The term attempt (atentado), within the Brazilian legal system, designates any act of commission or omission that results in an illicit alteration of the factual state of a dispute or in a direct offense against fundamental legal interests, such as the dignity of justice, public safety, and the integrity of the Democratic Rule of Law. Originating in Civil Procedural Law as a precautionary measure for the res litigiosa and transposed into Criminal Law as the core of specific incriminating offenses, the institute aims to safeguard the effectiveness of judicial relief and the stability of political and social institutions.
1. Definition, Concept, and Legal Nature
In doctrinal terms, the attempt is understood from a dual perspective: procedural and material. From a procedural standpoint, it is configured as an illegal innovation in the factual state of a dispute, practiced by one of the parties during the course of the proceedings, with the aim of prejudicing the discovery of the truth or the effectiveness of a potential judgment. Its legal nature, under the 2015 Code of Civil Procedure (CPC/15), has evolved from an autonomous precautionary action into an act against the dignity of justice, subjecting the offender to pecuniary and procedural sanctions of a punitive and coercive nature.
Under the criminal and constitutional aspect, the attempt is qualified as the execution of acts aimed at harming high-ranking legal interests. The legal nature, in these cases, is that of a crime of danger or damage, depending on the specific classification, such as crimes against national sovereignty and democratic institutions, provided for in Title XII of the Penal Code.
2. Historical Evolution and Comparative Law
The genesis of the institute dates back to Roman Law, under the maxim "pendente lite nihil innovetur" (while the suit is pending, nothing should be changed). The Luso-Brazilian system inherited this precept through the Philippine Ordinances, consolidating the idea that the preservation of the litigious object is a sine qua non condition for the exercise of jurisdiction.
In Brazil, the 1939 and 1973 Codes of Civil Procedure provided for the "Action of Attempt" as a specific precautionary procedure (Arts. 879 to 881 of the 1973 CPC). With the advent of the 2015 CPC, there was a de-legalization of the attempt as an autonomous action, absorbing it into the general duty of procedural probity and granting the magistrate the power-duty to curb such practices through interlocutory decisions and the application of fines, aligning with the trend of Comparative Law (such as contempt of court in Common Law) to uphold the authority of judicial decisions.
3. Legal Provision and Normative Framework
The contemporary legal foundation of the attempt is unfolded in the following statutes:
- Code of Civil Procedure (Law No. 13.105/2015):
- Art. 77: Establishes the duties of the parties and their attorneys, typifying in item VI the prohibition of "practicing illegal innovation in the factual state of a litigious good or right." Paragraph 2 provides for a fine of up to 20% of the value of the cause for an act against the dignity of justice.
- Art. 772, II: Authorizes the judge to impose coercive measures to prevent an attempt during the execution phase.
- Art. 774: Defines conduct that constitutes an attempt specifically in forced execution.
- Penal Code (Decree-Law No. 2.848/1940 and amendments):
- Title XII (Arts. 359-L to 359-R): Introduced by Law No. 14.197/2021, which repealed the National Security Law, typifying the attempt against sovereignty, democratic institutions, and the electoral process.
- Art. 213: Law No. 12.015/2009 unified the former "violent attempt against modesty" into the crime of rape, maintaining the semantic weight of aggression against sexual freedom.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts has given a rigorous interpretation to the concept of attempt, especially regarding procedural loyalty and institutional stability.
Superior Court of Justice (STJ): The consolidated understanding, including in repetitive appeals, is that the characterization of an act against the dignity of justice requires the subjective element (intent or gross negligence) and the effective potential for damage to the proceedings. The Superior Court emphasizes that the fine provided for in Art. 77, § 2, of the CPC has an administrative-procedural nature, not to be confused with damages for bad-faith litigation (Arts. 80 and 81).
Supreme Federal Court (STF): In the scope of Public and Constitutional Law, the STF has used the concept of attempt to support decisions in inquiries investigating anti-democratic acts. The current interpretation links the "attempt" not only to physical violence but to the use of illicit means to abolish the Democratic Rule of Law, as prescribed by Law No. 14.197/2021. Recent decisions reinforce that parliamentary immunity does not cover attempts against the constitutional order and the honor of members of the Court.
5. Related Principles and Doctrinal Divergences
The institute of the attempt dialogues directly with the following principles:
- Principle of Objective Good Faith: Requires an ethical standard of conduct from procedural subjects.
- Principle of Effectiveness of Jurisdiction: Ensures that the final result of the process is not rendered moot due to unilateral factual changes.
- Principle of Legal Certainty: Protects the stability of relationships and institutions.
Doctrinal divergences persist regarding the cumulativeness of sanctions. One school of thought argues that the fine for an act against the dignity of justice (Art. 77) can be combined with the fine for bad-faith litigation (Art. 81), given that they protect distinct legal interests (the dignity of justice vs. the interest of the counterparty). Another, more restrictive school, invokes the principle of non bis in idem to avoid double punishment for the same factual basis.
6. Contemporary Relevance and Impacts on the Legal System
The contemporary relevance of the attempt manifests in the need to preserve the real truth in the face of the phenomenon of disinformation and complex procedural fraud. In Civil Law, combating the attempt is an essential tool for maintaining the utility of the process, preventing judicial delay from being used as a stratagem for altering facts. In Criminal and Political Law, the modern classification of the attempt against democratic institutions fills gaps in the old National Security Law, providing greater technical precision and constitutionality to the defense of the Brazilian State.
In short, the attempt ceases to be a merely accessory figure to become a pillar supporting judicial authority and public order, requiring the legal practitioner to perform a technical analysis that balances the judge's power of caution with the guarantees of due process of law.
Legal and Jurisprudential References
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Decree-Law No. 2.848, of December 7, 1940. Penal Code.
- BRAZIL. Law No. 14.197, of September 1, 2021. Adds Title XII to the Special Part of the Penal Code.
- STJ. RMS 56.640/SP. Rapporteur Min. Herman Benjamin, Second Panel, judged on 05/17/2018. (Regarding acts against dignity and fines).
- STF. Inquiry 4.879/DF. Rapporteur Min. Alexandre de Moraes. (Regarding attempts against the Democratic Rule of Law).
