Brazilian Penal Code: Crimes, Sentencing, and Parole

Brazil’s Penal Code, enacted as Decreto-Lei No. 2.848 on December 7, 1940, is the country’s central criminal statute. It defines what conduct counts as a crime, sets the penalties for each offense, and lays out the rules for how responsibility, defenses, and sentencing work across every Brazilian jurisdiction. The code has been amended repeatedly since 1940, including a major revision of its General Part in 1984 and later updates addressing feminicide, cybercrime, and corruption.¹

What the Code Governs

Two foundational principles sit in Article 1: legality and anteriority. No one can be punished for conduct that was not already defined as a crime by written law before the act took place. The state cannot invent charges after the fact. The guarantee runs one direction only. Under Article 2, a new law that benefits the defendant applies retroactively, so if the legislature decriminalizes conduct or lowers a penalty range, people convicted under the harsher rule can benefit even after their conviction is final.¹

Article 5 sets the territorial reach. The code applies to every crime committed within Brazilian territory regardless of the nationality of the offender or victim. Territory includes the landmass, territorial waters, and Brazilian government vessels and aircraft wherever they are located. Private Brazilian ships on the high seas and private Brazilian aircraft in international airspace also fall within the code’s reach.¹

Article 7 extends jurisdiction beyond the borders in two tiers. The unconditional tier lets Brazil prosecute crimes committed abroad that target the life or liberty of the President, undermine public credit or confidence in the government, damage federal or state property, or involve corruption by a public official. In those cases Brazilian law applies even if the person was already acquitted or convicted in the foreign country. The conditional tier lets Brazil prosecute crimes committed abroad by Brazilian nationals, or crimes covered by a treaty obligation, but only when the offender enters Brazilian territory, the conduct is also a crime where it was committed, extradition is available under Brazilian law, and the person has not already been acquitted or fully served a sentence abroad.²

How the Code Is Organized

The code has two halves. The General Part, Articles 1 through 120, sets the rules that govern every criminal case: principles of applicability, definitions of intent and negligence, sentencing guidelines, and the framework for criminal responsibility. The Special Part, starting at Article 121, catalogs each specific offense the state recognizes, from homicide to fraud to crimes against public administration, along with its penalty range.¹

Brazilian law also draws a hard line between two categories of illegal conduct. The Law of Introduction to the Penal Code (Decreto-Lei No. 3.914) defines “crimes” (also called “delitos”) as offenses punishable by imprisonment in closed or semi-open facilities, and “misdemeanors” (“contravenções penais”) as lesser infractions carrying only simple detention or fines. Misdemeanors are governed by a separate statute and follow different procedural rules, so the Penal Code itself does not cover them.³

The Three Types of Penalties

A guilty verdict under the Penal Code carries one of three broad categories of punishment.

Imprisonment

Deprivation of liberty is the most severe category, covered in Articles 33 through 36. “Reclusão” is the harsher form: depending on the sentence length, the convicted person begins serving time in a closed, semi-open, or open regime. “Detenção” normally starts in a semi-open or open regime, though a prisoner who violates the rules can be transferred to a closed facility.¹

Restrictive Rights

Articles 43 through 48 let the judge replace imprisonment with non-custodial penalties for qualifying offenses. These include community service at hospitals, schools, or public entities; temporary bans on practicing a profession; suspension of a driver’s license; and required weekend confinement at a halfway house.¹

Under Article 44, substitution is available only when all of the following are true: the prison term imposed does not exceed four years; the crime was not committed with violence or serious threat (for negligent crimes, substitution is allowed regardless of length); the defendant is not a recidivist, unless the judge finds substitution socially recommendable and the prior conviction was for a different type of crime; and the defendant’s background, conduct, and motives indicate substitution is sufficient. For sentences of one year or less, a single non-custodial penalty or a fine can replace the prison term. For sentences between one and four years, the judge imposes two non-custodial penalties, or one non-custodial penalty plus a fine.⁴

Fines

Articles 49 through 52 establish a fine system based on “fine-days.” The judge sets the number of fine-days somewhere between 10 and 360, then assigns a monetary value to each day based on the defendant’s financial situation. Each fine-day cannot be worth less than one-thirtieth of the prevailing highest monthly minimum wage, and it cannot exceed five times that wage. The total is paid into the national penitentiary fund.¹

