By Claudio Bidino and Fernanda Tórtima
Law 13.964, which came into force on January 23 and originated from the so-called “anticrime” package, was the major highlight in Criminal Law in 2020. Despite the punitive reputation it received, this new law enshrined important criminal and procedural guarantees in Brazilian legal order, among which several that had been previously advocated by legal scholars or even recognized by case law are worth noting. These reforms sought to ensure better control over the credibility of the words of justice collaborators.
This was immediately evident in relation to the necessity of corroborating evidence for the statements of the collaborator. The Law on Criminal Organizations already required that no conviction could be based solely on the statements of a collaborating defendant. This requirement, however, was extended by the “anticrime” law, which reformulated Section 16 of Article 4 of the referenced legal statute to include, as decision-making acts requiring corroboration, not only sentences but also the issuance of preventive or personal measures (Clause I) and the acceptance of criminal complaints or charges (Clause II).
The requirement for corroborating the content of collaboration for other decision-making acts, beyond the conviction itself, was already recognized in 2018 by the Second Chamber of the Federal Supreme Court. The court stated that plea bargaining would be just a means of obtaining evidence, and that “the statements of the cooperating defendant, without other reliable corroborative evidence, are not sufficient to sustain a positive judgment of admissibility of the accusation.”
The new law, as stated, formalized this requirement, making it mandatory to corroborate the content of the collaboration also for the issuance of personal and real precautionary measures.
However, it must be noted that the legislator could have been clearer about what it intended to indicate as “real precautionary measures,” whether these refer only to precautionary asset restraint measures or also to measures intended for the seizure of evidence. Criminal law doctrine on real precautionary measures is scarce, and, in particular, there is no consensus on the nature of search and seizure measures. In this context, it seems urgent that legal scholars and case law focus on the (im)possibility of authorizing the issuance of search and seizure measures based solely on the word of the collaborator, to clarify, for example, whether this legal requirement of corroboration applies to measures intended to search for and seize objects that serve as elements of proof in the commission of the crime.
Another significant innovation brought by Law 13.964/19 (§4 of Article 3-B) is the provision for prior evidentiary instruction before the collaboration agreement is signed, when there is a need to identify or supplement its object, the facts narrated, their legal definition, relevance, utility, and public interest. When used properly, conducting a preliminary investigation could prevent certain accusatory narratives presented by collaborators in their annexes from being entirely uncorroborated or completely unfeasible, thus minimizing the risk of irreparable damage to the reputation of individuals unjustly accused, whose lives could be ruined simply by the publication of annexes incapable of producing legal effects due to the lack of effective corroborating elements and the impossibility of ever producing them.
For illustration, imagine a collaborator who, in good faith, but only having heard rumors, names a bank and an offshore account that supposedly belonged to a person who could potentially be implicated. A simple cooperation effort could confirm or refute the story, preventing, in case of non-confirmation, the person’s name from appearing in the narrative. Alternatively, consider a situation where a potential person to be accused is investigated for attempting to withdraw bribe money from a certain “money changer’s” office. A simple request for building entry records could be useful for verifying the veracity of the story. If no corroboration is found, it would not make sense to maintain the account in the agreement, for fear of unnecessarily exposing the reputation of an individual against whom—already known in advance—no proof can be produced later.
Finally, a third significant innovation brought by Article 14 of Law 13.964/19, which has yet to receive due attention from legal scholars and case law, is the requirement that all collaboration negotiations must be recorded “by magnetic recording means, stenography, digital or similar techniques, including audiovisual, aimed at ensuring greater fidelity to the information.” As experience and specialized studies on the subject show, recording the negotiations to sign the collaboration agreement, as well as informal interviews with potential collaborators, would allow those potentially implicated, and their defenders, to ensure that the authorities responsible for the investigation did not lead the collaborator to present a narrative that better suited a certain accusatory version, either through a proposal conditioned on a specific result that induces the collaborator to spontaneously distort reality to close the deal, or through questions that implicitly suggest the answer expected from the collaborator.
In fact, because investigative authorities often do not realize they may be leading the defendant to present a version of events that diverges from reality, the subsequent analysis of the records of negotiations before the agreement is signed is crucial not only for the defense of those accused but also for the Public Prosecutor’s Office. As the guardian of the law, it must ensure that justice is genuinely served.
In light of this context, it is not surprising that studies from countries more familiar with plea bargaining argue that recording the negotiations between the collaborator and the investigation agents is an indispensable tool for verifying the credibility of their accounts. However, introducing such a norm into Brazilian law will be of little use if the informality that typically characterizes plea bargaining negotiations persists, and if the courts do not act rigorously to ensure compliance with Article 4, § 13, of Law 12.850/13.
In conclusion, it is hoped that the measures introduced by Law 13.964/19 at the beginning of this year, which have been highlighted in this text, will mark only the beginning of a new phase of greater rigor in controlling the credibility of collaborators’ words. This, however, will not be possible without greater involvement from legal scholars, case law, and other actors in the criminal justice system.
NOTES
[1] Former wording of § 16 of Article 4 of Law 12.850 of 2013.
[2] STF, INQ 4.074/DF, 2nd Panel, Rel. Min. Dias Toffoli, judged on 14.08.18. In the same sense: STJ, RHC 105.181, 6th Panel, Rel. Min. Rogério Schietti, judged on 23.04.19.
[3] In a thorough study on the subject, Cleunice Pitombo first clarifies that the search is a tool of varied utility and that its purpose is only achieved when what is being searched for is found, which would be a reason to, in theoretical terms, separate the search from the seizure, giving them dignity and autonomy (Da busca e da apreensão no processo penal, 2nd edition, Ed. RT, 2005, p. 119). Later, she cites Spanish Professor Ernesto Pedraz Penalva, who states that real precautionary measures are procedural measures of an assuring nature, functionally aimed at protecting pecuniary interests connected to the criminal act, to be declared in the sentence, excluding seizure from the list of real precautionary measures (op. cit., p. 234). She then argues that “it is better not to classify, without reservation, the seizure as a precautionary measure, unless the figure, if the model of criminal procedural precautionary measures departs too much from the civil; or to see it only from one of its aspects: securing a piece of evidence” (op. cit., p. 238).
[4] In a thorough study on the subject, Cleunice Pitombo first clarifies that the search is a tool of varied utility and that its purpose is only achieved when what is being searched for is found, which would be a reason to, in theoretical terms, separate the search from the seizure, giving them dignity and autonomy (Da busca e da apreensão no processo penal, 2nd edition, Ed. RT, 2005, p. 119). Later, she cites Spanish Professor Ernesto Pedraz Penalva, who states that real precautionary measures are procedural measures of an assuring nature, functionally aimed at protecting pecuniary interests connected to the criminal act, to be declared in the sentence, excluding seizure from the list of real precautionary measures (op. cit., p. 234). She then argues that “it is better not to classify, without reservation, the seizure as a precautionary measure, unless the figure, if the model of criminal procedural precautionary measures departs too much from the civil; or to see it only from one of its aspects: securing a piece of evidence” (op. cit., p. 238).
Published on Consultor Jurídico.