Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 197º CPP – Value of confession.

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Art. 197. The value of the confession will be assessed by the criteria adopted for the other elements of evidence, and for its appreciation the judge must confront it with the other evidence of the process, verifying whether there is compatibility or agreement between it and these.

Defendant who confesses. Probative value and implications related to the co-defendant

Confession in the inquiry:  There is jurisprudential understanding, including that of the STF, that the confession made in the inquiry, when confirmed by other evidence in the process, has value. In our opinion, if the evidence produced in the process does not have enough probative value for the conviction, the confession made in the inquiry has no value.

Co-defendant who confesses:  Considering the possibility of the co-defendant confessing to the crime, compromising the defendant’s version, the defendant’s lawyer must attend the deposition, and may even propose questions.

Confession does not necessarily imply conviction:  Confession, even made in court, isolated from other evidence, does not authorize conviction. It must be consistent with other evidence produced.

Doctrine

Rogerio Schietti Cruz:  The queen of races

Jurisprudence

Offense to the principle of non-self-incrimination. Complaint based solely on a confession made by a person heard as a witness:  It offends the principle of non-self-incrimination. regarding the right to remain silent ( RHC 122.279/RJ, rel. Min. Gilmar Mendes, judged on 8/12/2014, judgment published in the DJE of 10/30/2014  – Newsletter 754, Second Panel).

Mitigating, amount of confession, plea bargain and non-prosecution agreement

Mitigating circumstance: Article 65 of the Penal Code  provides  :  Circumstances  that always mitigate the penalty: (…) III – the perpetrator: (…) d) confessed spontaneously, before the authority, the authorship of the crime .

Criterion adopted to assess the value of the confession:  The value of the confession will be assessed by the criterion adopted for the other elements of evidence, that is, free conviction, which is set out in  article 155 :  The judge will form his conviction by freely assessing the evidence produced in a judicial dispute  (…).

