Crimes Against Public Administration: Embezzlement and Bribery

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Crimes against public administration protect the integrity of the exercise of state functions and include conduct such as embezzlement, passive and active bribery, extortion by a public official, and dereliction of duty.

These offenses are set out mainly in Articles 312 to 359 of the Penal Code and involve public officials and private individuals who hold a position of trust with the State. The Anti-Crime Package reform increased penalties and made the treatment of these crimes stricter.

Embezzlement

Embezzlement, defined in Article 312, occurs when a public official appropriates money, valuables, or any movable property held by virtue of the position, or diverts it for the benefit of the official or a third party. The penalty is a prison sentence of two to twelve years, plus a fine.

There are several forms: embezzlement by diversion; theft-type embezzlement (when the official takes advantage of the ease the position provides to take the property); and negligent embezzlement, in which the conduct results from negligence and the offense is no longer punishable if the loss is repaid.

Electronic embezzlement, a form added by lawmakers with the arrival of digital technology, punishes an official who enters or helps enter false data, or improperly alters or deletes correct data, in public administration computer systems. This offense has gained importance as public services have gone digital and reliance on electronic systems to manage public funds has grown.

Passive and Active Bribery

Passive bribery (Article 317) is committed by a public official who requests, receives, or accepts an undue advantage because of the position. Active bribery (Article 333) is committed by a private individual who offers or promises such an advantage. Both carry a prison sentence of two to twelve years.

The penalty may be increased by one third when the conduct leads the official to delay or omit an official act, or to perform one in breach of official duty. In cases involving large sums and criminal organizations, specific laws apply, such as the Anti-Crime Law and the Criminal Organizations Law.

So-called “influence peddling” (Article 332) is related to active bribery and punishes a private individual who requests an advantage on the pretext of influencing an act carried out by a public official. It differs from active bribery because the offender does not necessarily have real influence; it is enough to exploit the appearance of influence to obtain an undue advantage from others.

These offenses are set out mainly in Articles 312 to 359 of the Penal Code and involve public officials and private individuals who hold a position of trust with the State.

Other Relevant Crimes

Extortion by a public official (concussão, Article 316) occurs when an official demands an undue advantage, which amounts to extortion committed through the position. Dereliction of duty (Article 319) punishes an official who fails to perform an official act in order to satisfy a personal interest or feeling. Breach of official secrecy (Article 325) is also on this list.

Effects of a Conviction

In addition to a prison sentence, a conviction may result in loss of public office, ineligibility to run for office, an obligation to reimburse the public treasury, and suspension of political rights. The Clean Record Law (Ficha Limpa) broadens these consequences in the electoral sphere.

Impact of the Anti-Crime Package

Law 13.964/2019 made significant changes to the rules governing crimes against public administration. It expanded the list of heinous crimes, reinforced the rules on progression to less restrictive custody regimes, and set stricter limits on benefits in cases involving embezzlement and passive and active bribery committed in the context of a criminal organization.

The Anti-Crime Package also refined the non-prosecution agreement, a mechanism that allows, in specific circumstances, a case to be suspended or avoided in exchange for a formal confession and compliance with obligations such as repairing the harm. Applying this mechanism to less serious offenses has become strategically important for the defense, but it depends on meeting strict legal requirements.

Crimes Committed by Private Individuals Against Public Administration

The Penal Code devotes a separate chapter to crimes committed by private individuals against the administration, set out in Articles 328 to 337-A. Usurpation of public office, resisting an official, disobedience, contempt of a public official, smuggling, customs evasion, and failure to pay social security contributions make up this group, each protecting its own legal interest.

In parallel, Law 12.846/2013 governs the administrative and civil liability of legal entities for acts harmful to domestic or foreign public administration. The law provides for substantial fines and leniency agreements, and it calls for structured compliance programs, reinforcing the need for consistent internal anti-corruption policies in companies with commercial or contractual relationships with the government.

