the international investigations review
TRANSCRIPT
The InternationalInvestigations Review
TheInternationalInvestigations
Review
Law Business Research
Fifth Edition
Editor
Nicolas Bourtin
The InternationalInvestigations Review
The International Investigations ReviewReproduced with permission from Law Business Research Ltd.
This article was first published in The International Investigations Review - Edition 5(published in July 2015 – editor Nicolas Bourtin)
For further information please [email protected]
The International Investigations
Review
Fifth Edition
EditorNicolas Bourtin
Law Business Research Ltd
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The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book:
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ACKNOWLEDGEMENTS
Acknowledgements
ii
SIQUEIRA CASTRO ADVOGADOS
SOŁTYSIŃSKI KAWECKI & SZLĘZAK
STEPHENSON HARWOOD
STUDIO LEGALE PULITANÒ-ZANCHETTI
SULLIVAN & CROMWELL LLP
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iii
Editor’s Preface ..................................................................................................viiNicolas Bourtin
Chapter 1 ARGENTINA ............................................................................ 1Roberto Durrieu Figueroa and Federico de Achával
Chapter 2 AUSTRALIA ............................................................................ 11Elizabeth Avery and Peter Feros
Chapter 3 AUSTRIA ................................................................................. 46Norbert Wess, Bernhard Kispert and Dietmar Bachmann
Chapter 4 BRAZIL.................................................................................... 57João Daniel Rassi and Maria Tereza Grassi Novaes
Chapter 5 CANADA ................................................................................. 68Wendy Berman and Jonathan Wansbrough
Chapter 6 CHINA .................................................................................... 94Benjamin Miao, Peter Yuen and Melody Wang
Chapter 7 ENGLAND & WALES .......................................................... 108Tony Woodcock
Chapter 8 FRANCE ................................................................................ 120Antoine Kirry and Frederick T Davis
Chapter 9 GERMANY ............................................................................ 137Hans-Peter Huber, Leila Louisa Ait-Bouziad and Anna Oehmichen
CONTENTS
iv
Contents
Chapter 10 GREECE ................................................................................ 149Ilias G Anagnostopoulos and Jerina (Gerasimoula) Zapanti
Chapter 11 HONG KONG ...................................................................... 157Peter Yuen
Chapter 12 IRELAND .............................................................................. 173Bríd Munnelly, Nicola Dunleavy, Carina Lawlor and Michael Byrne
Chapter 13 ITALY ..................................................................................... 186Mario Zanchetti
Chapter 14 JERSEY .................................................................................. 199Philip Sinel and Helen Hatton
Chapter 15 NETHERLANDS .................................................................. 210Joost Italianer and Paul Olden
Chapter 16 NIGERIA ............................................................................... 219Babatunde Fagbohunlu, Imaobong Haastrup, Rebecca Dokun and Joshua Abe
Chapter 17 POLAND ............................................................................... 233Tomasz Konopka
Chapter 18 PORTUGAL .......................................................................... 243José Lobo Moutinho, Teresa Serra and Raul Taborda
Chapter 19 SINGAPORE ......................................................................... 254Joy Tan and Koh Swee Yen
Chapter 20 SPAIN .................................................................................... 286Mar de Pedraza and Cristina de Andrés
Chapter 21 SWEDEN .............................................................................. 300Ulf Djurberg and Mikael Rydkvist
v
Contents
Chapter 22 SWITZERLAND ................................................................... 308Daniel Lucien Bühr and Marc Henzelin
Chapter 23 TURKEY ................................................................................ 317Gönenç Gürkaynak and Olgu Kama
Chapter 24 UNITED STATES ................................................................. 327Nicolas Bourtin and Nathaniel Green
Appendix 1 ABOUT THE AUTHORS .................................................... 341
Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS .. 357
vii
EDITOR’S PREFACE
In the United States, it continues to be a rare day when newspaper headlines do not announce criminal or regulatory investigations or prosecutions of major financial institutions and other corporations. Foreign corruption. Financial fraud. Tax evasion. Price fixing. Manipulation of benchmark interest rates and foreign exchange trading. Export controls and other trade sanctions. US and non-US corporations alike, for the past several years, have faced increasing scrutiny from US authorities, and their conduct, when deemed to run afoul of the law, continues to be punished severely by ever-increasing, record-breaking fines and the prosecution of corporate employees. And while in past years many corporate criminal investigations were resolved through deferred or non-prosecution agreements, 2014 saw a significant increase in the number of guilty pleas sought and obtained by the US Department of Justice.