Proving value of the award-winning award: Award-winning   collaboration is an understatement. There is no willingness on the part of the whistleblower to collaborate, just to get rid of penalties. The presumption of falsehood applies to all the delation, since, in addition to starting with a confessed criminal, it aims to escape criminal sanctions. Until proven otherwise, all content of the delation is a set of lies. The whistleblower is not someone who has regretted the crimes committed and who wants to redeem himself by collaborating with justice. His testimony is not reliable, on the contrary, it is suspect. The criminal is, in a way, a traitor to social values. The informer is a double traitor. He betrays society and betrays his cronies. Calling the whistleblower a collaboratorit is wanting, by transverse routes, to lend credibility to those who do not have it. Conviction cannot be based on denunciation. This is what is provided for in  paragraph 16, article 4, of Law 12.850/2013: “No condemnatory sentence will be handed down based solely on the statements of a collaborating agent”. Delations do not prove anything, given the interest of the whistleblower in getting rid of punishment. Delations serve, yes, to pursue and reach the true proof. If the denunciation does not lead to proof, it has gone nowhere. The whistleblower’s testimony is worth less than that of a ten-year-old child. At least the child’s, though magnetized by fantasy, is not vitiated by interest. It’s worth less than the testimony of a witness bought with cash. It is because the price that the accuser pays for the denunciation (freedom) is much more valuable than that received by bribed witnesses. And the buyer is not interested in any delation. She needs to be useful. The snitch invents whatever is necessary to close the deal. Yes. It’s a negotiation. It’s testimonial buying. The informer – who in principle is already someone devoid of character – says, to get rid of prison or reduce his sentence, whatever the investigator wants. It is not difficult for the whistleblower to find out exactly what the investigator wants. It is relatively easy to forge evidence to enhance your denunciation. Do not naively assume that the investigator/prosecutor will be concerned about clarifying whether there was evidential fraud. Not exactly in bad faith, but for reasons related to the psychic conditioning of the accuser. The investigator is biased. The thesis that the prosecutor is impartial does not take off from the pages of law books. It is a legal fiction, in other words, a lie (on the MP’s partiality, see subheading to get out of prison or reduce your sentence, whatever the investigator wishes. It is not difficult for the whistleblower to find out exactly what the investigator wants. It is relatively easy to forge evidence to enhance your denunciation. Do not naively assume that the investigator/prosecutor will be concerned about clarifying whether there was evidential fraud. Not exactly in bad faith, but for reasons related to the psychic conditioning of the accuser. The investigator is biased. The thesis that the prosecutor is impartial does not take off from the pages of law books. It is a legal fiction, in other words, a lie (on the MP’s partiality, see subheading to get out of prison or reduce your sentence, whatever the investigator wishes. It is not difficult for the whistleblower to find out exactly what the investigator wants. It is relatively easy to forge evidence to enhance your denunciation. Do not naively assume that the investigator/prosecutor will be concerned about clarifying whether there was evidential fraud. Not exactly in bad faith, but for reasons related to the psychic conditioning of the accuser. The investigator is biased. The thesis that the prosecutor is impartial does not take off from the pages of law books. It is a legal fiction, in other words, a lie (on the MP’s partiality, see subheading Do not naively assume that the investigator/prosecutor will be concerned about clarifying whether there was evidential fraud. Not exactly in bad faith, but for reasons related to the psychic conditioning of the accuser. The investigator is biased. The thesis that the prosecutor is impartial does not take off from the pages of law books. It is a legal fiction, in other words, a lie (on the MP’s partiality, see subheading Do not naively assume that the investigator/prosecutor will be concerned about clarifying whether there was evidential fraud. Not exactly in bad faith, but for reasons related to the psychic conditioning of the accuser. The investigator is biased. The thesis that the prosecutor is impartial does not take off from the pages of law books. It is a legal fiction, in other words, a lie (on the MP’s partiality, see subheading Public ministry. Part or fiscal of law?  in title Part or tax of the law?, in annotations to article 257). Being partial, he only hears, or manages to hear, from the whistleblower what he wants to hear. The devaluation of his testimony is in no way altered by being questioned again during the contradictory instruction, since, if he goes back on the terms of his delation, the benefit he had agreed upon falls to the ground. Prosecutors often say that the whistleblower is not illegally coerced. Correct. And so much the worse. There is still a remedy against illegal coercion. Against the law, there is no solution. And for those who suffer it, it doesn’t make the slightest difference whether legal or illegal. It is not illegally endangered. However, it is under threat, and very serious threat many times. Trusting the word of the informer is trusting the testimony of the one who is on the scaffold and who offers to remove the noose from his neck so that he can indicate his accomplices and evidence against them. If necessary, he will invent names and evidence. He will say exactly that and he will betray exactly the one that coincides with the executioner’s desire. The whistleblower’s testimony is worth, as it proves, nothing, that nothing. Yes, the evidence that this testimony leads to is worth it. If you take. With regard to the sentence, if condemnatory based exclusively on bought testimonies (delations), one cannot go so far as to say that it is a sold sentence. It is not. But it is a decision that is placed on the same level as the accusation, equaling it in value. A regrettable judicial production. if condemnatory on the sole basis of purchased testimonies (delations), one cannot go so far as to say that it is a sold sentence. It is not. But it is a decision that is placed on the same level as the accusation, equaling it in value. A regrettable judicial production. if condemnatory on the sole basis of purchased testimonies (delations), one cannot go so far as to say that it is a sold sentence. It is not. But it is a decision that is placed on the same level as the accusation, equaling it in value. A regrettable judicial production.

Formal and detailed confession: The investigated person, as a mandatory condition of the agreement, must, in the letter of the law, formally and circumstantially confess to the commission of a criminal offense. The confession made at the police stage is worthless for the purposes of agreement. On this topic, see the subtitle Formal and detailed confession in the title Acronyms. Conditions. Minimum penalty. Just cause. Confession. Prohibitive causes in comments to article 28-A.

Jurisprudence – Denunciation. Proof

Compensation of the extenuating factor of spontaneous confession with the aggravating factor of recidivism. Resource. Repetitive (art. 543-c of the CPC and res. 8/2008-STJ):  It is possible, in the second phase of the dosimetry of the sentence, to compensate the mitigating factor of spontaneous confession with the aggravating factor of recidivism ( REsp 1,341,370, Rapporteur Justice Sebastião Reis Júnior, judged on 4/10/2013 – Newsletter No. 0522 ).

 Delation and informant’s testimony cannot be decisive for the conviction judgment published in the DJE of 10-30-2014  – Bulletin 743, Plenary).

