Art. 5th In crimes involving public action, the police investigation will be initiated:
I – by office;
II – at the request of the judicial authority or the Public Prosecutor’s Office, or at the request of the victim or whoever has the capacity to represent him.
§ 1 The request referred to in number II shall contain whenever possible:
a) the narration of the fact, with all the circumstances;
b) the individualization of the defendant or his characteristic signs and the reasons for conviction or presumption that he was the author of the infraction, or the reasons for the impossibility of doing so;
c) the appointment of witnesses, indicating their profession and residence.
§ 2 The dispatch rejecting the request for opening an investigation may be appealed to the Chief of Police.
§ 3rd Any person from the people who is aware of the existence of a criminal offense in which public action is in order may, verbally or in writing, communicate it to the police authority, which, having verified the origin of the information, will order the initiation of an investigation.
§ 4 The inquiry, in crimes in which the public action depends on representation, cannot be initiated without it.
§ 5 In crimes of private action, the police authority may only carry out an investigation at the request of those who have the quality to initiate it.
Beginning of the inquiry. Duty to set up
The typicality of the fact: The police authority, suspecting that a fact endowed with typicality has occurred, has the right and duty to determine the opening of the police investigation. It is a binding, mandatory act. There is no discretionary power. Given the assumption of suspected occurrence of a fact endowed with typicality , which must be supported by evidence, the administrative duty to initiate the police investigation arises. Certainty is not necessary , just a suspicion of the occurrence of the fact. As decided by Paulo David Tôrres Barcellos, it is not possible to suspend an inquiry initiated with the aim of clarifying dubious or ambiguous situations (RJTJRS 99/81). But the suspicion must concern a fact that is typical. As Fábio Bittencourt da Rosa explained, the right to inquire about the possible existence of a crime is broad, only finding obstacles in abuse and uselessness. If it is evident that the investigation will lead to nothing, because there is a clear lack of evidence on the materiality of the crime, the police investigation will have to be suspended (RTRF – 4th region – 7/436). The act of opening a police investigation in administrative law is similar to the act of launching it in tax law: both are binding and mandatory. The typicality of the fact is enough; suspicion or certainty as to authorship is not necessary, as one of the goals of the survey is precisely the investigation and determination of authorship. It is also not necessary to suspect the commission of a crime (typical and anti-legal fact). Just the typicality, one of the elements of the typical fact. Even if there is no intent or guilt in the agent’s conduct, even if there is the possibility that there is no causal relationship between the action and the result, even if the conduct was carried out in self-defence, in a state of necessity, in strict compliance with a legal duty or in the exercise of regular law, or even if the causes that exclude guilt are present, the police authority, given the typicality of the fact, has the obligation to initiate a police inquiry. All these circumstances capable of excluding the crime can only, when proven, imply the inexistence of the police authority’s right to indict the agent. The issue of indictment is discussed in the annotations to Article Six.. Having founded suspicion of the occurrence of a fact endowed with typicality, and even so not determining the opening of the police investigation for investigation purposes, the police authority is subject to the sanctions of the crime of prevarication (article 319 of the CP), which consists of delaying or fail to perform, improperly, an official act, or practice it against express provision by law, to satisfy personal interests or feelings .
Exception to the rule of typicality: There is no duty to open an investigation when the criminal liability is extinguished. In addition to prescription, article 107 of the CP provides for other extinct causes of punishment. The investigation also cannot be initiated without the complaint in crimes involving private action or representation when the criminal action depends on it.
Flagrant, representation and crime of private action: Arrest in flagrante delicto, in the case of a crime of private action or of a crime whose prosecution depends on representation, is not prohibited. The drawing up of the arrest warrant, however, will depend on the consent of the victim.
Video
Flavio Meirelles Medeiros: Nullities of the investigation leading to the illegality of the preventive measure and the suspension of the criminal action
Doctrine
Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.
Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.
