Dolous homicide is a severe offense outlined in the Criminal Code and involves a detailed examination of the intentional element, known as “dolo.”
Understanding the intricacies is crucial for attorneys practicing Criminal Law.
This article discusses the features of dolous homicide, distinctions from other offenses against life, and the legal ramifications.
What defines a terrible homicide?
Dolous murder happens when the perpetrator intends to cause the death of another person or knowingly risks it.
The author’s intention can be explicit, with a clear desire for the outcome, or implicit, with an acceptance of the potential deadly result.
The intentional killing is predicted in CP article 121, as we will discuss further below.
Types of pain
The dolo is the subjective aspect that sets apart the intentional murder from other crimes against life.
Various types of pain can be identified that impact criminal analysis, here are a few examples:
- Direct intention occurs when there is a deliberate desire to cause the death outcome, with the agent consciously planning and carrying out their actions with this goal in mind.
- Indirect Intent: It involves the foreseeable consequences of an action. For instance, if a car is blown up to target a person, other passengers may also get killed.
The indirect intention can be divided into different types: alternative and potential.
- Dolo Eventual occurs when the perpetrator is aware of the potential consequences of their actions, even if they do not explicitly intend for those consequences to happen. An example is setting fire to a building despite knowing there are people inside.
- Alternative Intent: This occurs when the individual is unconcerned about the specific outcome among multiple possibilities and is willing to accept any of them. For instance, firing a weapon at a group of individuals without consideration for who may be struck.
Conscious guilt, while not a form of doom, should be emphasized for causing confusion.
The agent in this theory foresees the outcome but genuinely thinks they can prevent it by acting recklessly, distinguishing it from a scenario where the risk is accepted.
What are the primary categories of homicides under Article 121 of the Criminal Code?
The primary categories of murders outlined in Article 121 of the Penal Code comprise:
- Simple Dolose Homicide involves the intent to kill without any aggravating or mitigating factors.
- Dolous Homicide with Aggravating Factors: This includes elements like ambush, cunning intent, or brutal means that intensify the severity.
- Murder happens due to carelessness, recklessness, or irresponsibility, without the intention to cause death.
- Homicide by preterdoloso occurs when a deliberate act leads to a more severe outcome than intended, like death.
What is the punishment for homicide?
Article 121 of the Criminal Code establishes a penalty of 6 to 20 years for intentional homicide.
If the conditions specified in sections I to V of Article 121 of the Criminal Code are met, the punishment is elevated to a range of 12 to 30 years.
The starting system varies based on the timing of the judgment in both scenarios.
How can the punishment for homicide be reduced?
In some situations, the legal system permits a decrease in the punishment considering factors such as emotional, social, or cooperative behavior of the defendant with the justice system.
These factors can play a crucial role in shaping the crime framework and determining the punishment.
Generic Mitigating Circumstances (Article 65 of the Criminal Code)
Article 65 of the Criminal Procedure Code outlines a list of general mitigating factors that could lessen the punishment.
These are factors that consistently reduce the punishment according to Article 65 of the Penal Code.
I am either under 21 years old on the date of the event or over 70 years old on the date of the decision.
Ignorance of the law.
The agent must be present.
a) carried out the offense due to significant social or moral worth;
b) promptly and effectively tried to prevent or lessen the consequences of the crime, or made efforts to repair the damage prior to the trial.
The crime was committed under pressure that could not be resisted, following the orders of a superior authority, or due to strong emotions caused by the victim’s unjust actions.
d) voluntarily admitted to committing the crime in front of the authorities;
The crime was carried out while influenced by a chaotic crowd, even if it did not incite it.
Privileged Homicide Theories (Art. 121, §1 of CP)
Article 121 of the Criminal Code allows for a sentence reduction if the judge deems the crime to be a privileged homicide, ranging from 1/6 to 1/3.
The privileged murder occurs when the crime is committed in specific circumstances.
- Interest from the entire community, such as the case of a neighborhood coming together to seek justice for a child rapist’s death, demonstrates significant social value.
- An important moral principle is that there is a personal concern that includes compassion or mercy, such as euthanasia.
- Occurs when the victim is unjustly provoked and reacts immediately while experiencing intense emotions.
Distinguishing factors between the reasons for reduced homicide rates and general decline.
