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Source: (by Geovane Moraes, facebook)
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During the celebration of a Catholic homily, in memory and respect of the seventh day since the passing of John, Luke — a long-time enemy of the deceased since time immemorial — asked the secular priest for the floor, claiming he would like to offer tender considerations to the family of the deceased, who were present at the location of the celebration.
Upon being granted the floor, he took the pulpit of the sanctuary and shouted loud and clear:
- You are praising a sycophant, a vile individual, a scoundrel of a spirit, who was foolish regarding honesty in life, a neophyte in good manners, and eager for villainy. Go back to your homes, for John did not even deserve a burial, let alone a celebration in his memory.
By uttering these words, he created an atmosphere of disturbance, dismay, and outrage among all present, even shaking the prior who had granted him the floor.
Before being forcibly removed from the pulpit by one of those present, he still shouted:
- And for those who do not know, it is worth saying that John was a drug dealer, a thief, and a killer.
Captured, Luke was coercively taken to the civil police station closest to the place of capture.
Starting from the premise that you are the police chief called to receive the detainee, that the apprehension was made by private citizens, with no prior need to deliver a POR – Police Operations Report, and that the facts transpired exactly as described above, the questions are:
1 – Can Luke's conduct be characterized as a crime? If so, what would be the appropriate classification?
If the first answer is affirmative, also answer:
2 – Is it possible to draw up a Flagrant Arrest Report (APFD)? If so, would it be possible for the Police Chief to set bail?
ANSWER:
1 – Luke's conduct is classified under the terms of Article 208 of the Brazilian Penal Code (CPB).
Outrage to worship and impediment or disturbance of an act related to it
Art. 208 - Publicly mocking someone due to religious belief or function; PREVENTING OR DISTURBING A CEREMONY OR PRACTICE OF RELIGIOUS WORSHIP; publicly vilifying an act or object of religious cult:
Penalty - detention, from one month to one year, or a fine.
Single paragraph - If violence is used, the penalty is increased by one-third, without prejudice to the penalty corresponding to the violence.
Taking the opportunity, let's look at a tip.
It WOULD NOT BE APPROPRIATE to classify the conduct as slander against the dead. To have the crime of slander, the cumulative presence of the following requirements is necessary:
- Imputing a determined and specific fact;
- The imputation must be false regarding its existence or authorship;
- The fact must be defined by law as a crime;
- The imputed fact must be plausible;
- There must obligatorily be criminal intent (dolus);
Notice that in this specific case, Luke stated that "John was a drug dealer, a thief, and a killer." There was no imputation of facts, but rather of characteristics. Being a drug dealer is not a fact, but an adjective. A fact would be if Luke had said, for example: "John sold drugs, two days before he died, at his house." Then we would have the imputation of a fact.
It would not be appropriate to classify the crime of defamation, because DEFAMATION AND INSULT AGAINST THE DEAD ARE NOT ALLOWED.
2 – Drawing up an APFD is not appropriate, as it is an offense of low potential offensiveness. Consequently, there is no mention of bail either.
The procedure applicable to the chief of police would be to order the drafting of a TCO – Circumstantiated Report of Occurrence, under the terms of art. 69 of Law 9099/95
.Source: (by Geovane Moraes, facebook)
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