This trend has by no means been limited to the United States; while the US government continues to lead the movement to globalise the prosecution of corporations, a number of non-US authorities appear determined to adopt the US model. Parallel corporate investigations in multiple countries increasingly compound the problems for companies, as conflicting statutes, regulations and rules of procedure and evidence make the path to compliance a treacherous one. What is more, government authorities forge their own prosecutorial alliances and share evidence, further complicating a company’s defence. These trends show no sign of abating.
As a result, corporate counsel around the world are increasingly called upon to advise their clients on the implications of criminal and regulatory investigations outside their own jurisdictions. This can be a daunting task, as the practice of criminal law – particularly corporate criminal law – is notorious for following unwritten rules and practices that cannot be gleaned from a simple review of a country’s criminal code. And while nothing can replace the considered advice of an expert local practitioner, a comprehensive review of the corporate investigation practices around the world will find a wide and grateful readership.
The authors of this volume are acknowledged experts in the field of corporate investigations and leaders of the bars of their respective countries. We have attempted
Editor’s Preface
viii
to distil their wisdom, experience and insight around the most common questions and concerns that corporate counsel face in guiding their clients through criminal or regulatory investigations. Under what circumstances can the corporate entity itself be charged with a crime? What are the possible penalties? Under what circumstances should a corporation voluntarily self-report potential misconduct on the part of its employees? Is it a realistic option for a corporation to defend itself at trial against a government agency? And how does a corporation manage the delicate interactions with the employees whose conduct is at issue? The International Investigations Review answers these questions and many more and will serve as an indispensable guide when your clients face criminal or regulatory scrutiny in a country other than your own. And while it will not qualify you to practise criminal law in a foreign country, it will highlight the major issues and critical characteristics of a given country’s legal system and will serve as an invaluable aid in engaging, advising and directing local counsel in that jurisdiction. We are proud that, in its fifth edition, this volume covers 24 jurisdictions.
This volume is the product of exceptional collaboration. I wish to commend and thank our publisher and all the contributors for their extraordinary gift of time and thought. The subject matter is broad and the issues raised deep, and a concise synthesis of a country’s legal framework and practice was in each case challenging.
Nicolas BourtinSullivan & Cromwell LLPNew YorkJuly 2015
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Chapter 4
BRAZIL
João Daniel Rassi and Maria Tereza Grassi Novaes1
I INTRODUCTION
In Brazil, investigation of the authorship and materiality of crimes committed within or by companies (in the case of environmental crimes) is carried out by the state civil police forces2 or the Federal Police. They have the powers to gather evidence for police inquiries, and to conduct the administrative proceedings under their responsibility. There is also the possibility, although this is controversial, of investigation by public prosecution services (state and federal), through a separate procedure.3 In any event, the judgment of guilt or innocence rests with the courts, through due process of law, in service to the principle of the natural judge.4
Companies and their employees and executives can also be investigated by other bodies, such as parliamentary investigating committees (at the local, state and federal levels), which have subpoena powers, and by audit tribunals (again at the local, state and federal levels), which are empowered to investigate wrongdoing within the public administration.
1 João Daniel Rassi is a partner and Maria Tereza Grassi Novaes is an associate at Siqueira Castro Advogados.
2 Law enforcement at the state level is divided between the civil police (polícia civil), the investigative force, and the military police (polícia militar, not to be confused with the police forces of the armed services), the uniformed constabulary. Many cities also have a uniformed municipal guard force, generally unarmed, to enforce local laws such as illegal street peddling, and for traffic/crowd control.