There is often confusion between the implementation of Article 121, § 1 of the Criminal Code and Article 65, section III of the Criminal Code.
Then observe.
- Reason for reduced murder rates (Article 121, Section 1 of the Penal Code):
- The author was overwhelmed by intense feelings and provoked unfairly by the victim.
- The response is instant.
- Murder is required.
- Generic Mitigating Circumstance (article 65, section III of the Penal Code):
- The writer was highly emotional and unfairly provoked by the victim.
- There is no specific time limit.
- It is relevant to all types of crimes.
How can the punishment for murder be made more severe?
The intentional killing may receive a harsher punishment in certain circumstances.
Dolose Homicide with Aggravating Circumstances (Article 121, Sections 2 and 2-B of the Criminal Code)
The qualified intentional homicide, as specified in Article 121 of the Criminal Code, increases the minimum penalty for imprisonment from 12 to 30 years under certain conditions.
Art. 121, § 2 of the Criminal Code deals with circumstances surrounding a murder.
I – in exchange for payment, promise of reward, or for some other benefit.
II – for no good reason;
III – by employing poison, fire, explosives, suffocation, torture, or other deceitful or brutal methods, or by posing a general threat.
Treason, ambush, or deceitful tactics that prevent the victim from defending themselves.
V – to guarantee the implementation, concealment, lack of punishment, or benefit of another offense:
Seclusion ranges from twelve to thirty years as a punishment.
Repeated again.
Against authority figures or individuals described in Articles 142 and 144 of the Federal Constitution, members of the prison system and the National Force of Public Security, in the course of their duties or related to it, or against their spouse, partner, or blood relative up to the third degree, due to this status:
VIII – when firearm use is limited or forbidden
IX – against those under the age of 14 years:
Seclusion, ranging from twelve to thirty years, is the punishment.
The punishment for killing someone under the age of fourteen is elevated.
One third to half if the victim has a disability or illness that makes them more vulnerable.
Two-thirds if the individual has authority over the victim due to their relationship as an ascendant, step-parent, step-sibling, uncle, spouse, partner, tutor, curator, mentor, or employer.
Two-thirds if the crime occurs in a public or private school.
Subjective Component in the Criminal Justice System
Understanding the concept of intent and its different forms is crucial for examining the intentional murder and its legal categorization.
Specialized lawyers’ expertise is crucial in guaranteeing a just enforcement of penalties while acknowledging the unique aspects of each case.
Sources:
The text is available at the following link: https://www.planalto.gov.br/ccivil_03/decreto-lei/del2848 compiled.htm
Frequently Asked Questions
What is that?
How can one distinguish between the potential for conscious guilt?
What does the term “triple-qualified murder” refer to?
What do 1st and 2nd grade refer to?
The first-degree dolo happens when the perpetrator intentionally seeks the precise outcome of their actions, such as shooting someone with the intent to kill.
The second-degree dolo, also known as necessary dolo or dolo of necessary consequences, happens when the person aims for one outcome but knows a second result will also happen. For instance, if someone blows up a car to kill a person inside, they also know it will result in killing others nearby, which was expected.
What alleviates the pain?
The intention can be disregarded if the agent did not intend to commit the crime or knowingly took the risk of the outcome. Some scenarios that nullify intention are:
- The agent’s lack of knowledge about a crucial element of the crime leads to an impossible type error, making it impossible to establish intent.
- Events happening due to unpredictable external factors are considered as fortuitous or force majeure situations.
- If the agent acted recklessly, negligently, or carelessly without intent or acceptance of the risk, guilt can be established and the crime may be deemed intentional.
How can dolo be proven?
The validation of the benefit relies on evaluating both objective and subjective factors in the situation, which can be proven by:
- Crime details: the method of carrying out the crime, involving the use of a gun and repeated actions.
- The accused’s statements express intent or acknowledgment of the possibility of the outcome.
- Reports that show the agent’s purpose: Testimonials.
- Periapsis tests: which might suggest the ability to anticipate the outcome and the deliberate behavior of the individual.
- History of past threats, previous altercations, or any other evidence of preplanning or willingness to take risks.
What is the significance?
Preterdomous crime happens when the perpetrator intentionally engages in a wrongful act, but the outcome turns out to be more severe than intended.
For instance, if a person intended to harm someone but unintentionally caused their death.