recent criminal enforcement actions in brazil by leven siano
TRANSCRIPT
Recent criminal enforcement actions in
Brazil
by Leven Siano
Case: Vicuña (15/11/2004)
Case “Vicuña”:
Explosion, environmental damage and 4 deaths.
Aspects of the Brazilian Environmental Act 9.605/1998
Article 2 - Whosoever, by any means, contributes to the practice of the crimes defined in this law, shall be subject to the respective penalties, in proportion to the level of culpability, this includes directors, administrators, members of the board and technical counsel, the auditor, the manager, employee or representative of a juridical person, who, knowledgeable of the criminal conduct of others, does not hinder its practice, when it was possible to act to avoid it.
Article 3 - Juridical persons shall be held administratively, civilly and criminally liable as per the terms of this Law, in the cases where the infraction has been committed by consequence of a decision of the legal or contractual representative, or board, in the interests and to the benefit of the entity. Sole Paragraph - The responsibility of the juridical entity does not exclude that of the physical persons, perpetrators, co-perpetrators or participants to the same fact.
Aspects of the Brazilian Environmental Act 9.605/1998
Article 14 - The following are circumstances that diminish the penalty:
I - low level of instruction or schooling of the perpetrator;II - repentance of the perpetrator, manifested by spontaneous reparation of the damage, or significant reduction of the environmental damage caused;III - prior notice from the perpetrator of the imminent risk of an environmental damage;IV - collaboration with agents in charge of vigilance and environmental control.
Definition of criminal pollution: Federal Court Precedent.
“Any introduction of external elements to the environment is pollution, but the pollution is criminal only when this is capable of generating a risk to human health or that causes damages as defined by the applicable statute. The actual concept of pollution is larger than the administrative definition of pollution, and the concept of criminal pollution is even more restrictive [...] Extinction of penalty of the crime described in article 60 of Law 9605/98 [...] Acquittal of the defendants” (Federal Court of Appeal of the 2nd Region, 2005.51020059563, 03/02/2006).
• Crew had their passports withheld;
• Submission filed with Chief of Federal Police for Retrieval of Passports and Permission to Repatriate;
• Accusation by the Federal Public Prosecutor:
Case: Vicuña
Case: Vicuña
Case: Vicuña
Case: Vicuña
The Federal Public Prosecutor pressed charges against:
The Port Terminal Operator (insufficient contingency plan);
Director of the Terminal Operator (negligence) ;
Consultant hired to elaborate the emergency plan;
Representative of Alpina Briggs Defesa Ambiental S.A;
Representative of the Environmental Authorityl;
Superintendent of APPA (Port Authority);
Commercial Director of APPA.
Case: Tu King (12/11/2003)
Case: “Tu King”
Chinese master accused of throwing eight Africans into the sea;
Victims rescued by a fishing boat, 14nm from Pernambuco coastline;
Master accused of attempted murder;
Temporary incarceration determined by the Federal Court and confirmed by the
Supreme Court.
CONSTITUTIONAL, PENAL AND PROCEDURAL. POSSIBLE ATTEMPT OF MURDER AND ILLEGAL TRANSPORT OF PASSENGERS IN CARGO SHIP. HABEAS CORPUS. PROVISIONAL INCARCERATION. CAUTIONARY MEASURE. LEGAL PREREQUISITES PRESENT. 1. Preventive incarceration determination correctly founded. 2. Captain of cargo ship investigated for possible attempted murder (art. 121, § 2o, I and II, w/ art. 14, II, of the Penal Code, considered a heinous crime in accordance with art. 1o, I, of Law no 8.072, dated 25 July 1990) and for illegal transport of passengers (art. 124, XII, of Law 6.815, dated 19th August 1980). Crimes connected with the possible transport and throwing into the sea of eight African stowaway passengers. Foreigner, the vessel and the captain (Chinese of Dalian, China). 3. Cautionary incarceration justified due to evidence of participation and to ensure application of penal law (art. 1o, I and III, a, of Law 7.960, dated 21st December 1989), considering that the accused is a foreigner and due to his profession without a permanent address. 4. Habeas Corpus denied by majority. (TRF5. HC 200305000323552. Date:29/01/2004).
HABEAS CORPUS REFUSED BY STJ EVEN WITH THE DIPLOMATIC AUTHORITY WARRANTIN THAT THE DEFENDANT WOULD NOT LEAVE THE COUNTRY.
Case: Tu King (decision of the Federal Court of Appeal)
Case: Siete Oceanos (28/11/2001)
Case: “Siete Oceanos”
Philippine captain jailed for alleged practice of private
incarceration;
Supposed victim, Nigerian found chained in allocated
space on board;
Bail denied, incarceration converted to preventive
measure by the Federal Judge.
Case: “Siete Oceanos”
Federal Court, later recognizes that the master acted within his
legal capacity in accordance with article 498 of the
Commercial Code and article 10, III of Law 9.537/97).