3 The investigations of the prosecution services are called ‘Criminal Investigation Procedures’ (Procedimentos de Investigação Criminal, or PICs).
4 Article 5, XXXVII and LIII, of the Federal Constitution.
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Finally, the responsibility for investigating civil and administrative liability for acts of corruption against the public administration rests with the highest authority of the aggrieved entity, by opening a preliminary investigation, and subsequently, based on the evidence found, an administrative liability proceeding (PAR), to judge the company for the injurious practice.5 A finding of guilt is always subject to judicial review.
Private agencies and investigators, even though authorised to operate in Brazil, do not have special powers of investigation (e.g., to force people to give testimony or produce evidence), but they can collect evidence to the extent that this does not violate any rights of the targeted individuals, such as intimacy, freedom of movement and property.
Private investigative activity, duly conducted, is not incompatible with the efforts of the public prosecution services, which have the exclusive right to press criminal charges or to police activity. There can be cooperation, by which evidence discovered through private efforts can be submitted to the authorities, as long as the evidence was obtained within the confines of the law. In this sense, a company can cooperate with the authorities by providing evidence gathered in an internal investigation, as long as the individual rights of those investigated were respected.
II CONDUCT
i Self-reporting
As a rule, private companies are not required to report irregularities committed by their employees to the authorities .6 However, the Money Laundering Law (Law 9,613/98)7 contains a list of individuals and legal entities engaged in business activity that are required to communicate to the Council for Control of Financial Activity (COAF), within 24 hours, all transactions suspected of involving laundering (Article 11.II.b). In general, the parties with this obligation are individuals and legal entities that – either permanently or occasionally, principally or secondarily – engage in activities connected to the following markets: a finance; b real estate; c luxury goods; d sports or arts; e transport of valuables; and f livestock breeding.8
5 Article 4 of Decree 8.420/2015, which regulates the Anticorruption Law.6 The situation is different in the public sector, where the duty to report suspected criminal
behavior applies to federal civil servants, as per Law 8.112/90. 7 The law covers crimes of money laundering, concealment of assets and use of the financial
system for commission of crimes, and created the Council for Control of Financial Activities (COAF), among other things.
8 The list, which is comprehensive, can be found in Article 9 of Law 9.613/98.
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The Money Laundering Law does not contain any provisions for benefits for those who comply with their reporting duties, while administrative penalties apply to those who fail in these duties, as specified in its Article 12.9 There is also the possibility of facing criminal charges for complicity in money laundering.10
However, those accused of money laundering can obtain leniency by spontaneously collaborating with the authorities, providing information on the crime, identifying the other perpetrators, etc. This benefit can mean a shorter jail term (or less severe conditions, e.g., minimum security prison or authorisation to work during the daytime), or being sentenced to probation instead.11
Other laws besides that on money laundering allow leniency, called ‘rewarded denunciation’.12 Besides this, in Brazil any individual accused of engaging in organised crimes can collaborate with the authorities in return for a lighter sentence or other benefits (Articles 4–7 of Law 12,850/13).
In the area of antitrust law, cartel formation is both an administrative13 and criminal14 offense. Although there is no obligation to report such behaviour by individuals or companies, both can be eligible for benefits from cooperation, in the criminal sphere (individuals only) or administrative sphere, under the leniency programme established in Article 86 of Law 12,529/11. That programme is made operational by signing a consent decree between the member of the cartel or individuals involved in its operation and the Administrative Council for Economic Defence (CADE), the antitrust agency, in return for cooperation in identifying and producing evidence against the other participants. In exchange, the beneficiary (company or individual)15 receives a lighter penalty or none at all, also subject to refraining from committing similar acts in restraint of competition during a specified future period.
With respect to the criminal sphere, Article 87 of Law 12,529/11 establishes that the consent decree prevents pressing charges against the individual signatories, but suspends the running of the time-bar of crimes against the economic system (Article 4 of Law 12,529/11) and related crimes, such as fraud in public tenders (Article 90 of Law 8,666/93) and criminal conspiracy (Article 288 of the Penal Code). Upon compliance
9 Among the penalties established in the law are: (1) warning; (2) fine; (3) temporary ineligibility to hold management positions; and (4) cancellation or suspension of authorisation to engage in activity, operation or functioning.
