Public security experts assess that the fourth substitute by rapporteur Guilherme Derrite (PP-PL) to the Antifaction bill (PL) may limit the actions of the Public Prosecutor’s Office (MP) against organized crime by stating, in the article 5that the crimes provided for in the law are investigated by police investigations, without mentioning the prosecutor’s offices. 
The professor at the Pontifical Catholic University (PUC) of Rio Grande do Sul and member of the Brazilian Public Security Forum, Rodrigo Azevedo, argued to Brazil Agency that the text limits the investigation model, reinforcing the police investigation as a practically exclusive route.
“This reduces the space for investigations carried out by the Public Ministry, such as those conducted by the Special Action Group to Combat Organized Crime, and contradicts the already consolidated understanding of the STF that the MP has investigative power.
According to the professor, there is no explicit prohibition, but the procedural structure created by art. 5th transforms the inquiry into the only means of investigation.
The project’s rapporteur, when questioned, said that he used models from similar legislation to write the text and that he consulted associations of prosecutors to contribute to the writing. Even so, he promised to adjust the text so that there was no doubt about the role of the Public Ministry in combating factions and militias in the country.
“That doesn’t exist. My opinion reinforces the investigative power of the MP and the police. In any case, I can transform criticism into a suggestion and improve the text so that there are no doubts or misinterpretations. My intention has always been to improve institutions.”
The law professor at PUC de Minas, Luis Flávio Sapori, assessed that, the way it was written, the text creates “interpretive confusion” and an eventual power struggle between delegates and prosecutors, which could be a serious setback.
“The rapporteur clearly states that the crimes provided for in the Legal Framework must be investigated by police investigation only. It does not make any sense to delegate the prerogative of investigating organized crime in Brazil to police investigations alone. This could prevent the MP from carrying out an autonomous investigation, without going through a police investigation”, he stated.
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Enhance text
For Sapori, the substitute has some points that need to be improved to prevent the “confusing legislation” from favoring organized crime through the use of good lawyers to block legal processes.
“This will make the investigation process more complex, it will create mechanisms that can cast doubt on who has to judge, whether it is the state or federal courts, which can generate a series of legal controversies that can be put to good use by good defenses against organized crime.”
According to the expert, there is no need to create a new criminal type. He defended that the changes should all be concentrated in the Criminal Organizations Law (Law 12,850 of 2013).
“This entire legal framework must basically involve changes to the 2013 law on criminal organizations. It makes no sense to create another criminal type, as they are proposing now. This is not justifiable. A bit of rationality is needed to take advantage of the legislation that already exists and improve it”, concluded the professor.
For the professor at PUC in Rio Grande do Sul, Rodrigo Azevedo, it would also be necessary to reduce the sentence for members of factions who are not leaders, are first-time offenders and are not involved in violent actss.
“It was an important mechanism for differentiating roles within organizations. In practice, leaders and rank-and-file members began to be treated on the same level for 20 to 40 years. [de prisão]which discourages collaboration, hinders investigations and increases the incarceration of people with low relevance in the criminal structure”, he explained.
Understand
The Antifaction PL, renamed the Legal Framework for Combating Ultraviolent Organized Crime in Brazil, was sent by the federal government to the Chamber after the operation in Rio de Janeiro that resulted in 121 deaths, including four police officers.
THE objective of the PL was to toughen penalties, improve the mechanisms of investigation and economic suffocation of these organizations, in addition to integrating the security forces in the fight against militias and factions.
When nominating to the rapporteur Deputy Derrite, then Secretary of Public Security of São Paulo, the President of the Chamber, Deputy Hugo Motta (Republicanos-PB), created friction with the Executive Branch, which complained that the choice “contaminated the debate”.
Since then, the text has undergone four changes, including the exclusion of the provision that the PF would only act against organized crime if provoked by the governor. THE rapporteur always denied that the changes would affect the duties of the Federal Police.
Before the publication of the latest opinion, released on Wednesday night (12), the Ministry of Justice and Public Security assessed that the project remains problematic and could lead to a legal chaos in the country.
Like the federal Executive, state governors also asked for more time to vote on the project, which was scheduled to be analyzed this week. As a result, the President of the Chamber decided postpone the vote for next Tuesday (18), to allow time for further editorial adjustments.
