The Brazilian Superior Court of Justice (“STJ”) decided that the businessman who refrained from rectifying false information at the opportunity in which he amended the articles of association of a company did not commit crime of false statements.

The decision was rendered in an appeal in which a businessman was convicted for false statements because he presented amends to article of association, in 2010 and 2011, to the commercial registry office without taking out the name of two people who were used as straw men. Their names were fraudulently inserted in the articles of association in 2003 and 2007.

According to the decision that was overturned, the 4-year statute of limitations between the crimes and the indictment in 2013 had not passed because false statements had continued in 2010 and 2011, when the businessman presented the amends to the article of association in the commercial registry office without  rectifying the false information.

This case decision opens an important discussion regarding the moment in which the false statements crime is committed.

The STJ’s Justices decided based on case law that the crime of false statements is a crime that does not need a harmful consequence to occur. Thus, the insertion of false information in the document itself constitutes a crime.

The Court decided that despite being possible to verify the effects of false information after they are inserted in documents, false statements is not an ongoing offense. Thus, it was necessary to recognize that the period of the 4-year statute of limitations starts on the date in which the last false information was inserted in document, in 2007, which meant that a criminal action was barred after 2011.

Another important discussion is whether the businessman committed new crimes of false statements in 2010 and 2011, when he amended the company’s articles of association without correcting the false information. In that regard, the article 299 of the Brazilian Penal Code punishes the omission of information, but only if one has the duty to provide such information to a public entity, which was not the case. Therefore, it did not constitute a crime not rectifying the articles of association.

Finally, it seems that STJ adopted a correct decision in this case, since it recognized that the statute of limitations period regarding the crimes committed in 2003 and 2007 barred a criminal action even if the businessmen did not rectify the information in articles of association.

The Federal Court of São Paulo suspended a lawsuit against two individuals that entered into a Tax Payment Plan after the indictment by the Court.

In this case, the Federal Public Prosecutor’s Office (“MPF”) underpinned that it would not be possible to suspend the criminal action because the item 2 of article 83, from Law n. 9.430/96, included by Law n. 12.382/2011, provides the suspension of lawsuits regarding tax crimes during the period of tax payment plan, as long as the plan was signed before the indictment.

According to the MPF, the suspension provided by law is not the same as the case of the businessmen, because they had signed the tax payment plan after the indictment by the Court and before the court analyzed their written defense motion.

This case brings an important discussion to the table, regarding is the actual moment of indictment in Brazilian Law.

In 2008 the Brazilian Code of Criminal Procedure was amended in order to allow the defense to present a first written defense motion in which it can out into question the legality of the indictment and any other arguments. Afterwards, the Court will analyze the arguments in order to verify whether the indictment is according to legal requirements and whether there is enough evidence that the crime occurred and to charge the person for it. The court, may acquit the person or do a late rejection of the request for indictment (in this case, revoking the indictment decision).

Therefore, there is a controversy regarding whether the indictment occurs before the analysis of the written defense, or after it. There are authors in legal literature that believe that the indictment occurs in both moments.

The Federal Court decided that since there is a controversy regarding the actual moment of the indictment,  the interpretation that favors the defendant should be used, in respect to the in dubio pro reo principle.

The Federal Court also considered that the businessmen were adhering to the installments and that after the full payment the law establishes that the criminal action has to be dismissed.

The Brazilian Federal Public Prosecutor’s Office (“MPF”) enacted internal guidelines (“Ordinance nº 01”) that provides for plea agreements to be done with legal entities and individuals jointly. The main aim of these guidelines is to provide legal certainty to the plea agreements.

The Law n. 12.846/2013, also known as “Anti-Bribery Law”, provides that the leniency agreement is exclusive to legal entities involved with acts against national or foreign public administration such as corruption and fraud in public bids (tenders). The Law does not provide the possibility of extension to individuals.

Conversely, the Law n. 12.850/2013, also known as “Criminal Organization Law”, recently amended by the Law nº 13.964/2019 (“Anticrime Law”), provides the plea agreement only to individuals that committed crimes related to criminal organizations.

According to the Ordinance nº 01, as leniency agreements signed by legal entities generally involve crimes committed by individuals such as corruption. The strict adherence to the law could entail to leniency agreements that provide benefits only to legal entities and set aside individuals that helped during the investigations, such as shareholders, directors, executives, employees etc.

In order to avoid this situation, the MPF, since the beginning of Car Wash Probe, started to include the individuals in the leniency agreements through  adhesion terms as though they were plea agreements. Thus, the agreements would affect both legal entities and individuals.

However, the adhesion term was not provided by law at the time. From now on, the Ordinance nº 01 guides the Public Prosecutors to unify the agreements bringing predictability and legal certainty to the parties involved.

It is important to emphasize that the adhesion term must observe the rules of the plea agreement, as introduced by the Anticrime Law (Law n. 13.964/2019). Therefore, for example, it is prohibited for the agreement to provide for any different type of prison sentences not provided by law (which used to be common in the past).

The Ordinance nº 01 also provides that the agreements with individuals must be tailored, with benefits that observe the circumstances of the facts involved, evidence presented, the usefulness of the plea to the investigations, among other factors.

The ordinance is the result of an effort by the Public Prosecutor’s Office to provide greater legal certainty to the leniency and the plea agreements. In many cases, companies that were interested in signing leniency agreements. Although they conducted internal investigations, they depended on the collaboration of the individuals involved, so that they could point out to the authorities, for example, the names of corrupted public officials, the modus operandi and the extent of damage to the Government. In this sense, the Ordinance nº 1 is welcomed as it regulated the practice of term of adhesion by individuals, which had been taking place for several years.

The 2nd Criminal Chamber of the Federal Public Prosecutor’s Office (“MPF”) published the  recommendation number 98, which allows the proposal of a criminal non-prosecution agreement (“NPA”) in criminal proceedings opened before the enactment of the Anticrime Law.

The NPA was included in the Criminal Procedure Code by Law No. 13.964 / 2019 (“Anticrime Law”). According to article 28-A, when it is not a case of dropping a police investigation  and the suspect has confessed circumstantially the practice of a criminal offense without the use of violence or serious threat and that criminal offense has a a minimum prison sentence of less than 04 years, the Public Prosecutor may propose the agreement, as long as it is necessary and sufficient for deterrence.

In this case, the Public Prosecutor’s Office refrains from requesting the indictment and the suspect complies with the conditions established in the agreement.

Since the law establishes that the NPA can be proposed as soon as the investigations are done, the question arose whether it would be possible to offer an agreement in the course of criminal actions, especially those already opened before the the Anticrime Law.

In this sense, the MPF’s statement is welcomed because, in addition to setting an answer to the important question, it is also in line with desincarceration that the NPA indends.

In this regard, even if there is an ongoing criminal action, if all the conditions for the NPA are fufilled, there would be no reason for not proposing it. Moreover, the NPA represents a saving of public resources, especialling during the criminal action. Thus, the Justice System could concentrate more efforts and resources for more complex and serious cases.

Despite the progress brought by the recommendation, it should be noted that its provisions are non binding and only represent guidelines for Federal Public Prosecutors when faced with the circumstances already exposed.

It is also important to highlight that the recommendation was edited by the Federal Public Prosecutor’s Office, that is, for situations that involve crimes that are within the jurisdiction of the Federal Justice, with no provision or recommendation for the Public Prosecutor’s Office at the state level.

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