Jurisprudence
The absence of the definitive assessment in tax evasion crimes does not prevent the investigation: In tax evasion crimes, the absence of the definitive tax assessment does not prevent the preliminary investigation ( HC 106.152, rel. min. Rosa Weber, judgment on 3-29-2016, DJE of 5/24/2016 – Bulletin 819, First Panel
The initiation of a police inquiry prior to the final constitution of the tax credit is not cause for nullity of the criminal action, if it is evidenced that the tax was constituted before its filing. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
HC 269546/SP, Rel. Minister Nefi Cordeiro, judged on 05/03/2016, DJE 05/12/2016
RHC 028621/CE, Rel. Minister Sebastião Reis Júnior, judged on 02/18/2016, DJE 03/08/2016
Rulings relating to the principle of insignificance: See jurisprudence in comments to article 41 .
Crimini news and ordinance
Notitia criminis and police occurrence: The news of the commission of a crime can come to the knowledge of the police authority by the most diverse means: during their routine activity, through virtual social networks, on internet sites, during the investigation of another crime, communication by e-mail, through the press, with representation, complaint, request, written communication, oral communication, anonymous letter, anonymous phone call, etc. According to their origin, different classifications are given to crime news. There is, however, no use to these labelings, which is why we have not examined them.
Ordinance or arrest warrant in flagrante delicto. The initial parts of the investigation: Although the investigation can be instituted for the most diverse reasons, the formal act that initiates it is either the ordinance of the police authority or the arrest warrant in flagrante delicto. The requisition, the representation, the request and the complaint are news of crime, or ways of provoking the initiation of the investigation, not inaugural acts of the investigation. So much so that requisition, representation, application and complaint can be rejected. After receiving any of these documents, it is up to the police chief to decide whether or not to open an investigation.
Doctrine
Alexandre Betini: The locking up of the police investigation . Faculty of Law of the University of São Paulo.
Jurisprudence
Duty to initiate an investigation : The victim’s request to open an investigation must be rejected if the narrated fact is not typical (RJTJRS 78/18).
Withdrawal of the inquiry : Habeas corpus is applicable for the withholding of an investigation that investigates behavior that does not constitute a crime (STF, Lex 153/297; RT 654/322). In order to determine the suspension of police investigations, it is necessary that the action or omission evidently does not constitute a crime in theory (TJRS – HC 686038274). In the same sense: STF, Lex 138/356. If the facts do not immediately demonstrate the absence of evidence that could constitute a crime or non-lawfulness of the patient’s conduct, it is not possible to lock the investigation (STF, Lex 150/237). Within the strict scope of habeas corpus, it is impossible to assess evidence. Constituting the fact, the thesis, crime, there is no need to interpose the HC (TJRS – RHC 68041821). It is up to habeas corpus to suspend a police investigation when it is clear that the agent committed the act under the protection of prohibition error (RT 6980/339).
Ways to provoke the initiation of the investigation
News of a crime in any form: If, in any way, the news of the commission of a crime ( notitia criminis ) of unconditional public criminal action comes to the knowledge of the police authority , the authority has the duty to determine the opening of a police inquiry.
Requisition: The opening of an investigation can be determined to the police authority through a request from the Public Ministry or the judge ( article 13, item II of the CPP ). On this subject, see the subheading Requisitions from the judicial, ministerial and police authorities are to be fulfilled in the heading Relations between the police and the Public Prosecutor’s Office, in comments on Article 4. Except in the event of a manifestly illegal request, the police chief is obliged to initiate the investigation. Failure to comply with the request may imply the commission of the crime of prevarication ( Article 319 of the Penal Code). It should be noted that the right of the Public Ministry to request the initiation of an investigation was elevated to the category of institutional function by the Federal Constitution ( article 129, item VIII).
Requisition and habeas corpus : If the inquiry was initiated due to a request from a prosecutor or judge, the habeas corpus aiming at its suspension must be filed with the court. The coercive authority is the one who requested the initiation of the investigation. According to Guilherme de Souza Nucci, in comments on the present provision, the competence of the court is justified insofar as, in the event of abuse of authority in the initiation of the investigation, the competence for the judgment of the judge or the prosecutor rests with the court, in view of the function prerogative (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented . 13th. Ed. Grupo Editorial Nacional: 2014).
