Carlos Eduardo A. Japiassú is Professor of Criminal Law at the Federal University of Rio de Janeiro and Director of the PhD Program at Estácio de Sá University. He is also the Secretary General of the International Association of Penal Law (IAPL).
- Introduction
The various possibilities for allocating blame for criminal offending are always important issues in Brazil, especially in recent years, with the emergency of punishing large corruption scandals by the Federal Justice System. The issues are numerous, including whether all perpetrators and accomplices should be punished equally or if they deserve different degrees of punishment according to their culpability. Aiming to answer this question, three main theories have been developed within Brazil, and Brazilian legislators have explicitly adopted some of them. In response to Professor Stewart’s recent article drawing on the Brazilian experience with the unitary theory of perpetration, I provide here an overview of these three theories to reflect more on the potential example Brazil may offer international criminal justice.
- The Pluralist Theory
For the so-called Pluralist Theory, each individual who commits a particular wrong shall be punished particularly (delictum sui generis). This maxim means that there must be as many crimes as participants in the criminal activity, as distinct from a single crime that various actors participated in. The Pluralist Theory has not been adopted by the Brazilian legislation as a whole, but, exceptionally, the Penal Code includes certain examples of its use. These include: article 124 (abortion committed by a pregnant woman or with her consent); article 126 (abortion committed by a third person with the pregnant woman’s consent); articles 217-A (rape of a person under 14 years old); article 218 (inducing someone under 14 years old to satisfy someone else’s sexual interest); art. 235 (bigamy) (marriage by an unmarried person to someone already married, knowing this fact); articles 317 (soliciting or receiving bribery) and 333 (offering or giving bribery).
- Dualist or differentiated theory
According to this theory, there is only one single criminal act and forms of participation differ on two distinct levels. Thus, the main activity is carried out by the perpetrator, whereas accessory participation exists on a lower plane, such that it is punishable with a less severe penalty. A system of this sort creates two conceptual positions: perpetrator and accomplice. According to the Dualist or differentiated theory, each of the various modes of liability assigning wrongdoing to a particular actor fall within one or the other of these two families. Convincing an unwitting child to carry out a crime on one’s behalf is a form of perpetrating the crime; providing someone with mere assistance in carrying out the crime is a species of accessorial liability.
In Brazil, the 1830 Criminal Code (articles 4, 5 and 6), as well as the 1890 Penal Code (articles 17 e 18) adopted this dualist theory, distinguishing perpetrators and accomplices. The structure and content of these articles revealed an assumption that multiple actors joined together to bring about a single criminal offence, which they committed by making a main or a secondary contribution. Although Brazilian courts largely applied it prior to 1940 (see below), many lawyers and scholars of the period sharply criticized it. For instance, Justice Nélson Hungria,[1] member of the Brazilian Federal Supreme Tribunal from 1951 to 1961, argued that the differentiated approach was too complicated and exotic. These criticisms led to the adoption of the unitary theory of perpetration in the 1940 Penal Code, which Professor Stewart’s article references.
- The Unitary Theory
The Unitary Theory of Perpetration rejects the distinction between perpetrator and accomplice, positing that all participants are responsible for the crime they contributed to.[2] Although this unitary theory has faced many criticisms in Brazil, it came to represent a pragmatic solution to difficulties lawyers, judges and scholars experienced with differentiated modes of liability in this country. Thus, when the Brazilian legislature formally announced a unitary theory of perpetration in article 25 of the 1940 Penal Code, it intended to bypass much of the difficulty the differentiated system was perceived to have produced by relating perpetratorship and causation (article 11).
Nevertheless, it bears stressing that the 1940 Penal Code has always maintained a certain relationship with the differentiated theory, because, when addressing sentencing in article 45 of the Code, the penalty imposed on the organizer of a criminal cooperation is elevated vis-à-vis other perpetrators and/or accomplices. At the same time, article 48, II, of the Code established that the penalty can be reduced if the individual’s conduct was less important or if he or she decided to take part in a crime different from the one which was committed. Moreover, the General Part of the 1984 Penal Code has expressly watered down the Unitary Theory adopted by the 1940 Penal Code by allowing the punishment of offenders in accordance with their culpabilities. The resulting position in current Brazilian criminal law is therefore considered to be in between unitary and differentiated theories.
Therefore, in contemporary Brazilian Penal Law, blame attribution follows a mixed unitary theory. On the one hand, the chapeau of article 29 of the Penal Code reflects the unitary theory by insisting that “whoever, in any way, concurs for the crime is under the penalties attributed to it.” On the other, the Code elsewhere recognizes the differentiated theory to some extent by instructing courts to have regard for the gravity of the penalty. As a consequence, although the concept of perpetrator and accomplice is not articulated anywhere in the Brazilian Penal Code in keeping with the unitary theory of perpetration, it is possible to assign different penalties to each of the participants, in line with the differentiated theory.
- Conclusion
The adoption of the mixed unitary theory in Brazilian Penal Law is well accepted in the country. Today, there are few debates about its propriety or conceptual coherence within the Brazlian legal community, perhaps because the unitary theory provides a pragmatic answer to problems raised in criminal cases. Besides, Brazilian criminal law scholars have not tended to be especially open to innovation. This legal conservatism is no doubt a feature of Brazil’s relative isolation: it is the only Portuguese speaking country in the Americas and most of the population lives close to the Atlantic Coast. These factors help produce a culture that, despite our initial import of the unitary theory all those decades ago, now has difficulties accepting foreign innovations in general and, among penalists, arguments against new trends and changes are common.
Thus, a pragmatic approach to blame attribution plus a certain legal resistance to change may explain the longevity of the Unitary Theory in Brazil to this day. Of course, it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts. That said, considering the different approaches of the Ad Hoc International Criminal Tribunals and of the International Criminal Court, it may be useful to consider the Unitary Theory as a simpler tool to answer this question.
[1] Nilo Batista, Concurso de agentes. Rio de Janeiro: Lumen Juris, 2005.
[2] Roberto Lyra, Comentários ao Código Penal, Vol. II. Rio de Janeiro: Forense, 1958, p. 317.