Award-winning collaboration agreement does not constitute proof itself:  The award-winning collaboration agreement is a means of obtaining evidence2 intended for the acquisition of elements endowed with probative capacity. Therefore, it does not constitute means of proof itself ( HC 127.483, rel. Min. Dias Toffoli, judgment on 8/26 and 8/27/2015, judgment published in the DJE of 2/4/2016  – Newsletter 796, Plenary).

Award-winning collaboration agreement does not constitute proof itself:  The award-winning collaboration agreement is a means of obtaining evidence2 intended for the acquisition of elements endowed with probative capacity. Therefore, it does not constitute means of proof itself ( HC 127.483, rel. Min. Dias Toffoli, judgment on 8/26 and 8/27/2015, judgment published in the DJE of 2/4/2016  – Newsletter 796, Plenary).

Precedents

Precedent 545 of the STJ : When the confession is used to convince the judge, the defendant will be entitled to the extenuating factor provided for in art. 65, III, d, of the Penal Code ( Third Section, approved on 10/14/2015, DJe 10/19/2015 ).

Award-winning denunciation and various laws

Award-winning delation:  When the accused confesses to the crime and contributes to its clarification, pointing out co-authors, there is what is called award-winning delation. With it, the informer receives benefits ranging from reduced sentence to pardon (depending on the applicable law and the agreement). It is regulated by several laws:  Law 7.492/86, article 25, paragraph 2  (crimes against the financial system); Penal Code, article 159, paragraph 4  (extortion through kidnapping); Law 8.072/90, article 8, sole paragraph  (heinous crimes); Law 8.137/90, article 16, sole paragraph (crimes against the tax system); Law 9.613/98, article 1, paragraph 5  (crimes of money laundering); Law 9.807/99, articles 13 and 14  (applies to any crimes); Law 11.343/2006, article 41  (narcotics trafficking); Law 12.850/2013  (criminal organization).

Award-winning denunciation in any crimes:  Pursuant to  article 13 of Law n. 9,807/1999, in the case of denunciation, the benefits provided for therein apply to any and all crimes. This is what can be concluded from reading its provisions: “Art. 13. The judge may, ex officio or at the request of the parties, grant judicial pardon and the consequent extinction of punishment to the accused who, being primary, has effectively and voluntarily collaborated with the investigation and criminal proceedings, provided that this collaboration has resulted : I – the identification of the other co-authors or participants in the criminal action; II – the location of the victim with his physical integrity preserved; III – the total or partial recovery of the proceeds of the crime. Single paragraph. The granting of judicial pardon will take into account the personality of the beneficiary and the nature, circumstances, gravity and social repercussions of the criminal act”. Art. 14, in turn, stipulates that  the accused or accused person who voluntarily collaborates with the police investigation and the criminal process in identifying the other co-authors or participants in the crime, in locating the victim alive and in the total or partial recovery of the proceeds of the crime, in case of conviction, the sentence will be reduced by one to two thirds.

Whistleblower protection, re-interrogation, and whistleblowing effectiveness

Whistleblower protection:  Law  n. 9,807/1999  provides for the protection of accused or convicted persons who have voluntarily provided effective collaboration with the police investigation and criminal proceedings.

Denunciation and new interrogation:  In the case of a delation, and the defender of the accused co-defendant is not present, a new interrogation of the denouncer must be appointed, providing the opportunity for the defender of the denounced co-defendant to propose new questions.

Effective whistleblower:  For the whistleblower to be considered effective and to produce benefits in favor of the whistleblower, there must be a causal link between the information provided and the clarification of the crime.

Denunciation of the criminal organization law

Benefits and objectives of the whistleblower:  Bearing in mind that many of the crimes provided for in laws that provide for the awarding of the award are committed in conjunction with the crime of criminal organization, the law that deals with the criminal organization (the concept of criminal organization, which must have at least four people, is found in  article 1, paragraph 1 of Law No. 12,850/2013), since it also predicts the delation. Said law details the institute of award-winning delation in articles 3-A to 7. According to these provisions, the judge may, at the request of the parties, grant judicial pardon, reduce the custodial sentence by up to 2/3 (two thirds) or replace it with a restriction on the rights of the person who has effectively and voluntarily collaborated with the investigation and criminal proceedings, provided that this collaboration results in one or more of the following results: I – the identification of the other co-authors and participants in the criminal organization and the criminal offenses committed by them; II – disclosure of the hierarchical structure and division of tasks of the criminal organization; III – the prevention of criminal offenses resulting from the activities of the criminal organization; IV – the total or partial recovery of the product or profit from criminal offenses committed by the criminal organization; V – the location of any victim with his physical integrity preserved. 

