Criminal liability

Primary liability

What criminal charges can be asserted against businesses for the commission of human rights abuses or involvement or complicity in abuses? What elements are required to establish guilt?

Criminal liability in Brazil is personal and subjective (ie, must be proven beyond reasonable doubt), and, as a general rule, applicable only for individuals, with the sole exception being environmental crimes, which also bind legal entities.

Authorities may press criminal charges against any individual acting either wilfully or in negligence (the latter, only as expressly provided by law) to commit or conspiring to commit – either directly or indirectly – a criminal offence.

Accordingly, there are no criminal charges that can be asserted against business enterprises for the commission of human rights abuses or involvement or complicity in abuses by other actors.

What defences are available to and commonly asserted by parties accused of criminal human rights offences committed in the course of business?

Considering that criminal liability in Brazil is personal and subjective, with the sole exception of environmental crimes, entities are not liable under Brazilian criminal law. Furthermore, accusations against individuals for criminal human rights offences are uncommon in Brazil.

There are no cases of criminal human rights offences committed in the course of business filed by the Brazilian authorities.

Director and officer liability

In what circumstances and to what extent can directors and officers be held criminally liable for involvement or complicity in human rights abuses? What elements are required to establish liability?

Managers, officers, representatives, agents or employees of an involved legal entity who have participated in criminal enterprise (with intent or negligence) may also be subject to criminal prosecution to the extent of their culpability in the criminal act (if so required by criminal laws).

Therefore, whenever an individual does not commit the crime him or herself but somehow contributes to it, criminal liability can arise from assistance or intellectual or direct participation in a crime. Managers, directors and board members may also be liable for the acts of those in a lower hierarchical position if, when a wrongdoing is established, they do not act to avoid the result.

Brazilian law does not admit, however, that any person can be charged with the exclusive grounds being his or her position within a company, as it must be demonstrated that he or she contributed somehow to the offence.

Piercing the corporate veil

When can the courts disregard the separate legal personalities of corporate entities within a group in relation to human rights issues so as to hold a parent company liable for the acts or omissions of a subsidiary?

Criminal liability in Brazil is personal and subjective, and, as a general rule, applicable only for individuals, with the sole exception being environmental crimes, which also bind legal entities.

Authorities may press criminal charges against any individual acting either wilfully or in negligence (the latter, only as expressly provided by law) to commit or conspiring to commit – either directly or indirectly – a criminal offence.

Accordingly, there are no criminal charges that can be asserted against business enterprises for the commission of human rights abuses or involvement or complicity in abuses by other actors.

Secondary liability

In what circumstances and to what extent can businesses be held liable for human rights abuses committed by third parties?

Criminal liability in Brazil is personal and subjective (ie, must be proven beyond reasonable doubt), and, as a general rule, applicable only for individuals, with the sole exception being environmental crimes, which also bind legal entities.

Authorities may press criminal charges against any individual acting either wilfully or in negligence (the latter, only as expressly provided by law) to commit or conspiring to commit – either directly or indirectly – a criminal offence.

Accordingly, there are no criminal charges that can be asserted against business enterprises for the commission of human rights abuses or involvement or complicity in abuses by other actors.

Prosecution

Who may commence a criminal prosecution against a business? To what extent do the state criminal authorities exercise discretion to pursue prosecutions?

Criminal liability in Brazil is personal and subjective and, as a general rule, applicable only for individuals, with the sole exception being environmental crimes, which also bind legal entities. With regard to environmental crimes, either the federal public prosecutor’s office or the state public prosecutor’s office, and not private citizens, may prosecute a company. Crimes committed against the government’s property, rights or interests are under federal jurisdiction, and all other crimes are under state jurisdiction.

Nevertheless, it is possible for anyone to report a crime, according to article 5, section 3 of the Criminal Procedure Code, and judicial authorities have the duty of reporting to the public prosecutor’s office.

Under Brazilian law, the public prosecutor’s office must press charges if there is evidence of a crime being committed, as well as enough evidence that an individual is responsible for the offence, since it is submitted to the principle of mandatory prosecution.

What is the procedure for commencing a prosecution? Do any special rules or considerations apply to the prosecution of human rights cases?

As a general rule, investigations in Brazil are conducted by federal or state police authorities, depending on the nature of the crime. According to article 5 of the Criminal Procedure Code, a police investigation may be initiated by the police authority itself, by order of the judicial authority or the public prosecutor’s office, or by the victim or at his or her representative’s request.

In recent years, the Brazilian Supreme Court has ruled that the public prosecutor’s office also has the prerogative to conduct investigations independently from the police authority, although remaining under judicial supervision (STF-RE 593727, reporting Minister Gilmar Mendes, date of Judgment: 14 May 2015).

Once the investigation is concluded, if the public prosecutor’s office considers there is evidence of a crime being committed and enough evidence that an individual is responsible for the offence, criminal charges will be pressed against him or her, directed to a court that has jurisdiction over the matter.

The public prosecutor’s office, as a general rule, has the legal duty to ‘describe the supposed criminal conduct with all its circumstances’ (article 41 of the Criminal Procedure Code), which includes the extent of the individual‘s personal contribution to the offence. Therefore, if the charges do not present information on how the defendant may have contributed to the alleged crime, under Brazilian law, the accusation shall be promptly dismissed by the judge – either immediately or upon request of the defence.

The case dismissal may also occur if the judge considers, for instance, that there is insufficient evidence to support it (article 395 of the Criminal Procedure Code) or if the conduct described is not considered a criminal offence.

If the charges are accepted by a judge, the defendant shall then be summoned to respond to the criminal complaint and submit allegations or motions that may be considered relevant to his or her defence.

In light of the defence motions, the judge may reconsider his or her first decision dismissing the indictment or confirm the admission of the complaint. If the indictment is confirmed, a hearing will be scheduled for the testimony of the witnesses and the interrogation of the defendant. Subsequently, all the parties submit their final allegations and the judge shall present a sentence, which is subject to appeal.

The Federal Constitution (article 109, V-A) states that in the event of a serious violation of human rights, the attorney general may request the transfer from its original jurisdiction to a federal court. The Superior Court of Justice has jurisdiction to rule in the case of dispute between the state court and the federal court on this matter.

Although the term ‘violation of human rights’ is expressly mentioned by the Federal Constitution, the concept of serious violation of human rights does not have a strict legal definition; thus, it is subject to a certain degree of subjectivity. According to the Superior Court of Justice, a criminal offence can only be considered as a serious violation of human rights if it is foreseen in an international human rights treaty to which Brazil is a party.

Law stated date

Correct as of

Give the date on which the information above is accurate.

6 February 2021.