How Judges Calculate Sentences

Sentencing follows a structured three-phase process under Article 68. In the first phase, the judge sets a base penalty within the statutory range by evaluating factors listed in Article 59, including the defendant’s culpability, criminal history, social conduct, personality, motives, the circumstances of the crime, its consequences, and the victim’s behavior. In the second phase, the judge adjusts the base penalty up or down according to statutory aggravating and mitigating circumstances. In the third phase, any special causes of increase or decrease prescribed by statute for that specific crime apply.¹

Article 61 lists factors that always raise the penalty when they are not already part of the crime’s definition: recidivism, base or trivial motives, treachery, use of poison or fire, targeting a child or elderly person, abusing a position of authority, and committing the crime against a family member. Deliberately getting intoxicated to facilitate the offense counts too.

Article 65 works the opposite way. The penalty is always reduced when the offender was under 21 at the time of the act or over 70 at the date of judgment. Other mitigating factors include committing the crime for reasons of genuine social or moral value, voluntarily reducing the harm or repairing the damage before trial, spontaneously confessing to authorities, and acting under the influence of violent emotion provoked by an unjust act of the victim.

Major Crimes and Their Penalties

Homicide and Feminicide

Article 121 provides a layered framework for killing another person. Simple homicide carries six to twenty years of imprisonment. Qualified homicide, which applies when the killing involves factors like payment, use of poison, ambush, or a method that creates widespread danger, raises the range to twelve to thirty years. Negligent homicide, where death results from carelessness or lack of skill rather than intent, carries one to three years and covers fatal traffic accidents caused by reckless driving, surgical errors, and similar unintentional deaths.¹

Law No. 13,104 of 2015 added feminicide as a qualifying circumstance of homicide. A killing qualifies as feminicide when it occurs within the context of domestic violence or is motivated by contempt for or discrimination against the victim’s status as a woman. The penalty range matches qualified homicide at twelve to thirty years. The sentence increases by one-third when the feminicide is committed against a pregnant woman, within three months after childbirth, against a person under 14 or over 60, against a person with a disability, or in the presence of the victim’s child or parent. The 2015 law also classified feminicide as a “heinous crime,” which triggers harsher rules on parole eligibility and sentencing progression.⁵

Theft, Robbery, and Latrocínio

Article 155 defines theft (“furto”) as taking someone else’s movable property with the intent to keep it. The basic sentence is one to four years of imprisonment plus a fine. When the theft involves breaking through a physical barrier, using a skeleton key, or exploiting a victim’s reduced awareness, the penalty rises to two to eight years plus a fine.⁶

Robbery (“roubo”) under Article 157 is the violent counterpart. The element that transforms theft into robbery is the use of force or threats against a person. The base sentence is four to ten years plus a fine, increased by statutory fractions when the robbery involves a firearm or causes serious bodily injury.⁷ The most severe property crime is “latrocínio,” a robbery that results in the victim’s death, carrying twenty to thirty years and a fine.⁸

Embezzlement and Corruption

Article 312 defines “peculato” (embezzlement) as a public official taking money, valuables, or other movable property they have access to by virtue of their position. The same penalty applies when the official helps someone else remove the property by exploiting the access their role provides. The range is two to twelve years plus a fine.¹

The code treats the two sides of a bribe as separate crimes. Passive corruption under Article 317 targets the public official who requests or accepts an improper advantage in connection with their duties. Active corruption under Article 333 targets the private party who offers or promises the bribe. Both carry two to twelve years of imprisonment plus a fine, and both increase by one-third if the bribe actually causes the official to delay, omit, or violate their duties.¹

Cybercrime

Law No. 12,737 of 2012, commonly called the “Carolina Dieckmann Law,” added Article 154-A to criminalize unauthorized access to another person’s computer or electronic device through the breach of a security mechanism. The offense covers accessing a device to obtain, alter, or destroy data, or to install malicious software for unlawful advantage.⁹ The original penalty of three months to one year of detention plus a fine was sharply raised in 2021 by Law No. 14,155 to one to four years of imprisonment. When the intrusion results in disclosure of private communications or trade secrets, the penalty climbs to two to five years plus a fine.