Possibility of pardoning the informer:  Considering the relevance of the collaboration provided, the Public Ministry, at any time, and the police chief, in the police investigation records, with the statement of the Public Ministry, may request or represent the judge for the granting of pardon lawsuit to the employee, even if this benefit was not foreseen in the initial proposal.

Legitimacy to propose the agreement and homologation by the judge:  The judge will not participate in the negotiations carried out between the parties for the formalization of the collaboration agreement, which will take place between the police chief, the investigated person and the defender, with the manifestation of the Public Ministry, or , as the case may be, between the Public Prosecutor’s Office and the investigated or accused person and his lawyer. Once the agreement is reached, the respective term, accompanied by the collaborator’s statements and a copy of the investigation, will be sent to the judge for homologation, who must verify its regularity, legality and willingness, being able, for this purpose, to confidentially hear the collaborator, in the defender’s presence. The judge may refuse approval to the proposal that does not meet the legal requirements, or adapt it to the specific case. 

Denunciation and retraction:  After approval of the agreement, the employee may, always accompanied by his lawyer, be heard by the member of the Public Prosecutor’s Office or by the police chief responsible for the investigations. The parties may withdraw from the proposal, in which case the self-incriminating evidence produced by the collaborator cannot be used exclusively to his/her disadvantage. 

The judgment with the appreciation of the approved agreement:  The judgment will assess the terms of the approved agreement and its effectiveness. The term of agreement for the award-winning collaboration must be in writing and contain: I – the report of the collaboration and its possible results; II – the conditions of the proposal of the Public Prosecutor’s Office or the Chief of Police; III – the declaration of acceptance of the collaborator and his defender; IV – the signatures of the representative of the Public Prosecution Service or of the police chief, of the collaborator and of his defender; V – the specification of the protection measures for the employee and his family, when necessary.

Doctrine

Afrânio Silva Jardim:  Two texts against the undue and inconvenient importation of North American criminal procedural institutes.  Emporium of law.

Afrânio Silva Jardim:  The North American influence on Latin criminal procedural systems – by Afrânio Silva Jardim . Emporium of Law.

Andre Luis Callegari.  Plea bargaining agreement presupposes respect for the contract . Conjure

Andre Luis Callegari. How award-winning collaborations are born and how they die .  Conjure

André Luís Callegari Delations, omissions and isonomic behavior . Conjure  

Andre Luis Callegari. Never has the award-winning collaboration law been so debated in the courts .  Conjure

Andrea Marighetto. The fulfillment of the duty of good faith in the award-winning collaboration .  Conjure

Andrea Marighetto. Apology to the institution of the collaboration agreement and its termination .  Conjure

Andrea Marighetto. Pathological aspects of award-winning collaboration agreements .  Conjure

Aury Lopes Jr and Alexandre Morais da Rosa When the plea bargain works like a mud machine . Conjure  

Aury Lopes Jr. and Alexandre Morais da Rosa:  They regulated the “snitches” in the “country of the way” — and by law . Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa:  Will Lewandowski’s decision put an end to the “Brazilian-style whistleblowing” spree? Conjure

Aury Lopes Jr and Alexandre Morais da Rosa:  With award-winning delation and negotiated penalty, Criminal Law is also jet-washed . Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa:  Delation cannot be terminated unilaterally at the whim of the State . Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa:  Understand the non-approval of the delation by Minister Lewandowski (Pet. 7.256/DF) . Conjure

Aury Lopes Jr and Alexandre Morais da Rosa The pre-fixed sentence delation scene game . Conjure  

Aury Lopes Jr. and Alexandre Morais da Rosa and Gabriela Consolaro:  Can the president grant whistleblowers pardons through “grace”?  Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa and Philipe Benoni Melo e Silva:  The notion of a “golden parachute” must be included in the winning statements . Conjure

Brenno Grillo American judge points out differences between accusations in Brazil and in the USA . Conjure  

Carla Veríssimo de Carli:  Award-winning statement in Brazil: what exactly are we talking about?  Conjure

