New rule allows the National Treasury Attorney’s Office to participate in criminal actions

In November 2021, Brazilian Procuradoria Geral da Fazenda Nacional (National Treasury Attorney’s Office – “PGFN”) issued Ordinance nº 12,072, ruling new guides to its acting on criminal procedures.

This Ordinance foresees a term of 60 days for the public attorney to inform the Federal Prosecutor’s Office regarding the occurrence of a potential criminal act against the Public Treasury. This term begins only after investigative diligences taken by the office are completed. Exception made when there is no need for further diligences, when the term is initiated after the knowledge of the fact.

However, since the PGFN works mostly with judicial actions, it is more often to see the communications made by other public entities, such as Brazilian IRS. For this reason, the norm exempts the attorney to inform the case, if there is a previously communication for the same facts by other authorities.

The more controversial point of the Ordinance is the possibility for the PGFNto participate in criminal procedures directly. Article 5 sets forth the possibility of the Office to present an appeal, in case Federal Prosecutor dismisses its representation for the opening of a criminal case, which means it can ask for a superior instance to analyze its representation.

Article 6 allows the participation of the Office as an accusation assistant for the prosecution. The assistance in criminal cases is ruled by article 268 of the Brazilian Criminal Procedure Code, which authorizes the victim of a crime to directly participate in a criminal lawsuit, helping the prosecution to obtain a conviction in case of a felony.

There has always been discussion regarding the possibility of allowing public entities to participate in criminal procedures as assistants to the prosecution. There are several judicial decisions in both ways. One of the most iconic cases is the participation of Brazilian public company Petrobras in lawsuits derived from Operation Lava-Jato (Car Wash).

Those in favor of it base themselves on the principle of public interest, especially because it could help the State to recover money, mitigating its losses. According to these understandings, the Public Treasury would have the obligation to use all means necessary to recover the money, since it would benefit all.

For those against this assistance, the main argument is the fact that the Federal Prosecutor and the DA have already the obligation to protect public interest, so it would not be necessary to use another public entity to pursue the same purpose. Using those public attorneys for other activities than what they are meant to be used (tax actions), paradoxically, would represent that the State would be spending even more to obtain a similar result.

Furthermore, the criticism also lies on the fact that it would mean a disparity between prosecution and the defendant, since there would be two public offices with the full power of the State persecuting an individual.

As last, there will always be the question if this assistance would only be a way for the State to pressure the citizen to pay its taxes by using the criminal system, which is illegal and unconstitutional.