10 As in some other countries, the theme of criminal liability for omission is polemical in Brazil, especially in respect to compliance officers.
11 Article 1, Section 5 of Law 9.613/98.12 Rewarded denunciation is also applicable to the crimes committed against the national
financial system (Law 7.492/86, Article 25, Section 2), tax crimes (Law 8,137/90, Article 16), drug trafficking (Law 11.343/06, Article 41) and kidnapping (Penal Code, Article 159, Section 4).
13 Law 12,529/11.14 Article 4 of Law 8,137/90.15 The requirements pertaining to companies are described in Article 86, Section 1, and those
applicable to individuals are set out in Article 86, Section 2, of the Law 12,529/11.
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with the obligations assumed in the consent decree, the competent criminal judge will declare that the person is not eligible for punishment (Article 87 of Law 12,529/11).
Finally, Article 86, Section 7 of Law 12,529/11 contains the concept of special leniency accords applicable to individuals or companies that do not meet the requirements for signing a traditional leniency accord, provided that before an administrative proceeding is commenced by CADE, they report elements that reveal the existence of another cartel, not yet known, in which case they can receive a reduction of up to one-third of the applicable administrative penalty. However, in these cases, although it is possible to argue that the collaboration should have repercussions by mitigating the criminal penalty, there is no formal connection between the administrative special leniency accords benefit and being liable for punishment in the criminal sphere.
ii Internal investigations
Companies that receive denunciations or suspect irregular acts committed by their employees can conduct their own internal investigations to identify the behaviour and apply penalties to those found responsible.16 They can also engage external advisors or audit firms to conduct such investigations. As a rule, the investigation should involve as few people as possible, to protect the person making the accusation, the accused individual or individuals and to preserve the investigation itself. For this purpose, all those involved are typically asked to sign a confidentiality undertaking.17
In investigations of this nature, various types of evidence can be obtained, such as audit reports, spreadsheets, institutional emails, transcripts of interviews, etc. In all cases, the rights of the suspect must be respected.18 The suspect is entitled to retain a lawyer to accompany interviews, and while there is no legal requirement, the lawyer can be allowed to see internal documents on the investigation related to the client.
Institutional emails can be obtained without any major problems, provided the employer has expressly informed the employees that their corporate computers, mobile devices and internal email accounts are to be used exclusively for company business and all the information in them belongs to the company, so that the company can inspect them at any time.19 In such cases, there is no way that employees can claim violation of secrecy or privacy, since they have been notified of the company’s rules and this is a condition of their employment.
16 Manual de Compliance: preservando a boa governança e a integridade das organizações. Marcelo de Aguiar Coimbra, Vanessa Alessi Manzi Binder, org. São Paulo: Atlas, 2010, pp. 98-101.
17 Ibid, pp. 98-101.18 The interview, for example, should be conducted with clear and objective questions, without
any prejudgment, to mitigate the risks of possible labour suits with claims for moral damages (mental anguish/harm to reputation). Note in this respect that Brazil has a separate federal system of labour courts.
19 The best policy is both to specify the rule in the code of conduct and to require all employees to sign a consent form when hired.
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At the end of the investigation, a report should be prepared describing the case and the findings regarding the alleged irregularities and respective authors, proposed solutions and recommendations to the compliance area, besides any penalties applied.20
It is not mandatory to share the results of the investigation with governmental authorities, unless there is a court order in this respect (e.g., a search and seizure warrant). If the court order calls for presentation of documents, failure to comply will subject the company to the penalties for contempt of court (though this does not allow jailing of individuals by court order). However, some legal scholars argue, and some court decisions have accepted, that this does not apply to delivery of information that in some way could compromise the company.