Cezar Roberto Bitencourt:  Award-winning delation is a legal but unethical favor . Conjure

Cezar Roberto Bitencourt :  The Federal Police has legitimacy to preside over a plea bargain . Conjure

Daniel Gerber:  Homologation of a plea agreement generates expectation of rights . Conjure

Francisco Sannini Neto and Henrique Hoffmann Prize-winning collaboration must have the participation of the judicial police . Conjure  

Guilherme Nucci:  Denunciation in criminal proceedings  Higher School of Police

Guilherme Nucci:  Are there any limits for awarding the award-winning collaboration ? Conjure Guilherme Nucci, with some questions, demonstrates that an institute regulated by criminal laws cannot be transformed into a private contract: “It even seems that we are dealing with Civil Law, taking care of merely private and available interests. (…) Are there limits to the award-winning collaboration agreement? Can the Public Ministry and the whistleblower sign proposals for the present and the future? Is it feasible to insert elements concerning civil issues into the award-winning collaboration term? Is it legally possible to sign clauses that will bind other judicial authorities (and MP members) that have nothing to do with the case? Anyway, can you ‘everything’ in the agreement? Does the approval of the judge, who must verify its legality, validate any and all clauses provided for in the term?(…)”.

Gustavo Badaró:  Limits of what was agreed upon in the Awarded Collaboration: can the Public Prosecutor’s Office fix penalties or grant pardon? Badaroadadvogados.

Gustavo Badaró:  The Probationary Value of the Winning Delation: on § 16 of art. 4 of Law No. 12.850/13 . Badaroadadvogados.

Hércules Fajoses Detractor or informer? On the threshold of “legally acceptable” . Conjure  

Jader Gustavo:  Application of the plea bargain in criminal prosecution under Law No. 12,850/2013 .  Badaroadadvogados.Study that aims to clarify details about the application of the post-criminal award institute of award-winning in the face of Law 12.850/2013, addressing its historical origin, as well as its application. ++

José Carlos Porciúncula:  Unconstitutionalities and dogmatic inconsistencies of the award-winning institute (art. 4 of Law 12.850/13) . porciuncula.net

José Luis Oliveira Lima:  Current challenges of award-winning whistleblowing . olimaadvogados.adv.br.

José Roberto Batochio:  The whistleblower has become a procedural copy of the whistleblower

José Roberto Batochio:   Delation should be the starting point, not the beginning, middle and end

José Roberto Batochio:  Award-winning delation should be avoided

José Roberto Batochio:  Interview about delation  –  video .

Luiz Flávio Borges D’Urso:  Interview with Luiz Flávio Borges D’Urso Award-winning award. Crumbs.  –  video.  

Márcio Adriano Anselmo:  Judiciary also plays the role of interpreter of the award-winning collaboration .  Conjure

Marlus Arns de Oliveira:  The role of a judge in the award-winning collaboration is not that of a simple homologator arnsdeoliveira.adv.br.

Marlus Arns de Oliveira:  The role of the lawyer in relation to award-winning collaboration.  arnsdeoliveira.adv.br  

Paulo Sérgio Leite Fernandes:  Romantic advocacy and the ethical dispute over award-winning collaboration .  Conjure

Sérgio Rodas:  “Car wash” deals are ostensibly illegal, says Canotilho . Conjure

Técio Lins e Silva:  Lecture. Técio Lins e Silva:  “I cannot live with this category of whistleblower lawyers” –  video.

Jurisprudence

Vladimir Aras, from the MPF:  “Award-winning collaboration is important to break the mafia silence pact” . Interview by Rodrigo Daniel Silva. Conjure Defender of the prize-giving institute, the regional attorney of the Republic, Vladimir Barros Aras, says that the correct name of the agreement is “prize-winning collaboration”. On his blog, he points out that the expression “award-winning whistleblowing” carries a “symbolic load of prejudice”. He also understands that the term is not capable of describing “the entire extension of the institute, which is not limited to mere delatio”. “It is not about stimulating “betrayal”, as certain commentators believe, but a tool of premium law, which is similar in other legal institutes”, he stresses, in an interview with the electronic magazine Consultor Jurídico, answered by email. Aras ensures that it is possible to combat criminal organizations without award-winning collaboration. But, Legal Consultant – CONJUR ).

