Colombians are not the only Southern Hemispherians to suffer the ignominy of “parapolitics” — the corrosion of social and political life by the criminal and paramilitary groups who keep the Cartagena-Miami marching powder pipeline pumping
What is distinctive about Brazilian militia groups — aside from the ongoingly timid coverage of the issue that followed the kidnapping and torture of a journalistic team from O Dia — is that they might very well be waiting behind you for a cappuccino on the calçadão.
They exude entrepreneurialism, profiting handsomely from every black market from van service to Internet connection. Many are connected in high places. Consider the case of a top aide to the chief of the state judicial police , Félix Tostes, gunned down Sopranos style in July 2007:
A general overview of the zeitgeist of that fascinating year:
Brazilian legislators are currently reviewing the Penal Code, and it is interesting to observe the more central role they assigned to “militia” crimes among the gamut of “organized” crimes, which is being redacted.
Source: Âmbito Jurídico
This article seeks to examine, simply and objectively, the proposals for defining the crime of participation in a militia in the New Penal Code, by means of a brief analysis of … Article 256 (which defines a criminal organization), Article 256, Paragraph 2 (which defines a militia) and article 255 (which defines a criminal conspiracy.)
The proposed amendment to the Penal Code establishes a rule for defining a criminal organization, as follows:
Art. 256. Three or more persons organize themselves, in a stable and permanent manner, for the specific purpose of committing crimes whose maximum penalty is greater than or equal to four years, making use of an organizational structure with a division of labor and a definite hierarchy and undertaken to obtain undue advantage of some kind.
Penalty – 3 to 1o years in prison, without prejudice to sentences related to crimes committed by the organization as a whole.
Paragraph 1. The sentence increased by 50% if the criminal organization is armed, if one or more of its members are civil servants, or if the crimes committed by the group are transnational in nature.
Thus, a criminal organization is in effect when the following elements are present: (A) Three or more persons (an objective that defines the group as involving fewer persons than a gang or mob, as foreseen in Article 288, No. 288 of the present Code;. The group must possesses : (B) Stability and permanence of relationship; ( C) A scope of criminal activity in the commission of crimes whose maximum possible punishment is equal or superior to four years; (D) An organized structure; (E) a division of labor; (F) A defined hierarchy; (G) Be formed with the intention of acquiring wealth.
The legal definition of a militia describes it as a type of organized crime that seeks illegal dominance over a given territory using violence or the threat of violence, and claiming the exclusive right to provide security, electricity, and so on. The qualifying definition is as follows:
2. A militia is a criminal organization designed to exercise illegitimate dominion over a specific space, using violence or threat of violence, and especially when that type of action is taken against community or resident associations, while demanding the surrender of real property or valuables of any appreciable value, in exchange for security services andalternate transportation, or the furnishing of water, cooking gas, electricity, auto fuel, or any other service or activity not regulated and authorized by the public authority, as well as unofficial services or activities that inhibit free elections.
Penalty – Prison sentence of 4 to 12 years, without prejudice to any other crimes committed by the militia organization.
The Penal Code project, in fact, intends to delete the categories of gangs and conspiracies, creating three types of criminal actor in order to protect public order when groups join together to commit crimes. The category “criminal organization” will no longer exist, for example. Illegal organizations will be classified as criminal organizations, associations and militias.
First, we must not forget to deal with the penal definition for criminal association proposed in Article 255 of the Code. If the Code is approved by Congress, this will imply three or more persons associating to commit a crime. As we read …
Art. 255. Three or more persons, in a stable and permanent manner, join together to commit crimes
Penalty — One to five years, without prejudice to other criminal acts committed by the association.
Paragraph One. The penalty is raised by 50% if the association is armed.
From our reading of the Penal Code on this issue, it seems that the criminal organization will now be treated as a subsidiary figure. On this point, we should note growing surprise over the reduction in the number of persons needed to typify this crime. It is natural to expect that with the growth of the police and other law enforcement officers of the State, and considering that these are crimes (originating in in gangs and factions) that disturb the peace, a larger number rather than a smaller number of offenders should be involved in cases of public commotion.
In any event, in the projected New Civil Code the classic figure of the gang or faction is extinct, so that new nomenclatures and characterization of misconduct can be devised for those who act collectively to commit crimes.
The only intelligent question I can think of is to imagine how defense attorneys will attack subparagraphs (D), (E) and (F): organized, division of labor, and hierarchy.
According to every Internet guru you meet, social coordination and value creation requires none of these qualities any longer.
Indeed, militias have already learned this post-Taylorist lesson: They operate using nonprofit community cooperatives as fronts. And there are many reports of coercion of photos using the camera on a cellphone: Prove you voted 45 and win a fantastic door prize!
Filed under: Brazil |