Request by the judge: This provision in item II authorizes both the Public Ministry and the judge to request the initiation of a police investigation. Article 129, item VIII of the CF, states that it is an institutional function of the Public Prosecutor’s Office to initiate a police investigation. This same constitutional device, number 129, in item I, states that it is the institutional functions of the Public Prosecutor’s Office to promote, privately, public criminal action, which means that the accusatory system was adopted. Considering these two devices, it would not be unfeasible to maintain that it is no longer up to the judge to request the opening of an investigation. However, if the requesting judge is prevented from acting in the case later, we do not see the reason for the subtraction of his power to determine the opening of an investigation.
Application: The inquiry may also be initiated upon request of the victim or whoever has the capacity to represent him. The application must contain, under the terms of this device, the narration of the fact, the individualization of the accused and the reasons for conviction or presumption that he was the author of the infraction, and the appointment of witnesses. The important thing is that the application contains the narration of a criminal fact. Authorship may be unknown and the applicant may not have the names of witnesses to indicate, and even so it will be up to the police authority to initiate the investigation, investigating authorship, materiality and gathering evidence. In practice, such requests are made orally and recorded in the so-called Book of Occurrences. The application may be rejected. But not for any reason.
Representation: The investigation, in crimes in which the public action is conditioned to the representation of the victim, cannot be initiated without it (article 5, paragraph 4). The representation can be exercised orally or in writing, personally or through a prosecutor with special powers, to the judge, the MP or directly to the police authority (article 39 ) . Representation does not require further formalities. Only the will to initiate the prosecution of the offender needs to be expressed. The simple registration of the police occurrence already authorizes the police authority to start the investigation, if it has sufficient evidence of the commission of a crime.
Requisition: Some crimes depend on a request from the Minister of Justice for the action (and the investigation) to be initiated. The Penal Code foresees them in articles 7, paragraph 3, letter “b” and in article 145, sole paragraph , both of the Penal Code.
Complaint: In crimes involving private action, the inquiry can only be opened upon a request from someone who has the legitimacy to file a complaint. The complaint, in the crimes of private action, is similar to the denunciation. It is addressed to the judge. What is addressed to the police authority is not exactly the complaint, but a request to open an investigation. This application, or complaint , addressed to the chief of police does not interrupt the six-month expiry period for filing the complaint in court (term of article 38 of the CPP). Thus, the application for opening an investigation, in the case of a crime involving a private action, must be made to the police within a period of six months, counted from the day on which the plaintiff finds out who the author of the crime is, under sorry to be rejected. As with the representation, the complaint does not require further formalities. The police occurrence or the victim’s testimony already have the value of a complaint for the purpose of opening an investigation.
There is no investigation in the case of an offense under the jurisdiction of the Special Court
Detailed term and referral: In the case of an offense within the jurisdiction of the Special Criminal Court (criminal misdemeanors and crimes with a maximum sentence not exceeding two years), the police inquiry is not provided. A detailed term is drawn up and sent immediately to the Court, with the author of the fact and the victim, providing the necessary expert examination requests. The author of the act who, after drawing up the term, is immediately forwarded to the Court or assumes the commitment to appear there, arrest in flagrante delicto is not imposed, nor is bail required (article 69, sole paragraph of the Law of Special Courts – Law 9,099/95 ).
Measures against refusal to open an investigation
Appeal: The Chief of Police (paragraph 2 of Article 5) or the Secretary of Security (depending on the State) may appeal against the order rejecting the opening of an investigation. The interested party may also apply directly to the Public Prosecutor’s Office, which has the power to request the opening of an investigation. The offended party may also file a writ of mandamus against the police authority, including a request for an injunction. His clear and certain right to initiate a police inquiry derives from his subjective constitutional right to propose a subsidiary private criminal action. When the law prescribes a right, it is a consequence, it also makes possible the means to exercise it (theory of implicit powers).
