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Brazil: New Law Defines “Criminal Organization” and Provides for Investigatory and Other Procedures

(Aug. 12, 2013) On August 2, 2013, Brazil enacted Law No. 12,850 (Lei No. 12.850, de 2 de Agosto de 2013, PLANATO.GOV.BR), which defines “criminal organization” and provides for the methods of criminal investigation, the means for obtaining evidence, the related criminal offenses, and the criminal trial procedure to be applied to such organizations (art 1).

A criminal organization is deemed by the Law to be an association of four or more persons structurally organized and characterized by a division of labor, albeit informally, for the purpose of obtaining, directly or indirectly, an advantage of any kind through the practice of criminal offenses whose maximum penalties exceed four years or which are transnational in character (id. art 1§ 1).

Law No. 12,850 applies to criminal offenses provided for in international treaties or conventions, when such actions originate in Brazil and the criminal result occurs or should have occurred abroad, or vice versa. It also applies to international terrorist organizations, recognized pursuant to norms of international law to which Brazil is a party, whose acts supporting terrorism as well as whose preparatory acts for or the execution of terrorist acts occur or may occur in domestic territory ( 1§ 2).

Promoting, establishing, financing, or integrating with, personally or through an intermediary, a criminal organization is punishable with three to eight years in prison and a fine, without prejudice to additional penalties for the practice of other related criminal offenses ( 2). The same penalties apply to those who prevent or in any way hinder the investigation of a criminal offense involving a criminal organization ( 2 § 1). The penalties are increased by half if a firearm is used during an operation conducted by the criminal organization (id. art. 2 § 2). The penalty is increased for those who exercise command, individual or collective, of the criminal organization, even if the person in charge does not personally implement such acts ( 2 § 3).

At any stage of the criminal prosecution, without prejudice to other means already established by law, the following means of obtaining evidence are allowed:

  • conclusion of plea bargaining agreements (colaboração premiada);
  • monitoring of electromagnetic signals, acoustic or optical;
  • controlled response (see below for an explanation);
  • granting of access to phone and computer records, data contained in public or private databases, and commercial and electoral information;
  • interception of telephone and computer communications, according to the terms of specific legislation;
  • removal of the right to financial, banking, and tax secrecy, pursuant to specific legislation;
  • police infiltration during the course of an investigation of possible criminal activity; and
  • cooperation among federal, state, and municipal government institutions in the search for evidence and information of interest for purposes of the criminal investigation or criminal trial. ( 3.)

In regard to plea bargaining agreements, a judge may, at the request of the parties, grant judicial pardon to, or reduce by up to two-thirds or replace with a sentence of restrictive rights the custodial sentence of those who have cooperated effectively and voluntarily with the investigation and criminal prosecution, provided that such cooperation produced one or more of the following results:

1. identification of participants in the criminal organization and of criminal offenses committed by them;

2. revelation of the hierarchical structure and of the division of tasks of the criminal organization;

3. prevention of criminal offenses arising from the activities of the criminal organization;

4. full or partial recovery of the products or benefits derived from criminal offenses committed by the criminal organization; or

5. location of any victims of the criminal organization with their physical integrity preserved. (Id. art. 4.)

Controlled response refers to the delaying of police or administrative action against a criminal organization’s activities or other actions linked to them, provided that the activities are kept under observation and monitoring so that the authorities can carry out the legal measure against the group with the most effective timing for the production of evidence and collection of information (id. art. 8).

The infiltration of a criminal organization by police agents depends upon judicial authorization, which will define its limits (id. art. 10).