Brazil: KLA Newsletter - February

Last Updated: 13 March 2019
Article by Koury Lopes Advogados

Environmental Law

Superior Court of Justice publicizes 11 consolidated understandings on Environmental Law

The Superior Court of Justice ("STJ") published 11 settled case law based on its rulings about environmental damage. Such consolidated case-law deals with issues varying from the liability of the polluter for the environmental damage up to cases of payment of compensations for moral damages, as briefly mentioned below.

1) The liability for environmental damages is strict, based on the theory of integral risk, which prevents the polluter (or its successor) of allege civil liability exclusion to prevent their obligation to indemnify. (Understanding judged under Article 543-C of Code of Civil Procedure of 1973 – Themes No. 681 and 707, "a")

2) Who deforest, occupy, exploit or prevent the regeneration of the Permanent Preservation Area causes unequivocal ecological damage, giving rise to a obligation (propter rem) to fully restore and indemnify the degraded environment and third parties affected under the strict civil liability regime.

3) The recognition of the strict liability for environmental damages does not release of the demonstration of the causation between the conduct of the and the result.

4) The allegation of a third party exclusive fault for an accident, as a liability exclusion, must be rejected, based in the integral risk theory and the strict liability applicable to the environmental damage (Article 225, Paragraph 3rd of Brazilian Federal Constitution and Article 14, Paragraph 1st of Law No. 6,938/1981), being the the polluter responsible due to the polluter-payer principle. (Understanding judged under the provisions of Article 543-C of Code of Civil Procedure of 1973 - Item No. 438)

5) There is no statute of limitation for a reparatory claim for damages caused to the environment.
KLA Note: The imprescriptibility of such reparatory claim (not subject to a statute of limitation) was recognized by the Brazilian Supreme Court as a matter of general repercussion. This means that the judgment of the leading case (RE 654833) will be considered as a Precedent and shall, therefore, be applied for all identical cases.

6) The initial term for the application of interest is the date of the damaging event for reparation of moral and material damages resulting from an environmental accident.

7) The reversal of the burden of proof applies to environmental damages actions. (STJ's Precedent No. 618)

8)The theory of accomplished fact is not applicable in the Environmental Law. (STJ's Precedent No. 613)

9) There is no vested right for the continuity of situations that causes damage to the environment.

10) The professional fisherman is a legitimate party to apply for compensation due to environmental damage that caused the reduction of fishing in the affected area, using his professional registration, even if granted after the accident, and other evidence sufficient to convince the judge about the exercise of this activity.

11) Indemnification for moral damages is due because of the intense suffering of the artisanal professional fisherman, caused by the deprivation of working conditions resulting from environmental damage. (Understanding judged under the provisions of Article 543-C of Code of Civil Procedure of 1973 - Item No. 439) "

Life Sciences

Sanitary Surveillance sets new provisions for licensing in the state of São Paulo

On Thursday, January 31, a new version of the Ordinance CVS 1 was published. The Ordinance regulates the licensing of establishments of interest for public health and sources of ionizing radiation, within the scope of the Sanitary Surveillance State System (Sevisa).

The new version establishes more specific and precise definitions about the establishments that depend on the licensing proceedings performed by the state and local sanitary surveillance agencies, allowing a clearer view on the competencies of the bodies and entities involved and on the characterization of the related activities. The amendments arise from the periodical revision of the regulation and the incorporation of the contributions presented by the stakeholders, as provided in art. No. 44 of CVS Decree 1/2018.

To access the new version, click here. If you want to access only the changes done in relation to the previous year Decree, click here.

Penal Empresarial

According to the Brazilian Superior Court of Justice, alternative sentences cannot be executed before a final decision

On February 12th, Justice Felix Fischer of the 5th Division of the Superior Court of Justice, in a writ of Habeas Corpus, decided that it is illegal to execute alternative sentences before the sentence is final.

Still, according to this decision, the precedent of the Supreme Federal Court of Brazil for the execution of sentences before a final decision only applies to prison sentences. Based on that understanding of the precedent, the Court suspended the decision of the Regional Federal Court of the 4th Region of Brazil.

Criminal cases may have their statute of limitations suspended when under review of the Supreme Federal Court

In the last week, the Supreme Federal Court published a decision in which it decided that the statute of limitations of criminal cases may be suspended in cases in which there is the recognition of "General Repercussion". In these cases, the statute of limitations would be suspended until the case is tried by the Court.

The Supreme Federal Court's intention is to avoid that cases be struck out due to the statute of limitations while they await trial.

The Plenary of The Supreme Federal Court of Brazil will decide if declaring and not paying the ICMS Tax is crime

Justice Roberto Barroso of the Supreme Federal Court decided, in an injunction request in a writ of habeas corpus that, in case of a conviction, the sentence of two traders who were charged for not collecting ICMS tax could not be executed. Justice Barroso also decided that the case should be tried by the Plenary of the Supreme Federal Court.

The case gained attention in August of 2018, when the Third Division of the Superior Court of Justice of Brazil decided that the absence of payment of ICMS, despite being declared, could, in theory, constitute a crime of misappropriation of taxes, provided for in article 2, item II, of Law No. 8,137 / 90.

This decision was criticized, since the crime of tax misappropriation foresees the appropriation of values in tax substitution. However, in the case of ICMS, the person responsible for the payment of the tax is the taxpayer himself, so the absence of ICMS tax payment would be a mere failure to pay and not a crime.