It is constitutional for police chiefs to enter into rewarding collaboration agreements: The Plenary of the Federal Supreme Court, in the judgment of the Direct Action of Unconstitutionality (ADI) 5508, considered constitutional the possibility of police chiefs to enter into rewarded collaboration agreements at the stage of the police investigation. The action, which questioned provisions of Law 12,850/2013, proposed by the PGR, was dismissed. The summary states: “Considering the relevance of the collaboration provided, the Public Ministry, at any time, and the police chief, in the police investigation records, with the manifestation of the Public Ministry, may request or represent the judge for the granting of judicial pardon to the employee, even if this benefit was not foreseen in the initial proposal, applying, where applicable, art. 28 of Decree-Law No. 3,689, of October 3, 1941 (Code of Criminal Procedure)” (Justice Marco Aurélio – STF – Direct action of unconstitutionality 5,508 federal district ).

The award-winning collaboration agreement cannot be challenged by co-authors or participants of the collaborator:  The rewarded collaboration agreement cannot be challenged by co-authors or participants of the collaborator in the criminal organization and in the criminal offenses committed by it, even if they are expressly named in the respective instrument in the “report of the collaboration and its possible results ( HC 127.483, rel. Min. Dias Toffoli, judgment on 26 and 27-8-2015, judgment published in the DJE of 4-2-2016  – Newsletter 796, Plenary).

Collaboration awarded in 1st. instance that mentions authority with forum prerogative in the STJ:  Award-winning collaboration. Fortuitous encounter of evidence. Authority with prerogative of forum. Competence for ratification of the agreement. Apparent judge theory. The homologation of a collaboration agreement awarded by a judge of the first degree of jurisdiction, who mentions authority with prerogative of forum in the STJ, does not translate into usurpation of competence of this Superior Court (…) Being the awarded collaboration a form of delatio  criminis, that is, a means of obtaining elements of conviction, the information provided by the employee may even refer to crimes other than those that give rise to the agreement, configuring, in this situation, the hypothesis of serendipity or fortuitous discovery of evidence. In fact, the STF has guidance in the sense that the evidentiary elements indicative of the participation of persons holding the prerogative of the forum are valid, collected fortuitously in the course of investigative measures involving individuals without this prerogative (…) being obtained, by fortuitous discovery, elements of conviction that relate the conduct of a person who holds a prerogative of function to the crime initially imputed to other people, the records together must be forwarded to the prevailing court so that it can decide on the existence of a connection or continence between the crimes and to decide on the convenience of dismembering the process. Indeed, it is the prevailing judgment, defined according to the rule of art. 78, III, of the CPP, who should decide on the connection and salute and on the separation of processes (STJ, Rcl 31.629-PR, Rapporteur Min. Nancy Andrighi, unanimously, judged on 09/20/2017, DJe 09/28/2017  – Newsletter 612).

Prohibition of using evidence produced by the employee to his detriment in an agreed manner:  The use of evidence, produced by the employee himself, to his detriment, other than that signed with the prosecution and approved by the Judiciary, is an abusive practice and violates the right not to self-incrimination ( Inq 4,420 AgR, rel. min. Gilmar Mendes, DJE of 9-13-2018 ).

Collaboration of a member of the Public Ministry in the collaboration agreement does not affect the validity of the evidence presented:  The eventual assistance of a member of the Public Ministry in negotiating a collaboration agreement does not affect the validity of the evidence presented by the collaborators, if there is no consistent indication that the fact is known to the Public Prosecutor’s Office ( Inq 4.506 and Inq 4.506 AgR-Second, rel. to ac. min. Roberto Barroso and rel. min. Marco Aurélio, respectively ).

Co-defendant is not a witness, even if he has not been accused in the same process:  The Brazilian procedural system does not allow the hearing of a co-defendant as a witness, or even as an informant, even if he has not been accused in the same criminal process in which it is intended your inquiry, except if you are a collaborating agent whose testimony is provided in the context of the legal regime of award-winning collaboration ( AP 996, rel. min. Edson Fachin, DJE of 8-2-2019 ).

Ratifying court and sharing: Although sent to other bodies of the Judiciary for the investigation of the declared facts, the court ratifying the award-winning collaboration agreement remains competent to deliberate on claims that involve the sharing of testimonials provided by the collaborator ( Pet 7.065 AgR , rel. min. Edson Fachin, DJE of 2-20-2020).

