Formal Concurrence of Offenses and the Sentencing Act

Observations on Law No. 15,402/2026

Abstract

This article examines formal concurrence of offenses and the amendments introduced by the so-called “Sentencing Act” (Law No. 15,402/2026). The distinct sentencing regime applicable to formal concurrence is justified by the presence of a partial bis in idem, resulting from the identity of both the offender and the underlying historical event. From this perspective, the unity of conduct required for formal concurrence should be understood as a unity of factual context. German legal scholarship and case law have developed several doctrinal constructs aimed at identifying the circumstances in which such contextual unity may be established, namely: i) an act in the natural sense; ii) a relationship of wrongfulness grounded in the disvalue of the act; iii) the partial unity of acts of execution; and iv) the natural unity of action. Against this background, the new Article 359-M-A of the Brazilian Criminal Code, by expressly referring to unity of context as a requirement for formal concurrence, does not substantively depart from the rule already contained in Article 70 of the Criminal Code. It should therefore be interpreted as a general explanatory provision on formal concurrence, applicable to all criminal offenses rather than solely to those set forth in Title XII of the Criminal Code. As regards improper formal concurrence, criminal purpose (desígnio) should not be equated with intent (dolus). Rather, it refers to the subjective element underlying the single course of conduct, understood as a single motivational situation or, alternatively, a single objective pursued by the offender through the commission of multiple offenses. On these premises, offenses against the Democratic Rule of Law committed within the same factual context will ordinarily be characterized by a single criminal purpose.