapter of the sentence.

It should not be forgotten that there is also a public interest underlying the reparation of damages to the victims, in order to maintain the integrity of the legal system violated by the crime. This legitimates the Public Prosecutor’s Office to act as prosecutor in favor of the victim, but does not rule out the possible need for the person (individual or legal entity) to come to the file, spontaneously or through provocation, to provide the information to the appropriate jurisdictional service.

Not every offense will involve such an establishment, since the minimum value should be limited to fully verifiable material damages, since the investigation in criminal proceedings can not be subverted for the purpose of specific analysis of material damages and loss of profits.

In order to quantify the damages caused by the crime, the criminal judge must pay attention (1) to the legal interest protected by the criminal law, (2) correctly identify the offended and (3) what exactly the extent of the damage. Such parameters are especially important in the area of ​​Economic Criminal Law, where crimes reach supraindividual assets with multiple victims. Each crime will require its own criteria and, more often than not, in these incriminations, there will be a need for an expert report that demonstrates values ​​or express information of the body responsible for controlling the protected legal good (BACEN, CADE, CGU, COAF, CVM, DRCI, INSS, Internal Revenue Service, regulatory agencies in general, etc.), specifying specific figures that can be attributed individually to each of the defendants, who in turn can discuss their civil liability (guilt, solidarity, consent the offended, co-responsibility, etc.) at the opportune moment.

From the determination of the legal asset and the offended person, which is not necessarily the holder of the legal right, it will be possible to have a sense of where to seek clarification about the damage caused. Such searches are essential if erroneous criteria are not used for crimes of distinct categories ( eg tax crimes and economic crimes).

Ideally, this should be done already in the preliminary investigation, either by the judicial police or by the Public Prosecution Service (while the private investigation in Brazil is not yet formally admitted), since it is not necessary to obstruct the judicial investigation with this type of investigation, which could even give rise to partial correction.

Another point discussed in the reparation of damages is the possibility of qualification, as an assistant to the prosecution of legal entities [4] . In particular, we understand that the expansion of the role of art. 268 of the CPP is a measure of rationalization of criminal proceedings for the protection of fundamental rights, of which, moreover, legal persons are also recipients, insofar as they relate to the execution of their institutional activities. Thus, if the spirit of the reform implemented by Law 11,719 / 08 was to increase the participation of the victim, according to an international movement in this sense, there is no valid argument to prevent the legal person victim – and the company ( public or private) can be a victim of crimes, like PETROBRAS – if it qualifies as an assistant to the prosecution.

Lastly, it is assumed that the measure provides for a speedy investigation and expedites the reimbursement of the actual damages of the victims (public or private individuals or legal entities), an objective to be sought within a universal system for the defense of human rights. The reparation of the damage is not confused with the penalty and should be sought with even greater impetus in the case of economic crimes.

Victims’ rights must be made compatible with the rights of defendants, both of which are recognized as subjects, not as objects of the proceedings. As a result, the judge will only set a minimum amount to compensate for the damages caused by the infraction if he is certain about his estimate. In doubt, the rule of treating the presumption of innocence should prevail and the indemnity should be referred to the appropriate forum.

 

Principle of Insignificance | Crimes That Criminal Law Does Not Punish

 

 

This article addresses the fact that the courts fail to punish certain crimes. This is due to a choice of criminal policy, due to the application of the so-called insignificance or trifle principle, according to which criminal law should not be used for conduct that is totally harmless or incapable of damaging the legal good.

In fact, criminal law should only be used when there is a lesion or threat of injury more relevant to a protected legal asset, such as injury to life, public administration, physical integrity, property, etc.

The principle of insignificance has its roots in Roman law and was introduced in criminal law in 1964 through the work of the German jurist Claus Roxin. This principle was also called the principle of trifle by another German jurist, Klaus Tiedemann.

According to this principle, human conduct, although criminal, considered to be socially inadequate, is now considered atypical (its criminal character being removed) because of the small damage caused to the legal good, which does not represent an important loss, of the legal right protected, or to the integrity of the social order itself.

 

The code of conduct

 

The code of conduct

Technically, this principle is considered a supra-legal cause excluding materiality, and although it is not supported by law, it is subject to doctrine and jurisprudence, based on the minimum intervention of criminal law.

Today, in Brazil, there is consensus on the possibility of applying the principle of insignificance, however, there is still divergence among Brazilian courts, for which crimes this principle could be applied, as in cases of crimes against the environment.

In order to establish guidelines for its application, the Federal Supreme Court instituted certain requirements, namely: the minimum offense of the agent’s conduct, no social hazard of the action, reduced degree of reprobability of the behavior and the inexpressiveness of the legal injury provoked. (Federal Supreme Court, HC nº 84.412 / SP, Rapporteur Minister Celso de Mello, in DJ 19/11/2004).

Despite these guidelines, there is still resistance from the courts and even from the STF to the application of this principle, when it comes to examining the personal conditions of the criminal, which should not be taken into account. This is evident in cases where recidivism deviates the application of insignificance or trifle.

Thus, Roxin’s contribution to the Criminal Law on the principle of insignificance is unquestionable, and judges should, whenever possible, apply it, so as to reserve criminal law only for the most relevant issues of life in society. In this way, it would avoid the excessive application of penalties, especially those deprived of liberty, in the face of the disaster that is the Brazilian prison system.