Jurisprudence
Representation : When the public criminal action is conditioned to the representation of the offended party, even the police investigation cannot be instituted without it (TJRS – HC 863033096).
Simple, award-winning whistleblowing and anonymous crime news
As a rule, a faculty: Paragraph 3 of Article 5 authorizes any person who is aware of the existence of a criminal offense to communicate it to the police authority. It is one of the ways in which the commission of the crime comes to the knowledge of the police authority. It is mere faculty.
Duty of communication: Anyone who exercises a public function has the duty to report a crime of which he became aware in the exercise of his function, provided that the criminal action does not depend on representation. Failure to communicate constitutes a criminal offense ( Article 66, item I of Decree-Law No. 3688/1941 ). Similarly, anyone who has knowledge, in the practice of medicine or another health profession, of a public action crime has the duty to report the crime, provided that the criminal action does not depend on representation and the communication does not expose the client to criminal criminal proceedings ( article 66, item II of Decree-Law n. 3.688/1941 ).
Award-winning delation in different laws: When, by prior agreement, 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). See more topics on plea bargaining in the comments to Article 197 .
Award-winning denunciation in organized crime and probative value of the award-winning delation: See comments to article 197 .
Anonymous crime news: In the face of anonymous crime reports, can investigations be initiated? Article 5, item IV of the CF states that the expression of thought is free, with anonymity being prohibited. It is understood that the news alone does not authorize the initiation of the investigation. False accusations, protected by anonymity, may be made in order to harm opponents and enemies. For this reason, it has been understood that, if the police authority, faced with the news, considers that it may have some basis, it must, with great caution and prudence, safeguarding the privacy of the reported, and without invasive measures, investigate the fact . Just the reported fact. Check if it really happened. If there is proof of the fact, the investigation can be opened.
Anonymous news of crime, breach of chain of custody and illicit evidence: Chain of custody of the evidence concerns the historical and chronological documentation of the evidence, from the news of the crime and the first indications to the last evidence obtained. It is necessary, in the chain of custody, that the succession link of obtaining the evidence is demonstrated. One of the purposes, among others, of the chain of custody of the evidence is to make it possible to certify that the evidence was not obtained illegally. Anonymous crime news is the wide open door for illicit evidence to enter. In other words and giving a simple example: telephone interceptions are carried out without judicial authorization. The collected information becomes anonymous news. The inquiry is opened. The chain of custody is broken. It’s called breaking the chain of custody. It is necessary to rethink the validity conditions of anonymous crime news.
Doctrine
Aldo de Campos Costa : Anonymous denunciation has limitations to motivate investigation . Conjure The debate regarding the possibility of admitting accusations based on anonymous statements involves complex and controversial issues. One of them is to know in what circumstances the use of a document whose author has not been identified justifies the initiation of an administrative investigation process. For this purpose, the doctrine states that, at first, the prosecution body must promote informal diligences, in terms of the existence of the fact – and not of the authorship – to determine whether or not, or whether or not, the alleged criminal offence.
Aury Lopes Jr. and Alexandre Morais da Rosa: Delation cannot be terminated unilaterally at the whim of the State . Conjure .
Jurisprudence:
Anonymous complaint: The “anonymous complaint” does not have the power to invalidate the police inquiry when the investigations use other steps taken to investigate the delatio criminis or the criminal action, when the conviction is based on a set of evidence contained in the file, under the sieve of the contradictory and full defense ( Minister Gilmar Mendes – STF – ARE 954758 AgR ).
Suspicion of the police authority does not annul the process: The suspicion of police authority verified in an investigation is not a reason for the annulment of the criminal process ( RHC 131.450, rel. min. Cármen Lúcia, judgment on 5-3-2016, DJE of 5-17 -2016 – Bulletin 824, Second Panel).