Finally, attorney-client privilege applies, since this is established in the law and in the rules of the Brazilian Bar Association. However, since this is a disposable right, this secrecy can be waived by the client, such as if the accused person wants to benefit from collaboration with the company. In these situations, it is a good idea for the individual to be represented by counsel to prevent possible future allegations of coercion or abusive exercise of rights.
iii Whistle-blowers
A whistle-blower, by definition, is an individual who denounces a fact that is perceived to be illegal or improper within the company or public agency for which he or she works, without being involved in the allegedly criminal conduct.21
In this respect, the recently issued Decree 8,420/2014 requires organisations to create internal channels to enable denunciation of irregularities and mechanisms to protect the accusers, provided they act in good faith (Article 42, X).
However, despite the wording of the Decree, the Brazilian legal system does not provide any specific protection, guarantees or incentives to whistle-blowers.22 On the other hand, there are also no provisions on administrative penalties or punishments for those that make denunciations in bad faith or that are knowingly false.23 There also
20 Depending on the gravity of the act, the employee can be dismissed with or without cause, under the situations described in Article 482 of the Consolidated Labour Law (Decree-Law 5,452/43).
21 Whistleblowers should be differentiated from those who in some way have participated in or contributed to the crime and decide to cooperate with the authorities in return for leniency, as in the case of rewarded collaboration (Vicente Greco Filho. Comentários à Law de Organização Criminosa. São Paulo: Saraiva, 2014).
22 Débora Motta Cardoso. A extensão do compliance no Direito Penal: análise crítica na perspectiva da Lei de Lavagem de Dinheiro, Faculdade de Direito USP: São Paulo, 2013, p. 66.
23 On this aspect, the Brazilian Penal Code, in Articles 138–140, defines the crimes of calumny (falsely accusing someone of a criminal offence), defamation (harming someone’s reputation by false accusations) and libel or slander (offending someone’s dignity or decorum with false claims). These crimes are subject to private penal action prosecuted by the offended party (as opposed to public penal actions, in which the plaintiff is the people, represented by the public prosecutor).
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are no specific rules on anonymous denunciation of irregularities. Furthermore, if a whistle-blower feels harmed by using the denunciation channel, such as dismissal or mental harassment, he or she can file a labour suit against the company.24
The situation is somewhat different with respect to federal civil servants. Article 126-A of Law 8,112/90, which covers the legal regime applicable to federal civil servants and employees of independent agencies and foundations, contains, albeit timid, protection for whistle-blowers, by ruling out civil, criminal or administrative liability of anyone who reports to a superior or the competent authority the commission of any crime or act of misconduct, unless there is bad faith, in which case the whistle-blower can be accused of slander.25
III ENFORCEMENT
i Corporate liability
Companies can be held civilly liable for the acts of their employees in three situations, two general and one specific: a by reason of culpa in eligendo (poor choice of those entrusted with performance of
obligations); b by reason of culpa in vigilando (insufficient oversight of the performance of
obligations); and c when an employee commits and act injurious to the public administration, in
Brazil or abroad.
The foundation for the first two hypotheses is provided by Article 932, III, of the Civil Code and Súmula26 341 from the Federal Supreme Court (STF).27 The ground for the third, in turn, is provided by the recently enacted Anticorruption Law (Law 12,846/13), which contains provisions on strict civil and administrative liability for acts that are injurious to the national or foreign public administration.28 The liability of the company does not exclude the personal liability of the individuals involved in the acts and subsists independently of this liability.29
By contrast, in the criminal sphere companies can only be held liable for environmental crimes, regardless of the individual responsibility of their agents. Article
24 In these cases, labour legislation allows indirect termination of the labour contract in the cases listed in Article 483 of the Consolidated Labour Law (Decree-Law 5,452/43). Employees can also file suits for moral damages against acts of the employer, according to Articles 186 and 927 of the Civil Code.
25 Article 339 of the Penal Code.26 A súmula is a statement of consolidated position, or jurisprudence constante, from a higher
court. 27 The culpability of the employer or principal for the acts of the employee or agent is
presumed.’28 The list of injurious acts is contained in Article 5 of Law 12,846/13.29 Article 3, Section 1 of Law 12,846/13.