Case: “Siete Oceanos”
“Art. 498 – The captain can impose correctional measures to individuals
and the crew should they disturb the good order of the ship, commit discipline failures, or do not carry
out their duties, and even to incarcerate for insubordination, or
any other crime committed on board, even if the perpatrator is a
passenger, proceeding accordingly with the required protests, which
are to be delivered with those incarcerated to the competent
authorities at the first port reached of the empire.”
Case: “Siete Oceanos”
“Art. 10. The master, in the exercise of his duties and to guarantee the safety of people, the vessel and the cargo carried can:
[...];
III – order the detention of a person in a cabin or quarters, if necesaary in handcuffs, when necessary for the maintenance of the physical integrity of third parties, the vessel or the cargo;
HABEAS CORPUS.SHIP MASTER. SUSPECTED PRACTICE OF PRIVATE INCARCERATION. ART. 148 CP. STOWAWAY. PREVENTIVE INCARCERATION OF MASTER. BRAZILIAN JURISDICTION OVER FOREIGN CARGO VESSEL IN TERRITORIAL WATERS DESTINED FOR A BRAZILIAN PORT. ART. 5, P.2 CP ART. 498 COMERCIAL CODE. DECREE 7.648/82 AND LAW 9.537/97. LAWFUL DUTY. HABEAS CORPUS CONCEDED. - BRAZILIAN JURSIDICTION PREVAILS OVER FOREIGN CARGO VESSELS IN PASSAGE TOWARDS A BRAZILIAN PORT ON ACCOUNT OF ACTS PERFORMED BY THE MASTER OF THE VESSEL. - BRAZILIAN LAW, ART. 498 OF THE COMERCIAL CODE, ARTICLES 143, III AND 146 OF DECREE 87.648/82 AND ARTICLE 1 P. 2 AND ARTICLE 10.III OF LAW 9537/97, ALLOW THE CAPTAIN OF THE SHIP TO DETERMINE THE DETENTION OF A PERSON WHEN NECESSARY TO MAINTAIN THE PHYSICAL INTEGRITY OF OTHERS, THE VESSEL AND THE CARGO. - THE DEFENDANT DEMONSTRATED CONCERN WITH THE CARE OF THE STOWAWAY. - DEMONSTRATED THAT THE DEFENDANT ACTED WITHIN THE LIMITS OF THE EXERCISE OF RIGHTS AND LAWFUL DUTY TO MAINTAIN ORDER AND SAFETY OF VESSEL UNDER HIS COMMAND. [...]. - HABEAS CORPUS GRANTED FOR THE DEFENDANT TO ANSWER IN LILBERTY. ALLOWED TO LEAVE THE COUNTRY DUE TO HIS PROFESSION AS A MASTER INFORMING PERMANENT ADDRESS AND UNDERTAKING TO APPEAR WHEN CALLED AND IF CRIMINAL ACTION INITIATED. (TRF5. HC: 200105000468508. Date:15/05/2002).
Case: Siete Oceanos (decision of the Federal Court of Appeal: granting habeas corpus)
Case: Chevron (07/11/2011)
http://www.theglobeandmail.com/report-on-business/international-business/latin-american-business/brazil-drops-criminal-oil-spill-charges-against-chevron-transocean-sources/article8899437/
Case “Chevron”:
Accusation of Oil Spill in the Campos Basin.
Case: “Chevron”
Oil spill occurred 07/11/2011, Campos Basin.
Estimated 120km² affected.
Case: “Chevron”
Accusation was against Chevron and some
employees, amongst which the president;
Crime: article 54 and § 2º, inc. V c/c art. 58,
inc. I and art. 68 of Law 9.605/98.
Case “Adamastos” (09/08/2014)
Case “Adamastos”:
Allegation that the crew was abandoned and possibly reduced to the condition
analogous of a slave.
Vessel abandoned by its owner;
Allegation, in the labor court suit, tha the crew was
in a condition similar to that of slaves;
In the Penal Code (article 149):
Case “Adamastos”
Case “Adamastos”
Art. 149. Subdue someone to a condition similar to slavery, either by submitting to forced labor or overworking, or by subjecting to degradent conditions of labor, or restricting, by any means, freedome of movement due to debt with the employer or its representative:
Penalty – Two to eight years incarceration and fine, as well as the penalty for violence.
§ 1o In the same penalty is included the person that:
I – hinders the use of any means of transport by the worker such as to maintain him at the workplace;
II – keeps an ostensive vigilance at the workplace or takes possession of personal documents or posessions of the laborer seeking to keep him at the workplace.
Case “FPSO CIDADE DE SÃO MATEUS” (11/02/2015)
http://gazetaonline.globo.com/_conteudo/2015/02/noticias/cidades/3889108-marinha-do-brasil-divulga-novas-imagens-do-fpso-sao-mateus.html
Case “FPSO Cidade de São Mateus”:
Explosion with seven dead.
Alleged leakage of gas in pump room which caused
explosion.
Federal Public Prosecutor investigating environmental
damages.
Federal Police open an inquiry to investigate alleged
homicide and arson.
Case “FPSO Cidade de São Mateus”
