• Ferraresi Cavalcante – Advogados

The Supreme Federal Court (STF) restricts the sharing of the plea bargains.

Atualizado: 17 de mai. de 2019

First, one should clarify the concept of plea bargains, being an institute provided by the law whereby one investigated or charged with the practice of criminal offense decides to confess or to disclose the details of the offense and agrees to cooperate with the investigation or with the court by providing information that will effectively assist in obtaining evidence against the other authors of the crimes and against the criminal organization, said institute has legal nature as a "means of obtaining proof" (article 3, I, of Law nº. 12.850/2013).

There are several legal provisions in the brazilian legal system, such as: Criminal Code (articles 15, 16, 65, III, 159, § 4); Crimes against the Financial System - Law nº. 7.492 / 86 (article 25, paragraph 2); Crimes against the Tax Order - Law n.º 8.137 / 90 (art. 16, sole paragraph); Law of the Hediondos Crimes - Law n.º 8.072 / 90 (article 8, single paragraph); Palermo Convention - Decree 5.015 / 2004 (article 26); Law of Money Laundering - Law n.º 9.613 / 98 (article 1, § 5); Protection Act Witnesses - Law n.º 9,807 / 99 (articles 13 to 15); Law of Drugs - Law n.º 11.343 / 2006 (article 41); and Antitrust Law - Law n.º 12,529 / 2011 (article 87, sole paragraph).

The plea bargains, however, was better explained in articles 4th to 7th, of Law n.º 12.850 / 2013 (Organized Crime Law). This is currently the diploma that rules, in a general way, the plea bargains in our country, the reason for which the considerations will be made based on this Law.

The majority doctrine teaches that the terminologies "colaboração premiada" and "delação premiada" are not the same Institue. However, it is true that the plea bargain type named "colaboração premiada" has a broader concept and should be considered as gender, of which one of its species is the "delação premiada". In the colloquial language, "colaboração premiada" or "delação premiada" have the same senses and deals with a "rattler" or "snitch".

The Criminal Organization Law (12.850 / 2013) provides in art. 4th that there are five ways in which the investigated/defendant can collaborate with the ongoing investigation and the legal process, having achieved results if one of the five objectives is achieved so that the agent is entitled to the benefit.

In order to be entitled to the benefits due to the collaboration, the agent should provide effective information with which at least one of the following results: 1) Identify the other co-authors and participants in the criminal organization and the criminal offenses committed by them; 2) Reveal the hierarchical structure and division of tasks of the criminal organization; 3) To prevent criminal offenses arising from the activities of the criminal organization; 4) To recover all or part of the proceeds of criminal offenses committed by the criminal organization; and 5) To locate the whereabouts of the victim with their physical integrity preserved.

The art. 4, caput of the ORCRIM Law, provides for the benefits (awards) that may be granted to the agent: 1) Not pressing charges or pursuing conviction; 2) Cleared charges; 3) Reduction of sentence; 4) Substitution of a custodial sentence by restriction of rights; 5) regime progression.

Established the initial premises, we will contextualize the understanding of the Federal Supreme Court (STF) on the sharing of content of plea bargain and agreement of leniency.

The advent of the Criminal Organization Law (12,850 / 2013) and the success of the "Lava Jato Operation" presented to the Judiciary a new format of criminal prosecution, that is to say, based on the plea bargain, the criminal agent makes an agreement with the criminal justice system presenting means of obtaining evidence, including his confession or not, from there the individual will benefit in the sanctions, such as reduction of sentences and substitution of incarceration by restriction of rights.

Thus, six years ago, the Institute of the plea bargain is being perfected by Brazilian jurisprudence. On October 30, 2018, the STF 2ª Turma, through the vote of the Min. Edson Fachin, the spokesman in the AgReg case at Pet 7065, decided that:

"If there is delimitation of the facts, there is no impediment to sharing the term of the collaboration of testimony required by the State Prosecutor's Office (Ministério Público - MP) in order to investigate the practice of possible administrative improbity by a public agent.
It should be borne in mind that the existence of a leniency agreement signed by the legal entity linked to the employee does not in any way prevent the sharing of terms of testimony signed by the latter for use in proceedings instituted to determine possible acts of administrative impropriety.
In the case, the claim is from the MP/SC and intended for the determination of any liability of public agent mentioned in the statement of reference, a circumstance that shows, at least for now, the full compliance with the limits established with the beneficiary of the bargain."

The Federal Supreme Court (STF) has indicated that the terms of the plea bargain are not a "blank check" as a means of obtaining evidence, whether at the police or judicial stage, and the judicial authority (Judge, Public Prosecutor, Judicial Police, and Lawyer) to pay attention to the clauses involving the parties, and the lawyer must always check the limits the negotiation agreement, either of the plea bargain types or the leniency agreement in honor of the collaborator.

In this sense, Min. Rel. Fachin concluded:

"Full compliance with the limits established between the collaborator must be observed, that is, sharing must be done within the limits of the rights and duties recognized in the agreement of collaboration and with respect to the legal sphere of the respective collaborator."

Finally, the lesson from this ruling is that plea deals or leniency agreements are not allowed to be shared unrestricted, and the operator of the Law must observe the limits of the rights and duties recognized in the agreement and with respect to the legal and the submission of fundamental rights recognized by the Federal Constitution of Brazil.

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