Legal Defenses

Article 23 lists four situations where an act that would otherwise be criminal is not treated as one: state of necessity, legitimate defense, strict compliance with a legal duty, and the regular exercise of a right. In any of these cases, a person who goes beyond what was necessary still faces liability for the excess, whether intentional or negligent.

Under Article 25, a person acts in legitimate self-defense when they use proportionate means to repel an unjust attack that is either ongoing or about to happen. The defense protects the person’s own rights or those of someone else, and it turns on two constraints: proportionality and immediacy. Shooting an unarmed attacker who threw a punch would fail the proportionality test. Retaliating hours after the original attack would fail the immediacy test.¹

Article 24 covers state of necessity: breaking the law to avoid a greater harm the person did not cause and could not otherwise escape. The classic example is someone who breaks into a building to flee a wildfire. The defense does not apply to a person who has a legal duty to face the danger, such as a firefighter. Even when the full defense does not apply, a court can reduce the sentence by one-third to two-thirds if the sacrifice demanded of the person was unreasonable under the circumstances.¹

Who Can Be Held Responsible

Article 27 sets the age of criminal responsibility at 18. Anyone younger who commits an illegal act is not prosecuted under the Penal Code at all, and is instead handled under the Statute of the Child and Adolescent (Law No. 8,069 of 1990), which emphasizes rehabilitative measures. The 1988 Constitution reinforces this boundary.¹

Article 26 addresses mental incapacity. A person is exempt from punishment if, at the time of the act, a mental illness or incomplete mental development left them entirely unable to understand that what they were doing was illegal, or unable to act in accordance with that understanding. In those cases the court imposes security measures such as mandatory psychiatric treatment instead of a prison sentence. When the incapacity is partial rather than total, the person is still convicted but receives a sentence reduced by one-third to two-thirds. The impairment must have existed at the exact moment the crime was committed; a later-developing condition does not retroactively erase responsibility.⁶

Statute of Limitations

Article 109 ties the deadline for prosecution to the maximum penalty the crime carries. The more serious the offense, the longer the state has to bring charges. Before a final conviction, the time limits are:

20 years if the maximum penalty exceeds 12 years
16 years if the maximum penalty exceeds 8 years but not 12
12 years if the maximum penalty exceeds 4 years but not 8
8 years if the maximum penalty exceeds 2 years but not 4
4 years if the maximum penalty is between 1 and 2 years
2 years (known as 3 years under recent amendments) if the maximum penalty is less than 1 year

Once a conviction becomes final, a separate calculation based on the actual sentence imposed applies, which can shorten the remaining window. Certain procedural events, such as accepting a formal complaint or issuing an arrest warrant, interrupt the clock and restart the period from zero.¹

Parole and Conditional Release

Article 83 allows a prisoner to be released before the end of their sentence under supervised conditions. The fraction of the sentence that must be served depends on the offender’s history and the type of crime. For a first-time offender convicted of an ordinary crime, the threshold is one-third of the sentence. Repeat offenders must serve at least one-half. For convictions involving heinous crimes, torture, drug trafficking, or terrorism, the requirement jumps to two-thirds, and the prisoner cannot be a repeat offender for the same category of crime.

Beyond time served, the prisoner must show good behavior during incarceration, demonstrate aptitude for earning a lawful living, and have repaired the damage caused by the crime unless unable to do so. If the prisoner violates the conditions of release, the court can revoke parole and require the remainder of the sentence to be served in full.¹

1
Planalto. Decreto-Lei 2.848 – Código Penal
2
United Nations. Brazil Legislative Series – Book 2
3
Planalto. Decreto-Lei 3.914 – Lei de Introdução do Código Penal
4
Conselho Nacional de Justiça. Training Guide on Alternatives to Imprisonment IV
5
Legal Information Institute. Lei Federal 13.104/2015 – Lei do Feminicídio
6
WIPO Lex. Criminal Code, Brazil
7
United Nations. Brazil National Legislation on Piracy and Armed Robbery
8
Conselho Nacional de Justiça. Executive Summary – Sentencing Decision-Making
9
Legal Information Institute. Lei 12.737 de 30 de Novembro de 2012 – Lei Carolina Dieckmann