THE BRAZILIAN SUPERIOR COURT OF JUSTICE DISCUSSES CONDITIONS TO CLOSE POLICE INVESTIGATIONS FOR TAKING AN UNREASONABLE TIME TO END
The Brazilian Superior Court of Justice (“STJ”) discussed conditions to close police investigations that go on for an unreasonable amount of time. This case decision was rendered in the judgement of a petition for a writ of habeas corpus that requested the closing of investigations in which a public official had been investigated for embezzlement since 2013.
According to the Justice Sebastião Reis Júnior, an investigation can last for more than six years. However, due to the simplicity of the case, the delay of the Police to finish the investigations and the lack of evidence gathered to formally establish the public official as a person under investigation, the perpetuation of the investigation was unjustifiable.
The majority of the Justices voted in the same way as Justice Reis Junior. Justice Rogério Schietti disagreed and underpinned that the public official was not formally under investigation and that he had not informed to the Court any illegal act by the Police. Therefore, the writ could not be used to question administrative and legal proceedings that did not represent a risk to the freedom of the individual.
In addition, Justice Schietti suggested conditions that could be used to analyze if an investigation should be closed for going on for too long. Among them is the complexity of the investigation; the cooperative behavior of the people who were summoned to give their statement; the complexity of judicial expertise if needed; the need of any letters rogatory; the need of national or international cooperation between the Public Authorities; and the lack of engagement by the Public Authorities to investigate the facts.
In practice, we see several cases of investigations that go on for years, without any justification. In fact, in the Lava Jato Probe had several investigations that remained active, even after the indictment of some of the people under investigation. For this reason, it is important to establish criteria as to what is considered a reasonable time an investigation can remain open.
THE BRAZILIAN SUPERIOR COURT OF JUSTICE DEEMS IT IS LEGAL TO FINE AND FREEZE ASSETS FOR DATA PROVIDERS THAT DO NOT COMPLY WITH JUDICIAL DECISIONS IN CRIMINAL LAWSUITS
The Brazilian Superior Court of Justice (“STJ”) decided that it is possible to fine and to freeze assets of data providers in the amount fined due to non-compliance with legal decisions that determined the provision of relevant information for criminal lawsuits.
In the court session, two questions arose from the case: if it was possible to apply daily fines due to delay on providing the requested information, which is not provided by Criminal Procedure Code ; and if was possible to perform the freezing of assents in the amount of the fine applied, instead of having to propose an independent civil enforcement lawsuit.
According to the Court, it is possible to fix a daily fine if the data provider delays in providing information after a court order. The Court underpinned that this possibility, not only is provided by the Brazilian Civil Rights Framework for the Internet (Law no 12.965 of 2014), but it also is a result of a “General Power of Precaution” of Justice, admitted when the case situation does not involve measures against the freedom, and it does not violate the constitutional principle of no self-incrimination (nemo tenetur se detegere) since the data provider is not investigated but only a third party which cooperation is essential to solve the case.
In addition, regarding second question, the Justice decided that the block of fine value in the same lawsuit results of the same “General Power of Precaution” of Justice. Thus, the block is also possible.
The decision is questionable, given that it extends the concept of general power of caution and innovates by allowing the fine, which is not provided for by law. In any case, this decision can represent a real change in the penalties established to companies that do not comply with decisions rendered by the criminal justice.
It is also worth noting that the imposition of a fine is not the only appropriate penalty for non-compliance with a judicial decision. The refusal to provide the requested information may lead to the opening of a police investigation or investigation procedure by the public prosecutor’s office for the crime of disobedience.
THE BRAZILIAN SUPREME FEDERAL COURT ADMITTED THE QUESTIONING OF PLEA AGREEMENTS LEGALITY BY INDIVIDUALS MENTIONED
In the judgement of the two petitions for habeas corpus presented by accused individuals that questioned the legality of plea agreements signed between a person who turned state’s witness and the Public Prosecutor’s Office of Paraná (“MPPR”), the Brazilian Supreme Federal Court (“STF”) admitted to be possible for a person mentioned in a plea agreement to raise concerns in court regarding the plea agreement.
The decision is a milestone in plea agreements, since previously, people mentioned in the plea agreement were not allowed to question in court the legality of the plea agreement. According to the Justice Gilmar Mendes, the plea agreement is a contract between the person who turns state’s witness and the Public Prosecutor or Chief of Police. However, since this contract may affect third parties with imprisonment, searches and seizures, assets freezing etc., the plea agreements cannot turn become untouchable, even more when the agreement is illegal.
In this analyzed case, one of the person who turned state’s witness had his agreement terminated since he had lied, hidden information and committed a crime. During the related criminal lawsuit, this state’s witness refused to give his statement under the argument that the Public Prosecutors had been defrauded the agreement and terminated it arbitrarily. Not long afterwards, the same state’s witness and the Public Prosecutor’s Office signed a new agreement regarding the same facts in which the state’s witness accepted the conditions to help the investigations and retract the accusations against the Public Prosecutors.
Regarding that, Gilmar Mendes underpinned the conditions and benefits of the agreement must be provided by Law and therefore the new agreement is illegal. He also decided the benefits given to person who turns state’ss witness must be kept, because the MPPR gave cause to illegality of agreement.
At last, Justice Gilmar Mendes pointed out the need of a detailed record of negotiations and previous statements to be possible the future analysis of the legality of agreements.
NEW SYSTEM OF SEARCH OF ASSETS SEEKS TO GIVE MORE AGILITY TO CRIMINAL LAWSUITS
In the last few days, the Judiciary Search of Assets System (“SisbaJud”) has started to operate. The introduction of the SisbaJud is result of a joint effort of the Brazilian National Justice Council (“CNJ”), the Central Bank of Brazil and the Brazilian National Treasury Attorney’s (“PGFN”). The SisbaJud aims to replace the old system – BacenJud – that was technologically outdated.
Besides retrieving basic information regarding bank accounts, which was already possible with the BacenJud, the SisbaJud allows Courts to require detailed financial information regarding assets that are object of investigations and criminal lawsuits, such as bank statement, contracts to open bank accounts investments, credit cards invoices, currency exchange agreements, copies of checks, etc., directly from financial institutions.
Currently, these documents are requested through official letters to the financial institutions. It is not uncommon to see letters that take weeks and sometimes months to be answered. Thus, it is expected that with the introduction of SisbaJud and the dismissal of certain official letters, information can be provided with greater agility.
In addition, the SisbaJud also allows the quick electronic freezing not only of assets in bank accounts, but also of securities. In other words, companies targeted may have not only assets in their checking account frozen, but also have their investments constricted.