Jurisprudence – Homologation of the agreement

The judge, when approving the collaboration agreement, does not make any value judgments regarding the statements to the Public Prosecutor’s Office, nor does it confer the sign of suitability on their subsequent testimonies ( HC 127.483, rel. min. Dias Toffoli, judgment on 8/26 and 8/27/2015, judgment published in the DJE of 2/4/2016  – Newsletter 796, Plenary ).

The judge and the award-winning collaboration agreement:  In the judicial approval of award-winning collaboration agreements, the magistrate must restrict himself to the judgment of regularity, legality and voluntariness of the agreement ( Pet 7.074  and  Pet 7.074 QO , rel. min. Edson Fachin, DJE de 3-5-2018).

The rapporteur approves and the competence to examine the merits rests with the collegiate : The homologation of the awarded collaboration agreements is the responsibility of the rapporteur, and the judgment of merit on the terms and effectiveness of the collaboration is the responsibility of the collegiate ( Pet 7.074  and  Pet 7.074 QO , rel . min. Edson Fachin, DJE of 5-3-2018).

The collegiate body can examine the legality of the collaboration agreement ratified by the rapporteur:  The agreement ratified as regular, voluntary and legal, as a rule, must be observed through the fulfillment of the duties assumed by the collaborators, being possible for the collegiate body to analyze its legality ( Pet 7,074  and  Pet 7,074 QO , rel. min. Edson Fachin, DJE of 5-3-2018).

Jurisprudence – Leniency Agreement and Evidence Sharing

Leniency agreement and sharing of evidence:  If the accused is not covered by the leniency agreement in question, there are no obstacles to sharing evidence, as long as the request is adequately delimited and justified ( Inq 4.420 AgR, rel. min. Gilmar Mendes , DJE of 13-9-2018 ).

Jurisprudence – Denunciation. depositions of the accusations

Testimonies of award-winning collaborations do not need to be recorded on magnetic media:  There is no legal requirement that testimonies referring to award-winning collaborations be recorded on magnetic or similar media ( Inq 4.146, rel. min. Teori Zavascki, judgment on 6-22-2016, DJE of 5-10-2016  – Newsletter 831, Plenary).

Jurisprudence – Denunciation. Noncompliance with the agreement

Frustration in carrying out a plea bargain does not authorize the imposition of precautionary segregation. Law no. 12,850/2013 does not present the revocation of pre-trial detention as a benefit provided by the execution of a rewarded collaboration agreement: Preventive Prison. Poor reasoning. Frustration in carrying out a plea bargain does not authorize the imposition of precautionary segregation. Failure to comply with a plea bargain agreement or failure to carry it out, in isolation, does not authorize the imposition of precautionary segregation (…) the imposition of imprisonment (In this sense: HC 138.207, 2nd Panel, Reporting Minister Edson Fachin). In other words, pre-trial detention cannot be used as a “bargaining chip” or anticipated punishment for those who, defendants in criminal proceedings, enter into or are in the process of entering into the aforementioned agreement (…) as can be seen from the judgment of the Supreme Court, Law no. 12.STJ, HC 396.658-SP, Rapporteur Min. Antônio Saldanha Palheiro, unanimously, judged on 6/27/2017, DJe 8/1/2017 – Newsletter 609 ).

