In this White Collar newsletter, you will find the following news:
- Crime Committed in a Continuous Manner Does Not Bar the Execution of an ANPP
- STJ: No Illegality in Using Evidence Collected from Trash
- STF Rules That Execution of Penalties in Plea Agreements Requires Final Judgment
- TRF-2 Revokes Arrest Warrant for Defendant Residing Abroad
Crime Committed in a Continuous Manner Does Not Bar the Execution of an ANPP
Minister Ribeiro Dantas, from the 5th Panel of the Superior Court of Justice (STJ), granted the Special Appeal No. 2,406,856 to acknowledge that the continuity of crimes—defined as the commission of two or more offenses considered as a continuation of the first—does not preclude the execution of a Non-Prosecution Agreement (ANPP).
The Federal Regional Court of the 3rd Region (TRF-3) had previously ruled out the application of the ANPP in a case where the defendant was convicted of embezzlement committed sixteen times as a continuous crime. The court argued that such behavior constituted evidence of a commitment to criminal activity.
In his decision, Minister Ribeiro Dantas proposed establishing the legal principle that "the continuity of crimes is not listed as a bar to the Non-Prosecution Agreement (ANPP) under Article 28-A, §2, II of the Code of Criminal Procedure (CPP)." He stated that the requirement applied by TRF-3 went beyond the provisions of the CPP and created a new restriction on the ANPP that lacks legal foundation.
Based on this reasoning, the appeal was upheld, and the Special Appeal was granted. The case was referred to the Federal Public Prosecutor's Office to evaluate the possibility of offering an ANPP to the defendant.
STJ: No Illegality in Using Evidence Collected from Trash
The 6th Panel of the Superior Court of Justice (STJ) ruled that evidence found in trash by investigators is valid and denied Habeas Corpus No. 190,158, filed by three suspects involved in the illegal gambling industry and money laundering.
The case raised questions about the validity of using evidence obtained without a judicial warrant, specifically materials collected from garbage bags discarded in public areas. The defense argued that collecting such materials violated constitutional rights such as privacy and constituted a "fishing expedition" (an indiscriminate search for evidence).
However, the Prosecutor General's Office contended that once the objects were discarded in the trash, they no longer maintained any connection to the privacy of the suspects, as they were abandoned in public spaces. Thus, there was no violation of privacy, as the right in question was limited in the specific context of the case.
Minister Sebastião Reis Júnior, the case rapporteur, stated that when individuals dispose of documents and leave them in publicly accessible locations, they cannot expect confidentiality over any information or documents. Therefore, the STJ ruled that evidence discarded in public spaces may be legally used in criminal investigations without infringing on fundamental rights.
STF Rules That Execution of Penalties in Plea Agreements Requires Final Judgment
The 2nd Panel of the Supreme Federal Court (STF) upheld Minister Gilmar Mendes' decision in Habeas Corpus No. 240,971, which prohibits the immediate enforcement of penalties in cases involving plea agreements without a final judgment. The unanimous decision overturned a previous ruling by the Superior Court of Justice (STJ), which allowed immediate imprisonment after the approval of a plea agreement.
Minister Gilmar Mendes emphasized that enforcing a custodial sentence prior to a final judgment violates STF jurisprudence, which requires penalties to be imposed only after a definitive conviction, ensuring due process and the presumption of innocence.
In his opinion, the Minister highlighted the "necessary dialogue of legal sources," referring to the need for joint interpretation of criminal, procedural, civil, and administrative principles applicable to plea agreements. Such agreements presuppose the finality of the criminal conviction for their effects—such as custodial sentences—to be enforceable.
While the decision lacks binding authority, it is likely to prompt the STJ to revise its understanding of the matter, aligning with the STF's stance that penalties stipulated in plea agreements can only be enforced following a final judgment.
TRF-2 Revokes Arrest Warrant for Defendant Residing Abroad
The Federal Regional Court of the 2nd Region (TRF-2), in Rio de Janeiro, granted a Habeas Corpus to revoke the preventive detention of an executive under investigation for involvement in an alleged accounting fraud scheme. The preventive detention had been issued on grounds of flight risk due to the defendant's dual citizenship and residency abroad.
Justice Flávio Lucas, the rapporteur of the Habeas Corpus, argued that preventive detention cannot be used to compel the defendant's return to the country, particularly when they have a permanent residence abroad. Additionally, considering the defendant's cooperation with the Federal Police and the Brazilian Securities and Exchange Commission, the essential condition of risk to public order was deemed absent.
The decision also highlighted the effectiveness of international legal cooperation mechanisms in enforcing Brazilian law abroad, citing restrictive measures imposed and complied with in the defendant's country of residence as examples.
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