It is possible to determine telephone interceptions based on an anonymous complaint, provided that it is corroborated by other elements that confirm the need for the exceptional measure. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 70560/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 12/04/2018, DJE 12/14/2018
AgRg in AREsp 988527/RS, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/20/2018, DJE 09/28/2018
HC 443331/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 09/18/2018, DJE 10/02/2018
AgRg in REsp 1690840/ES, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 06/19/2018, DJE 06/29/2018
RHC 53541/RJ, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/12/2017, DJE 09/20/2017
RHC 64910/RS, Rel. Minister Antonio Saldanha Palheiro, Sixth Panel, judged on 04/04/2017, DJE 04/17/2017
See also the journals (updated to date of publication):
Jurisprudence Information No. 0487, published on November 18, 2011.
Anonymous complaints: The case law of the STF is firm in the sense that anonymous complaints cannot support, by themselves, invasive measures such as telephone interceptions, searches and seizures, and must be complemented by subsequent investigative measures ( HC 180709/SP, rel. Min . . Gilmar Mendes, judgment on 5.5.2020 ).
Jurisprudence – Delation
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 the 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 collaborator to his detriment in a different manner agreed: The use of evidence, produced by the collaborator himself, to his detriment, in a manner 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 ).
Award-winning collaboration and exercise of the right of defense : The accused is assured access to statements made by collaborators that incriminate him, already documented and that do not refer to the diligence in progress that may be harmed ( Rcl 30742 AgR/SP, rel. Min. Ricardo Lewandowski, judgment on 2.4.2020. (Rcl-30742 ).
Jurisprudence – The whistleblower and the judge
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 – Denunciation. leniency agreement
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 ).
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).
Appropriate remedy against the refusal of approval: The criminal appeal is the appropriate remedy to challenge the decision that refuses the approval of the award-winning collaboration agreement, but in the face of objective doubt, the application of the principle of fungibility is appropriate ( REsp 1.834.215- RS , Reporting Minister Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 10/27/2020, DJe 11/12/2020).
Jurisprudence – Denunciation. Whistleblower’s right to award
If the collaboration is effective and produces the desired results, the employee’s subjective right 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
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).
Competent court to ratify the agreement: The homologation of a collaboration agreement, as a rule, will have to be given before the competent court to authorize the measures of production of evidence and to process and judge the criminal facts committed by the collaborator. If the proposal for an agreement takes place between the sentence and the judgment by the appellate body, the homologation will occur in the judgment by the Court and will be included in the judgment ( HC 192063/RJ, rapporteur Min. Gilmar Mendes, judgment on 2.2.2021 ).
Crimes in general. Laws, doctrine and jurisprudence interest
Regarding the typicality of different crimes: Regarding the typicality of different crimes, see doctrine and jurisprudence in comments to articles 386 and 387 , which refer, respectively, to acquittal and condemnatory sentences.
Laws of interest: There are some sparse laws that are of special interest to criminal law practitioners. Between them:
Law 5.256/1967 (special prison)
Law 7.492/86 (crimes against the financial system)
Law 8.072/90 (heinous crimes)
Law 8.137/90 (crimes against the tax order)
Law n. 9,099/95 (special court)
Law n. 9,455/97 (torture)
Law n. 9.503/97 (Brazilian Traffic Code)
Law 9.613/98 (money laundering crimes)
Law 9.807/99 (victim and witness protection)
Law n. 10,826/2003 (weapons)
Law 11.343/2006 (narcotics trafficking)
Law n. 11,419/2006 (electronic process)
Law n. 12,737/2012 (computer crimes)
Law 12.850/2013 (criminal organization).
Law n. 13,869/2019 (abuse of authority)
Doctrine
Alexandre de Moraes: Combating Corruption and Respecting the Principle of the Natural Judge as a Constitutional Guarantee . Bdjur.
Aline Pinheiro : Italian Chamber approves project that makes judges responsible .Conjur.
Andre Luis Callegari. The difficult classification of organized crime .
Andre Luis Callegari. Possible criminal repercussions of Law 13.506/2017 . Conjure
Anna Mayra Araújo Teófilo and Rômulo Rhemo Palitot Braga: International criminal cooperation in money laundering crimes . publicadireito.com.br.
