Plea agreements in Brazil: concept, procedures and impact on corruption cases
February 2017 | SPECIAL REPORT: CORPORATE FRAUD & CORRUPTION
Financier Worldwide Magazine
So-called plea agreements, or in Portuguese, colaboração premiada, are not new in the Brazilian legal framework. However, they gained strength with the enactment of Law 12.850/2013 and notoriety during the Car Wash Probe.
The Car Wash Probe is a huge ongoing federal police operation which started in March 2014, targeting corruption, money laundering and other offences committed in relation to state owned oil company Petrobras. The development of the investigations caused it to spread to other companies and sectors of the Brazilian economy, resulting in the arrest and prosecution of many entrepreneurs, lobbyists and politicians, including high-level officials of the federal government, senators and members of congress.
Plea agreements played a substantial role in the development of the investigations, which gave a lot of attention to this issue during the last few years. According to our law, a plea agreement is basically a contract entered between suspects/defendants and prosecutors, granting benefits to the one that effectively and voluntarily collaborates to clarify the facts.
The law provides that a judge may pardon or reduce the penalty of defendants/suspects who voluntarily cooperate with the investigation or criminal procedure, providing information that may produce one or more of the following results: identifying other perpetrators; exposing the structure of a criminal organisation; preventing crimes that result from the activities of a criminal organisation; recovery, in whole or in part, of the product or financial gains originated from the criminal activity; and the location of a possible victim, with his or her physical integrity preserved.
In addition, the plea agreement may prevent the Public Prosecutor’s Office from pressing charges against an individual if he or she is not the leader of the criminal organisation and is the first to effectively collaborate with the authorities. A plea agreement may be entered by the suspect/defendant at any time, including after a conviction is issued, in which case the penalty may be decreased by half.
The law establishes that the judge must not participate in negotiations to reach an agreement, which must be handled directly between the defendant/suspect and the police and/or public prosecutor. After the agreement is reached, an official document is sent to the judge containing the agreement itself and the statements provided by the defendant/suspect as a result of the collaboration.
Once the agreement is approved by the judge, the defendant/suspect may be required to give as many testimonies as necessary to the authorities. The defendant/suspect that enters a plea agreement must waive the right to remain silent and must give a truthful testimony whenever summoned to provide a deposition in court. If the defendant/suspect fails to tell the truth in court, the benefits of the agreement may be cancelled. It is relevant to mention that any plea agreements that involve authorities with special jurisdiction (such as the president, senators and ministers) are handled directly by the Brazilian Supreme Court and not by single district court judges.
Although it looks effective on paper, there has been plenty of criticism against plea agreements, especially by criminal law attorneys. Critics often argue that the evidence generated by a plea agreement is unlawful, unethical and unconstitutional, encouraging betrayal. Others say that the criminal’s word cannot be taken seriously and deemed credible, so it should be impossible to convict a defendant based on the evidence obtained through collaboration.
Critics of the plea agreements need to accept, however, that collaboration is provided by law and here to stay. Many countries in the world already rely on similar provisions to prosecute criminal organisations and it has been proven to be an effective tool. Therefore, it is pointless to struggle against a reality already in practice, with positive effects achieved so far.
Corruption is especially sensitive to plea agreements, because it is a very complex offence to investigate. It is hard to gather evidence to prove sophisticated corruption schemes. First, corrupt payments are sometimes the product of a very refined money-laundering scheme, so at times it is difficult – if not almost impossible – to trace the money back to the original source in order to prove wrongdoing.
Second, sometimes perpetrators are clever enough not to leave behind traces of criminal offences, such as emails, documents or other types of records. Although wiretapping of phones and emails are efficient, as well as breaches of bank secrecy, without inside information it is hard to know what to look for and how far the scheme of the criminal organisation goes.
For this and other reasons, many consider the Car Wash Probe to be a success due to the wide use of plea agreements as an investigative tool, which was not common in the past. The Car Wash Probe is a leading case and has definitely changed the way Brazilian authorities conduct investigations.
Of course, there is a lot of room for improvement. As with every innovation, authorities have to find a balance when applying it. For instance, although the law is clear on prohibiting conviction solely based on testimony obtained through a plea agreement, many Brazilian judges are basing severe verdicts merely on information provided by collaborators. Besides that, more often than not, prosecutors are also using arrests to pressure suspects and defendants into entering plea agreements.
It is true that abuses have been committed and that the country will have to deal with the new set of case law that originated from Operation Car Wash. Jurisprudence will have an important role in limiting the wide and indistinct use of plea agreements by prosecutors. This is also important because the law provides that plea agreements are admissible in relation to crimes committed at the helm of a criminal organisation. In spite of that, there have been some attempts by prosecutors to use this instrument even if there is no criminal organisation involved.
Nonetheless, despite all this, it is important to clarify that entering a plea agreement can be a valuable tool for the defence as well. Depending on the suspect’s/defendant’s situation, reaching an agreement can generate substantial benefits and, therefore, be something to consider in their interest. If the plea agreement provides benefits for the accused, whether reducing a sentence or even judicial pardon, it is clear that it may be closely linked to the right of defence.
Many defendants in the Car Wash Probe, who denied entering any kind of agreement at first, are now considering this option and even trying to get the prosecution to reach settlements. An attorney who denies this possibility, regardless of the case and the situation, departs from the defence and interests of their client. Therefore, the plea agreement can and should be used not only as a resource for the prosecution, but also as a technical defence tool, through which a suspect/defendant – depending on the situation – proposes to collaborate in order to obtain benefits.
Luís Carlos Dias Torres and Andrea Vainer are partners at Torres Falavigna Advogados. Mr Dias Torres can be contacted on + 55 (11) 5053 2054 or by email: firstname.lastname@example.org. Ms Vainer can be contacted on +55 (11) 5053 2053 or by email: email@example.com.
© Financier Worldwide
Luís Carlos Dias Torres and Andrea Vainer
Torres Falavigna Advogados