Non-prosecution agreement under Law 13.964/2019 (“Anticrime Law”)

On January 23, 2020, Law nº 13964/2019, known as the “Anticrime Law”, came into force promoting significant changes to Brazilian criminal law.

One of the most relevant innovations brought to the Criminal Procedure Code is the possibility of a “Non-Persecution Agreement” (ANPP) between the Prosecution and the person being investigated, which will prevent  the case from being submitted to the Judiciary system.

It is a decriminalizing measure that only applies to non-violent crimes with a minimum penalty up to four years, provided that the measure is, in the understanding of the Prosecutor, sufficient for retributing and preventing the crime.

According to the new law, those are the conditions required for the ANPP to be signed, cumulatively or alternatively: a) admission of guilt; b) damage compensation, except in the impossibility of doing so; c) waiver of assets and rights; d) rendering of community services; e) payment of a fine; f) any other condition indicated by Prosecution, provided it is proportional to the imputed criminal offense.

The ANPP cannot be signed if the investigated is a repeat offender, nor if he has been benefited in the last five years with another agreement or any criminal transaction, or if the fact is a domestic violence related offence. After the agreement is signed, it will be submitted to judicial homologation.

This form of the agreement was already foreseen in Resolution 181 of the National-Council for the Public Prosecution, but it still lacked a normative basis. In order to guide its members about the application of the ANPP, the Attorney General’s Office, through the statement “PGJ-CGMP – LAW 13.964/19”, established that the proposal is an institutional prerogative and not an investigated part’s subjective right, that is, the Public Prosecutor can refuse to propose the agreement, even if the objective requirements set out in the law are fulfilled.

The Attorney General’s Office also established that the non-prosecution agreement is incompatible with heinous (or equivalent) crimes, even those committed without violence. Finally, the Public Prosecutor’s Office understands that, if the agreement is terminated due to any conduct attributable to the investigated part, his confession may be used as one of the elements to file an accusation.

On the first day that Law nº 13.964/19 came into force, the Sao Paulo Public Prosecutor’s Office executed a non-criminal prosecution agreement with two people accused of tax evasion. Under the terms of the agreement, the defendants admitted they misled the tax inspection, reducing the due amount of taxes. It was also decided they would have to render community services for eight months, in addition to paying a fine.