Catarina Sengo Furtado: The criminal law of the enemy in the anti-terrorism law: the crime of recruitment . Law School. University of Lisbon.
Davi Tangerino: The crimes of AraraquaraGate: part I, the hackers. Conjure Considerations on the crime of criminal organization.
Eduardo Luiz Santos Cabette: The new crime of Computer Device Invasion . Conjure
Fábio Rodrigues Franco Lim and Flavio Fenoglio Guimarães: Drug debate demands integration, not decriminalization or punishment . Higher School of Police.
Flavio Meirelles Medeiros. The dementia policy of drugs . Jusbrasil.
Guilherme Nucci: The Drug of the Drug Law . guilhermenucci.com.br.
Guilherme Nucci: Criminal Organization . guilhermenucci.com.br.
Gustavo Badaró : Money laundering: the concept of indirect product of the antecedent criminal offense in the crime of money laundering . Badaro Lawyers.
Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.
Márcio Adriano Anselmo: Police infiltration in the fight against crimes of corruption . Conjure
José Raimundo Leite Filho : International corruption, criminal compliance and internal investigations . repository.ul.pt. 2017.
Joselito de Araujo Sousa: Faces of international cooperation in the federal police . University of Brasilia. bdm.unb.br/bitstream .
Leonardo Isaac Yarochewsky: Drug consumption is a public health issue .Conjur.
Lucas Tavares Mourão and Jamile Bergamaschine Mata Says: Criminal judicial cooperation and regional integration: normative and institutional treatment in the European Union and Mercosur . periodicos.unichristus.edu.br.
Ney Bello : Lynching of the accused does not contribute to a better country and less corruption . Conjure
Gustavo Badaró: Money laundering: the concept of indirect product of the antecedent criminal offense in the crime of money laundering . Badaroadvogados.
Henrique Hoffmann Monteiro de Castro : Human Trafficking Law brings advances and causes perplexity . Conjure
Jader Marques: José Roberto Batochio and the criminalization of law. Emporium of law. On criminal organization and obstruction of justice.
José Fernando Seabra Pulido Neves da Costa : Criminal law and culture: Criminal responsibility in honor killings . repository.ul.pt. 2014.
José Luis Oliveira Lima: Criminal Reflections of the Fiscal War . olimaadvogados.adv.br.
José Raimundo Leite Filho : International corruption, criminal compliance and internal investigations . repository.ul.pt.
Luiz Armando Badin, Heloisa Estellita, Pierpaolo Cruz Bottini and Celso Sanches Vilardi: Advocacy and laundering: some misunderstandings need to be cleared up . Conjure
Luiz Flávio Borges D’Urso: Cybercrime: Danger on the Internet! duraso.com.br.
Manuel Monteiro Guedes Valente: Judicial cooperation in criminal matters in the context of terrorism . revistaeletronicas.pucrs.br.
Ney Bello: Incarceration for Small Amounts of Drugs: The Meat of Organized Crime . Conjure
Ney Bello, Pierpaolo Cruz Bottini and Drauzio Varella: For a New Drug Law . Folha.uol.com.br.
Marcelo Almeida Ruivo: The legal interest of the crime of passive corruption in the public sector . wunderlich.com.br.
Pierpaolo Cruz Bottini: Advocacy and Money Laundering . btadvogados.com.br
Pierpaolo Cruz Bottini : Money laundering: what is the concealment necessary for the crime? Higher School of Police.
Priscilla Caroline Veiga Leal de Mello : The fight against terrorism and its consequences in guaranteeing human rights . repository.ul.pt. 2017.
Raul Haidar : Crimes against the tax order: abuses and fantasies of the Tax Authorities . Conjure
Rui Aido : Deliberate Blindness . Law School. University of Lisbon.
