Roberto Delmanto Jr December 16 2013 Introducing plea bargaining: a uniquely Brazilian approach Delmanto Advocacia Criminal | White Collar Crime - Brazil Roberto Delmanto Jr White Collar Crime IntroductionNew lawRecent casesCommentIntroductionIn the 25 years since approval of the 1988 Constitution, the Brazilian criminal justice system has undergone significant change. The Constitution expressly recognises the fundamental rights of everyone who faces criminal investigation. Of these, some of the most important are:the presumption of innocence;the right to privacy;the right to remain silent;the right to full knowledge of the evidence on which an accusation is based;the chance to set out a case before the court, with the defence granted the same opportunities to provide evidence as the prosecution;the right to appeal any conviction and to have the case re-examined by another court;a prohibition on the use of any evidence obtained illegally;the right to know the name of the authority that enforced the arrest and any motives that such authority may have;the right to assistance from a lawyer at any time, from the moment of arrest onwards;the right to be judged by an impartial magistrate; andthe right to be judged within a reasonable timeframe or to be set free.However, over the years, the penal procedure laws have become much harsher, with police officers, public prosecutors and judges granted an arsenal of legal measures that restrict the above-mentioned rights. New laws have been approved by Parliament, mostly influenced by international treaties signed by the government, which allow (among other things):telephone, internet and covert surveillance;the tracking of money, with judges permitted to lift financial and tax secrecy controls;police infiltration (with judicial control) into criminal groups; andtemporary imprisonment of a suspect for up to 60 days (depending on the gravity of the crime being investigated) for the purposes of questioning, even in cases where he or she has a settled home address and is unlikely to abscond.New lawIn this wave of new laws, the one that brings the greatest changes to the way in which public prosecutors can act is Law 12.850/2013, which introduced plea bargaining into the Brazilian legal system for organised crime. This will significantly affect white collar crime investigations.In Brazil, plea bargaining does not merely involve a confession in exchange for a reduced penalty, as is common in the United States. Instead, an accusation of other criminal partners is also required before impunity will be granted. Therefore, the public prosecutor is now legally authorised not to bring charges against someone who has confessed to committing a crime, but instead to grant him or her absolute impunity. However, under Article 4(4) of the law, he or she cannot be the head of a criminal organisation and must also:identify his or her partners;reveal the structure and division of tasks within the organisation;lead to the prevention of crimes that would otherwise have been perpetrated by the organisation;recover all or part of the profit obtained from the organisation; andensure that the physical integrity of victims is preserved.This innovation of the criminal procedure system is highly significant – none of the seven laws that previously disciplined the cooperation of a confessed criminal went as far.(1) Instead, judges were limited to:presenting a reduction in the applicable penalty of between one-third and two-thirds of the total amount; orgranting a pardon, which:presumed that the criminal prosecution ran to completion; anddepended on the judge's evaluation of whether the defendant's cooperation was useful to the cause.Therefore, before the new law was introduced, when making a confession or accusation the collaborator would not know whether, at the end of the criminal procedure, the judge would actually grant a reduction in penalty or a pardon, even if the public prosecutor had previously agreed to do so.Recent casesAs it is now possible for no criminal charges to be brought, the new law is already taking precedence over earlier laws(2) in relation to cases involving organised crime, following the Palermo Convention standard (reproduced by Article 1 of the law). Furthermore, as large corruption cases are frequently perpetrated by four or more people – with each one assuming different roles and willing to risk up to four years' imprisonment in order to gain a personal advantage – the new Brazilian plea bargaining regime is already yielding results.For example, a scandal emerged in the city of Sao Paulo in November 2013 that involved several public servants accused of receiving millions of reais in bribes in exchange for a reduction in the city taxes owed by some of the largest construction companies in the country. Damages were estimated at more than R500 million (about $250 million) over the past four years. One corrupt public inspector later decided to collaborate and released full details of the criminal organisation. He was the only person who was not jailed during the subsequent investigations. The companies were unable to deny that the payments had been made (as they were evidenced in bank transactions). However, they have since claimed that they were not bribers, but victims of extortion by the inspectors.CommentLess than two months after it came into force, Law 12.850 is already having an effect. It is also already attracting criticism.First, the law is arguably unethical. An accusation made by an informer against his or her former criminal partners is generally made not because he or she regrets acting in such way and is seeking redemption. Instead, once he or she has been trapped by the authorities, making an accusation against his or her former partners offers a selfish way to escape punishment while sending others to jail for the same crimes. Although an informer's actions may ultimately help the authorities to combat organised crime, such good intentions do not always justify the means.Second, the law gives the impression that the authorities do not have the means to investigate criminal organisations themselves, instead being obliged to bargain with criminals and accept their assistance in exchange for impunity.Third, as the collaborator seeks personal gain, he or she may not necessarily tell the truth and may accuse an innocent party or falsely accuse an enemy for the sake of revenge.Finally, the defence lawyer of the person accused by the collaborator will often have no opportunity to question him or her directly in order to determine the truth of the accusations. This circumstance must be avoided, since it denies the accused his or her right to a fair trial.While much more could be said about the new law, one thing is clear: this uniquely Brazilian form of plea bargaining is expected be part of the criminal justice system for some time to come.For further information on this topic please contact Roberto Delmanto, Jr at Delmanto Advocacia Criminal by telephone (+55 11 3887 6251), fax (+55 11 3051 6382) or email ([email protected]). The Delmanto Advocacia Criminal website can be accessed at www.delmanto.com.Endnotes(1) These include the Heinous Crimes Law (8.072/1990), the Law on Economic and Tax Crimes, and Against Consumer Relations (8.137/1990), the Law on Crimes Against the Financial System (7.492/1986, as amended by Law 9.095/1995), Law 9.269/1996, which altered Article 159 of the Penal Code (on extortion with kidnapping), the Money-Laundering Law (9.613/1998), the Cooperation and Witness Protection Law (9.807/1999) and the Law on Combating Drug Misuse (11.343/2006).(2) These include the Law on Economic and Tax Crimes, and Against Consumer Relations (8.137/1990), the Law on Crimes Against the Financial System (7.492/1986, as amended by Law 9.095/1995) and the Money-Laundering Law (9.613/1998).