It is expected that the Plenary of the Supreme Federal Court will decide whether declaring and not collecting ICMS is crime or whether it is mere failure to pay. If the decision of the Supreme Federal Court is unfavorable to taxpayers, it is possible that there will be an increase of criminal cases due to the failure to pay the ICMS tax.

The Minister of Justice and Public Security presents anti-crime proposal

Recently, the Minister of Justice and Public Security, Sérgio Moro, presented a proposal that provides for changes in 14 laws, such as the Penal Code, the Criminal Procedure Code, the Law of Execution of Criminal Sanctions, the Drug Law, the Electoral Code, the Money Laundering Act and the Criminal Organization Act.

Despite considerable popular support, the "anticrime" proposal will face difficulties both for its approval and for its implementation. The proposal revisits issues that are the subject of previous bills, that were never passed, and proposes measures that contradict precedents of the Supreme Federal Court.

Among the measures that have already been the target of bills that have not captivated the interest of the congress, are the criminalization of slush funds, changing statute of limitations deadlines and hardening of sanctions for crimes against public administration.

There are also measures that have been declared unconstitutional by the Supreme Federal Court. This is the case, for example, of the proposal that certain convicts for certain crimes must start their sentences in closed prisons. The Supreme Federal Court has also ruled unconstitutional laws that determine that defendants must await trials under custody, since it violates the principle of presumption of innocence. On that note the Court will most likely have the same understanding on the prosed measure to limit prison furlough.

In addition to revisiting issues that already have been declared unconstitutional by the Supreme Federal Court, there are some unconstitutional bill proposals that deserve even greater reflection and caution, such as extended confiscation and a widening of negotiated justice.

The proposal intends to expand the current model of confiscation of property for convicts for crimes with a maximum sentence of more than 6 (six) years. In the proposed model, in addition to the possibility of loss of assets obtained with the proceeds of crime, it allows the confiscation of assets whose lawfulness the defendant could not prove. That is, burden of proof is shifted, and the defendant is the one who needs to demonstrate that her assets are of lawful origin. If the defendant is unable to do so, the judge may confiscate difference between the total assets of the defendant and the assets compatible with her lawful earnings.

Thus, if the defendant cannot prove the origin of her property (which becomes more difficult over time), she may have all her property confiscated, even if part of it is of lawful in origin. In this sense, it can be considered that the extended confiscation violates the principles of presumption of innocence and the right to property.

Another controversial point of the project is the proposal to extend the hypotheses of negotiated justice, in order to speed up criminal procedure and save public resources. However, just as it happens in the United States (the inspiration for the proposed model), the implementation of the plea bargain model in Brazil could lead many people to confess to a crime that they did not practice, fearful of facing a criminal trial and receiving a hard prison sentence in the end.

The proposal has just become a Bill to be analyzed and voted on by the National Congress, and is already subject to harsh criticism. The Brazilian Bar Association has already set up a group, through the Special Committee for the Guarantee of the Right of Defense and the National Legislation Commission, to study the measures and closely follow the discussions in Congress.

The Superior Court of Justice of Brazil has decided that lawful interception will only be granted when there are no other available means of proof at the time of application for the measure

In the most recent publication of "Jurisprudence in Theses" (Issue nº 117), the Superior Court of Justice addressed the topic of Lawful interception. Two theses of great relevance were highlighted:

The first one establishes that lawful interception will only be granted when there is no other means of proof available at the time the interception is requested, and it is up to the defense to demonstrate violation of article 2, item II, of Law 9.296 / 96 (Telephone Interception Law).

The second one establishes that there is no need for full transcription of the dialogues of intercepted telephone calls, since both the Federal Constitution and Law 9.296 / 96 (Law of Telephone Interception) do not make any demands in this regard.

Court of Justice of São Paulo will have specialized divisions in economic crimes

The São Paulo Court of Justice intends to implement, later this year, at least two divisions specialized in tax crimes (Law 8.137 / 90), bid rigging (Law 9.666 / 93), money laundering (Law 9.613 / 98) and organized crime (Law 12.850 / 13). They will receive the lawsuits currently being processed at the Mário Guimarães Criminal Complex.

According to the Court of Justice of São Paulo, these types of cases have a degree of differentiated complexity. "Cases of criminal organizations often involve wiretapping of phones, dawn raids, and even plea deal in which individuals turn state's evidence. In addition, they tend to have, on average, more defendants than other criminal cases."

The studies for the creation of these division began when the current president of the Court of Justice of São Paulo, Justice Manoel de Queiroz Pereira Calças, was Justice General Corregidor of Justice.

At the end of 2018, the opinion and draft of the Resolution (which refers to the jurisdiction of the 33rd and 34th Criminal Divisions for 1st and 2nd Divisions of Tax Crimes, Criminal Organization and Money Laundering), prepared by the advisory judges Carlos Eduardo Lora Franco and Rodrigo Nogueira (General Corregidor of Justice) and Paulo Rogério Bonini (of the Presidency of the Criminal Division), were approved by Justices Geraldo Francisco Pinheiro Franco (current General Corregidor of Justice) and Fernando Antonio Torres Garcia (current president of the Division of Criminal Law) and sent to the Superior Council of the Judiciary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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