Sandra Hermengarda do Valle-Frias Madureira Moutela Simões : Crime of Corruption – some specificities of her investigation – Anonymous Complaint and Whistleblowing . repository.ul.pt. 2016
Sérgio Henriques Zandona Freitas, Gristianne Pimenta Reis, Laura Nery Campos Rodrigues, Mariana Silva Bastos de Sena, Matheus de Araújo Alves and Sofia Moreira Martins: Interpol and the fight against transnational crimes . defense.gov.br.
Sergio Seabra. From the boundary between the concept of “good of small value” and “good of insignificant value”, to the application of the trifle principle . Anadep.
Tadeu Rover : “Internet facilitates crimes and makes investigation difficult, encouraging impunity” . Conjure
Vladimir Aras. Computer crimes . jus.com.br.
Vladimir Aras. Money laundering, criminal organizations and the concept of the Palermo Convention . jus.com.br.
Vladimir Aras. National anti-money laundering and asset recovery system . jus.com.br.
Salise Monteiro Sanchotene: Common aspects between the crime committed by Militias in Brazil and the Mafioso type in Italy . Speaking of criminal organizations, coming across this article is a cause for satisfaction. Dr. Salise, based on a rich bibliography, advances confidently on the subject and examines it in depth. In his conclusions, he writes: “This phenomenon, which occurred in Italy more than fifty years ago, is also observed in Brazil, because, given the inability of the public power to solve structural problems of society – such as security and transportation, to exemplify a few –, Organized groups, which today are known as militias, proliferated at an alarming rate in certain communities in some states. It is necessary to investigate the risks of an eventual consolidation in this state of affairs, because, through repeated practices of tax evasion and clandestine work in such militia organizations, healthy competition that should prevail in a rule of law is eliminated. After all, how to compete in certain communities with those who use illicit capital and zero cost? It is urgently necessary to recognize that Brazil is facing a serious social and economic problem, given the vertiginous growth of the militias. In response, it is imperative that the legislature approve the criminalization of crimes committed by such criminal organizations, in order to provide the repression bodies with an adequate instrument to face this problem, since the legislation in force does not meet the desires of society”. recognize that Brazil is facing a serious social and economic problem, given the vertiginous growth of militias. In response, it is imperative that the legislature approve the criminalization of crimes committed by such criminal organizations, in order to provide the repression bodies with an adequate instrument to face this problem, since the legislation in force does not meet the desires of society”. recognize that Brazil is facing a serious social and economic problem, given the vertiginous growth of militias. In response, it is imperative that the legislature approve the criminalization of crimes committed by such criminal organizations, in order to provide the repression bodies with an adequate instrument to face this problem, since the legislation in force does not meet the desires of society”.
Jurisprudence
Decisions regarding taxes: See jurisprudence section in comments to Article 41 .
Decisions relating to miscellaneous crimes: See the jurisprudence section in notes to articles 386 and 387 , which deal, respectively, with acquittal and condemnatory sentences.
In order to characterize the crime of laundering, it is necessary to prove that the accused was aware of the illicit origin of the values: In order to characterize the crime of laundering, it is necessary to prove that the accused was aware of the illicit origin of the values and identify the subsequent acts, to place the undue advantage in the formal economy ( AP 470 EI-sextos/MG, rel. orig. min. Luiz Fux, rel. p/ o ac. min. Roberto Barroso, judged on 13-3-2014, judgment published in the DJE of 21-8-2014 – Newsletter 738, Plenary Session). CRIMES
Non-configuration of controlled action: The police investigation whose sole purpose is to obtain more concrete information about the conduct and whereabouts of a certain trafficker, without intending to identify other suspects, does not constitute the controlled action of art. 53, II, of Law 11.343/2006, judicial authorization being unnecessary for its realization ( STJ, RHC 60.251-SC, Justice Sebastião Reis Júnior, judged on 9/17/2015, DJe 10/9/2015 – Newsletter 570 ).
Undercover agent and intelligence agent. Reservation of jurisdiction regarding the first: The performance of the undercover agent, unlike what happens with the intelligence agent, depends on prior judicial authorization ( HC 147.837, rel. min. Gilmar Mendes, DJE of 6-26-2019 ).
