STJ DECIDES THAT THE STATE COURTS HAVE JURISDICTION TO JUDGE MONEY LAUNDERING CRIMES COMMITTED THROUGH INVESTMENTS IN CRYPTOCURRENCY
The Brazilian Superior Court of Justice (“STJ”) decided in a judgement of a jurisdiction dispute that the State Courts have jurisdiction to judge money laundering crimes committed through the opening of companies to make investments in cryptocurrency in order to disguise the illegal origin of the money obtained through drug dealing.
In the judgement of the case, arose a question on whether the capitalization of investments through crypto asset, which is unregistered in the Brazilian Securities and Exchange Commission (“CVM”) and in the Brazilian Central Bank (“Bacen”), may be considered a crime against the financial system or the economic order. If this were the case, the Federal Courts would have jurisdiction to judge related money laundering crime according to the item VI of the article 109 of the Brazilian Federal Constitution.
If the STJ decided that the money laundering was the only crime committed, than the State Courts would have jurisdiction. The reason for this is because the money laundering caused no offense to assets, services or interest of the Union, another situation in which there could be jurisdiction of Federal Courts.
The STJ, on at least two occasions (CC nº 170.392 / SP; and CC nº 161.123 / SP), had already manifested that the commercialization of cryptocurrencies would not constitute a crime against the financial system or against the order economic, since crypto assets are not understood as currency by the Central Bank nor as a security by the CVM.
In the judgment under analysis, the STJ adopted a similar position, in order to recognize that the facts investigated would be limited to the crime of money laundering. In this sense, it would be up to the state level to judge the case.
On the other hand, the discussion in the STJ about whether the investment in cypto currency constitutes a crime against the national financial system or a crime against the economic order also demonstrates the urgency for the regulation of the crypto market in Brazil, since the permanence of cryptocurrencies in the current regulatory limbo creates legal uncertainty.
STJ DECIDES A DEFENDANT IS NOT OBLIGATED TO PROVIDE THE PASSWORD OF DEVICES SEIZED AND CANNOT BE PUNISHED FOR IT
The Brazilian Superior Court of Justice (“STJ”) decided in a judgement of a habeas corpus that an individual indicted for money laundering is not obligated to provide the password of the devices seized during a search and seizure. In the present case, after a request of the Public Prosecutor’s Office, the Judge determined the subpoena of the defendant to provide, within 05 days, the password of the devices seized aiming the access to the data stored inside his devices.
In the judgment of the habeas corpus, the 6th Panel of the STJ decided that the subpoena of the defendant to present the password is not illegal on its own. However, it also decided that the defendant is not obligated to provide the password and cannot be punished for not doing so. The Court decided that the Justice may subpoena the defendant to obtain evidence, but it cannot obligate the defendant to comply to its order, just as it occurs in interrogations in which the defendant is subpoenaed but he is not obligated to answer the questions from the authorities.
This case decision is important because the STJ restated the relevance of the constitutional right against self-incrimination (nemo tenetur se detegere) and underpinned that the defendant cannot be punished for not cooperating with the Court, when this cooperation may affect his defense.
Similarly, it is necessary to point out the STJ’s decision also endorsed the legal provision that the defendant does not need to prove his innocence and that the burden of proof is on the prosecution that must search for legal sources of evidence to justify the prosecution and conviction. Therefore, the decision is also in accordance with the constitutional principle of presumption of innocence.
TRF-5 DECIDES THAT IT IS POSSIBLE TO EXAMINE A SECOND CRIMINAL REVISION WHEN VERIFIED THAT FINAL DECISION OF THE FIRST CRIMINAL REVISION HAD VIOLATED THE CONSTITUTION OR THE CRIMINAL LAW
The 5th Regional Federal Court of Brazil (“TRF-5”) that has jurisdiction in the Brazilian States of Alagoas, Ceará, Paraíba, Pernambuco, Rio Grande do Norte and Sergipe decided that it is possible to examine a second criminal revision in the same case when verified that the final decision of the first criminal revision had violated the Constitution or the criminal law.
The Revision is a criminal petition, such as the habeas corpus, exclusive to the defense that aims to question a final decision i) when it was rendered contrary to the criminal law or the evidence presented to the court; ii) when it was based on fake evidence; or iii) when there is new evidence that may prove the defendant’s innocence or decrease the period of imprisonment, as provided by the article 621 of the Criminal Procedure Code.
In the present case, a defendant was convicted for money laundering of assets as result of belonging to a criminal organization. However, in the moment of the money laundering the crime of criminal organization was not provided by the Brazilian Law.
The Brazilian money laundering law provides that it is only a crime to launder money originated from another crime. Since criminal organization was not a crime until 2013, the Supreme Federal Court of Brazil (“STF”) determined the acquittal of all individuals that were convicted for money laundering when the original money was linked solely to a criminal organization before 2013.
Since the STF’s decision was rendered after the final decision, the defense filed the first criminal revision and required the acquittal of the defendant in accordance with the STF’s precedent. At the opportunity, the TRF-5 acquitted the defendant of the money laundering crime but decided that it was possible to convict the defendant for handling stolen goods, provided by the article 180 of the Brazilian Penal Code. After the final decision of the first revision, the defense filed a second criminal revision to TRF-5.
According to the Court, when the Court acquits a defendant of the crime of money laundering, but convicts him for handling stolen goods, the decision exceeds the provision of the article 626 of the CPP, which admits the amendment of the sentence to convict the defendant for another crime that better matches the facts in the criminal proceeding. As underpinned by the Court, the excess occurred because the decision of the first criminal revision only intended to the convict the defendant for something as a “consolation crime”.
In addition, the final decision of the first criminal revision also had violated the principles of the adversary system and of absolute defense, provided by the Brazilian Constitution in its article 5, item LV. Thus, the TRF-5 decided the second criminal revision would be not only examined but also granted.
Although the law only provides for the possibility of a second criminal revision in the event of new evidence, the decision of the TRF-5, despite not binding to the other Brazilian courts, is important to the right of defense, since it recognizes the possibility of criminal revision in cases in which there is a violation of the Federal Constitution and penal legislation in the previous criminal revision.
STF DEEMED AS ILLEGAL THE EVIDENCE OBTAINED THROUGH WIRETAPPING BASED EXCLUSIVELY ON ANONYMOUS TIP
In the judgment of a habeas corpus the Justice of the Brazilian Supreme Federal Court (“STF”), Edson Fachin, deemed as illegal the evidence obtained through wiretapping based exclusively on anonymous tip. In the present case, the police station opened investigation to investigate a crime of drug dealing after it received anonymous tips. On the same day, the police detectives drafted an investigation report suggesting the request for wiretapping, which was done by the Chief of Police.
After the authorization by the Judge, the defense of one of the individuals under investigation filed a writ of habeas corpus to the Court of Appeals of São Paulo, which was denied. Subsequently, an appeal to the Brazilian Superior Court of Justice (“STJ”) was also filed and it was also denied. Before this situation a new writ of habeas corpus was filed to the STF which was granted by Justice Fachin.
According to Justice Fachin, the decision that authorized the wiretapping lacked adequate reasoning and did not present arguments regarding the indispensability of the wiretapping, both minimum requirements for the wiretapping to be authorized. For these reasons, the writ of habeas corpus was granted.
Decisions of this nature with no reasoning are common in Brazilian courts. Therefore, the STF’s decision is seen as of paramount importance in order to combat poorly reasoned judicial decisions and decisions that do not complying with legal requirements, which end up violating fundamental rights of people under investigation.