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3 of the Environmental Crimes Law (Law 9,605/98) establishes that companies shall be held criminally liable in cases of environmental infractions committed ‘by decision of their legal or contractual representative, or collegiate body, in the interest or benefit of the entity.’
Finally, there is no legal impediment for the company and employees to be represented by the same lawyer, in administrative or criminal proceedings. This will depend on the situation, namely the possible existence of a conflict of interest.
ii Penalties
The possible penalties will depend first of all on the category of culpability, among those defined above. For situations of culpa in vigilando or culpa in eligendo, the company will be liable in proportion to the loss caused. In relation to practices injurious to a national or foreign governmental entity, according to Article 19 of the Anticorruption Law the company can be subject to the following penalties: a seizure or forfeiture of money, rights or other assets gained directly or indirectly
from the infraction, with reservation made for the rights of injured parties or third parties that acted in good faith;
b partial suspension or interdiction of activities; c prohibition to receive incentives, subsidies, donations or loans from governmental
entities or official financial institutions, for a period of from one to five years; or d compulsory dissolution, when the company is found to have habitually facilitated
or engaged in illegal acts or was incorporated to conceal illicit interests or the identity of the beneficial owners.
According to Articles 21–24 of Law 9,605/98, the penalties applicable to companies for environmental crimes are: a fines; b partial or total suspension of activity; c temporary interdiction of an establishment, project or activity; d prohibition to contract with governmental entities or obtain subsidies or
donations from them; e payment for environmental programmes of projects; f reclamation of degraded areas; g maintenance of public spaces; h contributions to public environmental or cultural entities; or i forced liquidation, with the assets realised being transferred to the National
Penitentiary Fund.
iii Compliance programmes
The Environmental Crimes Law does not establish any softening of penalties for companies that have compliance or integrity programmes. Rather, it establishes that the penalty must be set in light of the gravity of the infraction, its motives and the consequences for public health and the environment, as well as the antecedents regarding
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compliance with environmental laws or regulations, and the economic situation of the company.30
The situation is different regarding civil and administrative liability for acts injurious to national or foreign governmental entities. The Anti-corruption Law specifies that in applying penalties, consideration must go to:
the existence of internal mechanisms and procedures for integrity, auditing and incentive to denunciation of irregularities and effective application of codes of ethics and conduct within the company.31
Decree 8,420/15 also contains parameters by which programmes of this nature will be evaluated, serving to guide organisations when creating or reviewing compliance programmes.32
Therefore, the existence of compliance programmes must be taken into consideration when imposing administrative or civil penalties for acts deemed injurious to the public administration, by express provision of the Anti-corruption Law. In the environmental sphere, there is no such provision, but this does not preclude consideration in this respect by the judge when imposing punishment.33
iv Prosecution of individuals
Besides the prosecution of individuals for administrative, civil or criminal liability as discussed above, the company can dismiss the person from their job.34 On the other hand, the company can, if there is no conflict of interest, help defend the person, by presenting documents, depositions, etc. Indeed, it is common for companies to pay the legal costs of this defence, depending on the existence of a conflict of interest.
IV INTERNATIONAL
i Extraterritorial jurisdiction
Brazil’s Antitrust Law (Law 12,259/11) applies to the conduct of individuals and companies outside the country in cases when:
30 Article 6 of Law 9,605/98.31 Article 7, VIII, of Law 12,846/13.32 Article 42 of Decree 8,420/15.33 In this respect, the Environmental Crimes Law allows reduction of penalties for ‘prior
communication to the agent regarding the imminent risk of environmental degradation,’ as well as for ‘collaboration with agents entrusted with environmental vigilance and control,’ circumstances that can be interpreted as resulting from the existence of a compliance programme.
34 The jurisprudence from the labour courts takes the position that an employee can only be discharged for cause due to commission of a crime after a final guilty verdict. However, the company can fire employees for cause based on other grounds, such as malpractice or administrative improbity, which are not crimes.
