The modus operandi constitutes the systematic technique or method employed in the execution of a conduct, serving as a central element in the dogmatics of Criminal Law and Criminal Procedure for the characterization of habitual criminal behavior, concrete gravity, and the necessity of precautionary segregation, transcending the mere analysis of the criminal offense to understand the organizational structure of criminality.
Concept and Foundation
The modus operandi, a Latin expression denoting the "mode of operating," is not to be confused with the subjective element of the offense, but rather with the external and repetitive manifestation of human behavior. In the legal sphere, doctrine understands it as the set of procedures, artifices, and strategies adopted by the agent to achieve an illicit result. Its legal nature is that of a factual-evidentiary element, serving as a hermeneutic vector for assessing the agent's dangerousness and the complexity of the infraction.
Historically, the concept was consolidated in classical criminology and forensic psychology as a tool for linking crimes to the same perpetrator, evolving into Brazilian Positive Law as a criterion for sentencing and a basis for ordering preventive detention, pursuant to Art. 312 of the Code of Criminal Procedure. Contemporary doctrine, led by jurists such as Aury Lopes Jr. and Guilherme de Souza Nucci, points out that the modus operandi is a mirror of the agent's personality and the organization of criminal groups, being essential for the individualization of the criminal sanction.
Practical Application and Jurisprudence
In the Brazilian legal system, the application of the modus operandi occurs primarily in the scrutiny of public order guarantees. The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) have a consolidated understanding that the concrete gravity of the offense, revealed by the mode of execution — characterized by audacity, professionalism, or cruelty — constitutes valid grounds for maintaining precautionary custody.
Current jurisprudence, especially in Habeas Corpus proceedings, reinforces that criminal reiteration demonstrated by an identical modus operandi is a legitimate ground for segregation, preventing impunity and ensuring the effectiveness of criminal prosecution. This is not a presumption of guilt, but an analysis of the agent's social dangerousness extracted from the very dynamics of the criminal act. In cases of criminal organizations, the identification of the modus operandi allows for the classification under Art. 2 of Law No. 12.850/2013, by demonstrating the division of tasks and the hierarchical structure of the group.
Related Principles and Doctrinal Divergences
The institute is intrinsically linked to the principles of proportionality, individualization of the penalty (Art. 5, XLVI, of the 1988 Constitution), and the prohibition of excess. Doctrinal divergences emerge regarding the use of modus operandi to justify preventive detentions: part of the doctrine criticizes the risk of the magistrate using the mode of execution as "bis in idem" in sentencing, if the same fact is used both to increase the base penalty (judicial circumstances of Art. 59 of the Penal Code) and to justify preventive detention.
The protectionist (garantista) school, however, warns that the modus operandi cannot be interpreted in an abstract or generic manner, under penalty of violating the principle of the presumption of innocence. It is required that the court demonstrate, objectively, how the method adopted by the agent puts public order at risk, avoiding justifications based solely on the abstract gravity of the crime.
Contemporary Relevance
Currently, the modus operandi has taken on technological contours. With the advancement of cybercrime and complex financial fraud, the forensic analysis of the method has become the primary means of evidence in the prosecution of transnational crimes. The ability to identify patterns in financial flows and asset-blocking chains allows the Brazilian State to apply precautionary measures with greater effectiveness, aligning with the requirements of international legal cooperation and the fight against money laundering (Law No. 9.613/1998).
Legal and Jurisprudential References
- 1988 Federal Constitution: Art. 5, subsections XLVI (Individualization of the penalty) and LVII (Presumption of innocence).
- Code of Criminal Procedure (Decree-Law No. 3.689/1941): Art. 312 (Grounds for preventive detention).
- Penal Code (Decree-Law No. 2.848/1940): Art. 59 (Judicial circumstances).
- Law No. 12.850/2013: Definition of criminal organization and analysis of operational structure.
- STJ Jurisprudence: Precedents contained in Newsletter No. 798 (2024), which reiterate the need for concrete justification based on the form of execution of the offense for the maintenance of preventive detentions.
- STF Jurisprudence: HC 181.768/MG (Rel. Min. Gilmar Mendes), discussing the limits of justifying precautionary detention in light of the modus operandi.