Non-compliance with a plea bargain agreement by itself does not authorize the imposition of a penalty:  Summary: Non-compliance with an award-winning agreement or frustration in its implementation, alone, does not authorize the imposition of precautionary segregation. There is no concrete indication that the patient could cause embarrassment to the evidentiary instruction, only mere conjectures devoid of empirical basis. The opinion of Minister Antonio Saldanha Palheiro reads: “On the other hand, the simple fact that the award-winning collaboration agreement was frustrated, or even its non-compliance, by itself, does not justify the imposition of imprisonment (In this sense: HC 138.207 , 2nd Panel, Reporting Minister Edson Fachin). In other words, pre-trial detention cannot be used as a ‘bargaining chip’ or anticipated punishment for those who, as defendants in criminal proceedings, enter into or are in the process of entering into the aforementioned agreement. Therefore, the imposition of precautionary segregation is not legitimized, as in the hypothesis, due to the conclusion of the award-winning agreement not having been successful. This circumstance alone does not authorize the imposition of restrictions on the freedom of the accused. It is important to note that when the preventive detention was revoked, the Judge highlighted that ‘the requirements that gave rise to precautionary custody are absent at the moment’. In this way, a new decree would claim, in compliance with the guidance signed by that Court, the indication of new facts, which would indicate the presence of the requirements inserted in art. 312 of the Code of Criminal Procedure, a situation that does not occur in this case”( highlighted the judge that ‘absent, at the moment, the requirements that gave rise to precautionary custody’. In this way, a new decree would claim, in compliance with the guidance signed by that Court, the indication of new facts, which would indicate the presence of the requirements inserted in art. 312 of the Code of Criminal Procedure, a situation that does not occur in this case”( highlighted the judge that ‘absent, at the moment, the requirements that gave rise to precautionary custody’. In this way, a new decree would claim, in compliance with the guidance signed by that Court, the indication of new facts, which would indicate the presence of the requirements inserted in art. 312 of the Code of Criminal Procedure, a situation that does not occur in this case”(Minister Antonio Saldanha Palheiro – STJ – HC 396658 ).

The termination agreement may be revised:  The possibility of rescission or revision, in whole or in part, of an approved agreement of award-winning collaboration, as a result of a possible breach of duties assumed by the collaborator, does not allow knowing and judging the allegation of worthlessness of the evidence ( Inq 4,483 QO, rel. min. Edson Fachin, DJE of 13-6-2018 ).

Collaboration agreement as a perfect legal act:  As Minister Celso de Mello concluded, “the award-winning collaboration agreement, provided that it is regularly approved by a competent judicial body, constitutes a perfect legal act, which results, when fulfilled by the collaborating agent, a subjective right that grants you access to legal benefits. It is important to point out that the regularly ratified award-winning collaboration agreement, whatever the instance before which it was entered into, qualifies as a perfect legal act, proving to be insusceptible to modification, except for the hypotheses of non-compliance by the collaborating agent or of the supervenience of a legitimate cause capable of deconstituting him” ( Minister Celso de Mello – STF – Question of order in petition 7.074 DF).

Jurisprudence – Denunciation. Whistleblower’s right to award

If the collaboration is effective and produces the desired results, the subjective right of the employee to apply the established premium sanctions must be recognized:  The collaboration agreement may provide for property issues related to the benefit earned by the employee with the commission of the crimes attributed to him . If the collaboration is effective and produces the desired results, it is necessary to recognize the subjective right of the collaborator to apply the premium sanctions established in the agreement, including those of a patrimonial nature ( HC 127.483, rel. min. Dias Toffoli, judgment on 26 and 27- 8-2015, judgment published in the DJE of 4-2-2016  – Bulletin 796, Plenary).

Jurisprudence – Denunciation. prevention and connection

The rules for determining jurisdiction must be observed when setting the court to prosecute and judge the crimes reported, including those of connection: collaborator, are not connected with the facts object of the matrix investigation. In this sense, the verification of the facts revealed by the collaborator will depend on the place where they were consummated, their nature and the condition of the incriminated persons, if they hold jurisdiction by prerogative of function (Inq 4.130 QO, rel. min. Dias Toffoli, judgment on 23 -9-2015, judgment published in the DJE of 3-2-2016 – Bulletin 800, Plenary)

Award-winning collaboration, by itself, does not justify prevention:  Award-winning collaboration, by itself, does not serve as a subsidy to justify the prevention of the feat ( Inq 4.130 QO, rel. min. Dias Toffoli, judgment on 9-23-2015 , decision published in the DJE of 3-2-2016  – Newsletter 800, Plenary).

Award-winning collaboration and connection:  If there is, among the facts reported by the collaborators, at least one in which the presence of a connection with the object of a previously distributed fact is verified, the court that ratifies the award-winning collaboration agreement is competent to process all facts reported ( Pet 7,074  and  Pet 7,074 QO , rel. min. Edson Fachin, DJE of 3-5-2018).

Third accused and access to the statement of accusation: The third party accused by the co-defendant, in terms of award-winning collaboration, has the right to access the passages in which he was cited ( Rcl 30.742 AgR , rel. min. Ricardo Lewandowski, DJE from 4-5 -2020).

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