Administrative Liability and Improbity Actions

Beyond the criminal sphere, public officials involved in conduct that harms public assets are answerable under the Administrative Improbity Law. As amended in 2021, the statute now requires proof of intent for an act of improbity to be established, ruling out liability for mere negligence in almost all cases.

The sanctions provided in the improbity law include suspension of political rights, civil fines, a ban on contracting with the government, and full reimbursement of the harm. Loss of public office is another significant consequence, depending on the seriousness of the act and the category it falls into.

The higher courts have established that administrative improbity and criminal prosecution are independent spheres. A criminal acquittal does not necessarily rule out civil or administrative liability, except when the criminal decision expressly finds that the act did not occur or that the defendant was not the perpetrator.

Evidence and Investigation in Crimes by Public Officials

Investigating crimes against public administration involves tools such as plea-bargain cooperation agreements, non-prosecution agreements, wiretapping, and lifting of bank and tax secrecy. These mechanisms have been strengthened in recent decades and have been the subject of significant consolidation in the case law of the higher courts.

Documentary evidence plays a central role in these cases, especially accounting records, contracts, invoices, and financial transactions. Analyzing inconsistencies in a person’s assets is a tool frequently used by the Public Prosecution Service and by comptroller offices to show illicit enrichment or the diversion of public funds.

The legal defense should be involved from the investigative stage, ensuring that the fundamental rights of the person under investigation are protected. Access to the investigation file, participation in the early production of evidence, and the right to contest evidence at a later stage are safeguards that, when violated, can lead to the nullity of evidence gathered irregularly.

Compliance and Corruption Prevention in the Private Sector

Companies that do business with the government are directly affected by the anti-corruption system. The absence of internal integrity programs can aggravate sanctions in administrative liability proceedings, while the effective existence of such a program may be considered a mitigating circumstance by the competent authorities.

An anti-corruption compliance program should include clear internal policies, accessible reporting channels, periodic training, and due diligence on business partners. An organizational culture grounded in ethics reduces the risk of involvement in irregularities that could damage the company’s reputation and the continuity of its operations.

Managers and company executives can also be personally reached by legal sanctions when it is shown that they knew of the unlawful practices or that the company was used as a tool to commit acts harmful to public administration. Individual liability of decision-makers is an established trend in Brazilian case law.

Legal Defense and Procedural Strategies

Defending a case involving crimes against public administration requires in-depth knowledge of both criminal law and administrative law. Precisely defining who counts as a public official for criminal law purposes, checking the objective and subjective elements of the charged offense, and analyzing the validity of the evidence are fundamental starting points for any defense strategy.

The statute of limitations is a question often debated in this area. Limitation periods vary according to the maximum penalty for the offense and may be interrupted by specific procedural acts. Errors in calculating the period or in recognizing the events that interrupt it can result in the offense no longer being punishable, which benefits the defendant.

A plea-bargain cooperation agreement, when feasible, is an alternative that can benefit a person under investigation or accused by reducing the sentence, replacing it with alternative penalties, or even resulting in a judicial pardon. Negotiating this kind of agreement requires specialized legal guidance, because it involves a confession and the provision of information that may have consequences in other spheres and for third parties.

Frequently Asked Questions

What is the difference between embezzlement and passive bribery?

In embezzlement, the official appropriates or diverts property that was already in his or her custody because of the position. In passive bribery, the official receives or accepts an undue advantage from private individuals to perform or refrain from performing an act related to the job. The legal interests protected are different.

Can an intern be held liable for embezzlement?

It depends on the function performed. The definition of public official in the Penal Code (Article 327) is broad and covers anyone who holds a public position, job, or function, even temporarily. Interns who handle public funds may fall within this definition and be held liable for the crime.

Does returning the money extinguish the penalty?

In negligent embezzlement, repairing the harm before the final judgment makes the offense no longer punishable. In the other crimes against public administration, reimbursement is a mitigating factor and may influence agreements and the calculation of the sentence, but it does not by itself eliminate criminal liability.

As informações deste artigo são de caráter informativo e não substituem a consulta a um advogado especializado. Cada caso possui particularidades que exigem análise individualizada.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.