Criminal liability Debt bondage Forced labour Maximum working hours, overtime, weekly rest and leave Poor working conditions Retention of travel and identification documents Slavery
Article 149 provides the definition of the Brazilian concept of ‘labour analogous to slavery’ by criminalizing the various practices which cause workers to work: in degrading conditions; excessive working hours; in conditions of forced labour or in situations whereby their freedom is restricted through debt, isolation, the confiscation of their personal documents, or by maintaining manifest surveillance. Under this definition of slave labour, it is sufficient for one of these elements to be present for the crime of using slave labour to be fulfilled.
Under this definition of slave labour, it is sufficient for one of these elements to be present for the crime of using slave labour to be fulfilled. The Brazilian concept of slavery-like labour goes further than the international definition of ‘forced labour’ as set out in the ILO Conventions, not requiring an element of coercion and encompassing debt bondage, as well as other exploitative or degrading labour conditions. It is not necessary for a worker to have been transported from one place to another for the crime of reducing someone to a condition analogous to slavery to have been committed.The original version of Article 149 of the Brazilian Penal Code, before the changes introduced by the Law 10.803/2003, simply characterized the offense as “reducing someone to conditions analogous to slavery”, without providing any specific elements to identify the various ways in which the victim could be reduced to a state analogous to slavery. After receiving widespread criticism, Section 149 was modified in 2003. The 2003 amendment to Section 149 of the Brazilian Penal Code provided clarification by identifying the different ways in which workers could be subjected to severe labour exploitation and be reduced to slavery-like conditions. Before this amendment, the general language of the provision had generated confusion and hindered the development of effective jurisprudence.
In her 2010 Report on her Official Mission to Brazil, Former Special Rapporteur Gulnara Sahinian states that the criminal penalties for slave labour instituted by the Criminal Code are too mild and do little to deter perpetrators. The crime of slavery under Article 149 is punishable by 2 to 8 years in prison, and the statute of limitations on a crime in Brazil expires after 12 years. Sahinian explains that “because of the slow judicial system, those responsible for slave labour can merely go on challenging rulings until the statute expires”. Moreover, if a perpetrator is convicted and sentenced to a prison term of less than four years, under Brazilian legislation the sentence can be commuted for social services. Sahinian states that while “such a concession is only to be used for “unintended crimes”, and not for malicious crimes such as slavery, this distinction is not always made by judges”. Furthermore, first-time offenders sentenced to less than four years and who meet other criteria set out by the Criminal Code may serve their sentences under house arrest.
Article 149. Reducing someone to a condition analogous to that of a slave, namely: subjecting a person to forced labour or to arduous working days, or subjecting such a person to degrading working conditions or restricting, in any manner whatsoever, his mobility by reason of a debt contracted in respect of the employer or a representative of that employer.
Penalty – two (2) to eight (8) years of imprisonment, together with a fine, on top of any sentence handed down for violence.
§1º Any persons committing the following offences shall receive the same penalties:
I – retaining workers at the workplace by preventing them from using any means of transportation
II – retaining workers at the workplace by confiscating their personal papers or personal property, or by maintaining manifest surveillance
§2º The prison sentence is increased by half if the crime has been committed:
I – against children or adolescents
II – on the basis of race, colour, ethnicity, religion or origin.
Law / 7 December 1940 / Brazil / Criminal Code
The Brazilian Penal Code specifically deals with criminal liability for human trafficking, forced labour and slavery. However, these provisions are not applicable to corporate entities, as Brazilian legislation only provides for the criminal responsibility of corporations for environmental crimes and for corruption. Under the Criminal Code, civil liability may arise from any crime. Accordingly, while only the company’s executives can be charged with the crimes of forced labour, slavery and human trafficking, corporations can be held civilly liable for such crimes.