Porte Ilegal de Arma: Aspectos Legais e Penais
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pedrofranciscoafonso486Porte Ilegal de Arma: Aspectos Legais e Penais
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pedrofranciscoafonso486Common questions
Com tecnologia de IAThe failure to load a firearm does not alter the classification of the conduct as criminal under Brazilian law, as the offense of carrying an illegal firearm, even when unloaded, remains a 'crime de mera conduta,' subject to penalties under the statute .
The categorization of illegal firearm possession under Brazilian law as a 'crime de mera conduta' stems from its focus on the act of carrying itself, irrespective of subsequent outcomes or intent, reflecting its design to protect public safety by presuming danger simply from possession .
Under Brazilian law, governed by the Statute of Disarmament, possessing a toy firearm is prohibited unless authorized for specific uses by the Military. While possession is typically an administrative issue leading to seizure, carrying a toy firearm is treated as a 'contravenção penal' under Article 19 of the Law of Criminal Violations .
In cases where an individual simultaneously possesses a firearm restricted for use and one that is permitted, Brazilian law dictates that they will be charged with the more severe offense. Consequently, the conduct pertaining to the permitted-use firearm, under Article 14, becomes subsumed by Article 16 for the restricted-use weapon .
Brazilian law treats the illegal carrying of firearms as a 'crime de mera conduta,' not requiring a particular outcome, and thus measuring completion by the act itself. However, given its 'plurissubsistente' nature, attempts can be recognized when an individual's acts are intercepted before full execution .
An individual may be exempted from the inafiançabilidade clause in Article 14 if the firearm is registered in their name. The STF deemed the inafiançabilidade unconstitutional, except when the firearm registration is missing, in the ADIn 3.112-1 decision .
When multiple firearms are involved but the context is unified—meaning the individual is unlawfully carrying both permitted-use firearms—the offense is considered under Article 14, which affects only the penalty calculation. However, in distinct factual situations, this results in separate crimes in material concurrence .
The Brazilian legal system, as established by the Superior Tribunal de Justiça (STJ) in AgRg no AREsp 397.473, requires proof of the firearm's harmful potential. If a firearm is incapable of firing due to absolute ineffectiveness, it constitutes an atypical conduct and falls under 'crime impossible' due to ineffective means .
The potential lethality of a firearm plays a crucial role in its legal classification. As determined in the judgement AgRg no AREsp 397.473 by the STJ, a firearm's potential for harm must be demonstrable; if proven defective to the extent it cannot fire, the conduct is atypical. However, if the firearm, despite defects, retains the ability to fire ('tiro picando'), the offense under Article 14 is maintained .
According to the Supreme Federal Court (STF) in HC 95.073, carrying an unloaded firearm constitutes an offense under Brazilian law as a 'crime of mere conduct,' which does not require a naturalistic result to be configured .