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a the conduct is illegal according to the Law; or b the practice produces or might produce effects in Brazil.35 In this instance, the
possibility of extraterritorial application of Brazilian law requires that the potential injury caused by the conduct be real and effective, not just hypothetical, or there will be no configuration of a crime.36
Likewise, the Anti-corruption Law allows applying civil and administrative penalties to Brazilian individuals or companies that commit crimes against foreign governmental entities, even if committed abroad.37
In the criminal sphere, the rule in Brazil, as in many other countries, is of territoriality, by which Brazilian criminal laws only apply to acts committed in the country. There are some exceptions to this rule, allowing extraterritorial application to individuals.38 However, the application to companies is clouded, because the extraterritoriality rule was established at a time when the liability of companies for corrupt practices was not set forth in the legal system.
ii International cooperation
The Brazilian government can cooperate with application of the law of other countries by means of passive international legal cooperation, which consists of the practise of national public acts that are instrumental to the functioning of foreign jurisdiction. This cooperation exists in three modalities: direct (direct and immediate contact between the authorities of the two countries); indirect (through an intermediary for processing of requests); and direct assistance (postulation, through an intermediary, of a national decision in benefit of the requesting state, in substitution of it).
The countries that cooperate with each other generally have treaties in this sense.39 However, the absence of such a bilateral accord does not preclude cooperation of the Brazilian government with foreign governments. In these cases, the solicitation must be sent to the Superior Tribunal of Justice via letter rogatory, and if the matter is not a decision act, it will be sent to the Ministry of Justice for the necessary steps to provide the direct assistance.40
35 Article 2 of Law 12,259/11.36 Gesner Oliveira, João Grandino Rodas, Direito e Economia da Concorrência, Rio de Janeiro:
Renovar, 2004, pp. 381 and 382.37 Article 28 of Law 12,846/13. See in this respect Vicente Greco Filho, João Daniel Rassi. O
combate à corrupção e comentários à lei de responsabilidade de pessoas jurídicas (Lei n. 12.846, de 108-2013). São Paulo: Saraiva, 2015, forthcoming.
38 Article 7 of the Penal Code.39 Such as the bilateral and multilateral accords on mutual assistance in criminal matters listed
at the website of the Federal Prosecution Service (Ministério Público Federal): http://www.internacional.mpf.mp.br/normas-e-legislacao/tratados/tratados-de-mutual-legal-assistance-auxilio-juridico-mutuo-em-materia-penal.
40 Antonio Scarance Fernandes e Marcos Alexandre Coelho Zili, coord, Direito Processual Penal Internacional. São Paulo: Atlas, 2013, pg. 365. On the matter of direct assistance,
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Extradition is common in Brazil, and is regulated by the Foreigner Statute (Law 6,815/80), Decree 86,715/81, and Article 22, XV, of the Federal Constitution. For extradition to be granted, it is necessary for certain conditions to be satisfied, among them:a that the act be considered a crime in Brazil and in the requesting state;b that the prospective person to be extradited be a foreigner; andc the existence of a treaty or convention signed with Brazil, or if none exists, a
promise of reciprocity by the foreign government.
The Federal Supreme Court has original jurisdiction over extradition requests, according to Article 102.I.g of the Federal Constitution, so its final decision is not subject to appeal.41
iii Local law considerations
As stated previously, Brazil adopts the principle of territoriality as a rule for application of criminal law, both substantive and procedural, although there are exceptional situations where local law can be applied to crimes committed by Brazilians abroad. Therefore, if the Brazilian justice system has competence to judge a certain crime even though committed abroad, the procedural rules applied will be those of the Brazilian Criminal Procedure Code.
Likewise, if another state is competent to judge a crime committed by a Brazilian national, its own procedural rules will apply, even if they are in conflict with Brazilian guarantees. On this point, international treaties and conventions on human rights come to the fore, which establish protection and guarantee of the rights of individuals facing prosecution in another signatory state.42
Hence, for example, personal and banking data are protected by secrecy and may only be disclosed by court order judicial,43 pursuant to the constitutional principle of
Heloísa Estellita states that unlike the procedure for letters rogatory established in Resolution 09/2005 from the STJ, it ‘does not put the affected person as a subject of the cooperation and does not offer the guarantees regarding observance and respect for his fundamental rights to defence, rebuttal and inadmissibility of illegally obtained evidence.’ In: Renato Jorge Mello da Silveira and João Daniel Rassi coord, Cooperação internacional penal passiva e garantias processuais do afetado. Estudos em homenagem a Vicente Greco Filho. São Paulo: LiberArs, 2014 p.195.
41 On the theme, see the publication (in Portuguese) by the Federal Supreme Court at the following link: http://www.stf.jus.br/arquivo/cms/bibliotecaConsultaProdutoBibliotecaBibliografia/anexo/extradicao_nov2009.pdf.
42 See in this respect the American Convention on Human Rights (Decree 678/92) and the International Covenant on Civil and Political Rights (Decree 592/92).
43 Some argue that a court order is not necessary to obtain basic listing information such as name, address and telephone number, only a command from a police authority.
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intimacy and private life (Article 5, X, Constitution). If any such information is obtained illegally, it will not be admissible in court.44
V YEAR IN REVIEW
Two legislative innovations can be mentioned as current themes in Brazil: a the Anticorruption Law and its regulatory decree; and b the mechanism of rewarded collaboration and its evidentiary value, as set out in
the Organised Crime Law.
Although both these laws were enacted in 2013, their practical effects are still at the incipient stage, with legal scholars expressing various positions and few court decisions addressing controversial issues.
The first, Law 12,846/13, covers the administrative and civil liability of companies (and also the criminal liability of individuals) for acts against domestic or foreign governmental entities. It has increased the relevance of compliance mechanisms in determining the penalties applied to companies for the crimes covered by it.45
In the second case, the new rules on rewarded collaboration contained in Law 12,850/13 are controversial, since plea bargaining, as exists in many other countries, has traditionally not been accepted in Brazil.
VI CONCLUSIONS AND OUTLOOK
Based on the above, the following main conclusions can be extracted. Private investigation in Brazil, although considered legal, does not have any
regulations, which limits the evidentiary value of any information discovered, and hence the possible collaboration of companies with the competent authorities.
On the matter of whistle-blowers, there is legal protection only in the case of federal officials. There is no reason not to give equal legal treatment to all whistle-blowers, by analogy with that afforded to federal civil servants.
Since the Anticorruption Law is recent, the applicability and materialisation of the compliance programmes to which it refers are not clear, especially for small and midsize companies, which are larger in number in Brazil.
In conclusion, in line with the international trend, there is a twin movement in Brazil, on the one hand for the law to demand more from companies in fighting corruption, transferring investigative obligations to them, and on the other for companies to assume a more active role in this respect, in service to transparency and good corporate citizenship, which are increasingly valued by the market.
44 Article 157 of the Criminal Procedure Code and Article 5, LVI, of the Federal Constitution.45 Article 7 of Law 12,846/13.
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Appendix 1
ABOUT THE AUTHORS
JOÃO DANIEL RASSISiqueira Castro AdvogadosJoão Daniel Rassi is a partner in the criminal sector of Siqueira Castro Advogados. He specialised in Criminal Law at the Salamanca University (USAL), Spain, received a Master of Criminal Law from the University of São Paulo (USP) and received a Doctor of Criminal Law from the University of São Paulo (USP) Law School. He was also elected by Análise Advocacia as one of the most respected lawyers in Brazil in the area of criminal law.
MARIA TEREZA GRASSI NOVAESSiqueira Castro AdvogadosMaria Tereza Grassi Novaes is an associate in the criminal sector of Siqueira Castro Advogados. She specialised in Economic Criminal Law at Fundação Getúlio Vargas São Paulo (FGV-SP) and was elected as one of the most remarkable women in the investigative profession from around the world by Global Investigations Review magazine.
SIQUEIRA CASTRO ADVOGADOSTabapuã Street, No. 81, 4th floorItaim Bibi 04533-010São PauloBrazilTel: +55 11 3704 9840Fax: +55 11 3704 9848 [email protected]@siqueiracastro.com.brwww.siqueiracastro.com.br/