White-collar crime and Corporate Investigations Update

Court decision published by the STF annuls Moro’s sentence in the Banestado case

On December 27,2020, the court decision was published by the 2nd Panel of the Supreme Federal Court, which annulled the condemnatory sentence issued by the then judge Sergio Moro in the Banestado case, a 2003 Federal Police operation (RHC 144.615).

In August 2020, the collegiate understood that there was a violation by Moro of the principle of impartiality that is required to be respected by the magistrates. There was a tie in the trial, which was resolved by applying the principle of in dubio pro reo. Gilmar Mendes and Ricardo Lewandowski claimed that the then judge was not impartial when accepting the testimony of Alberto Yousseff’s award-winning plea and for having attached documents to the case file after the defense’s final allegations. The reporting minister, Luiz Edson Fachin and Justice Carmen Lúcia understood, however, that Moro was not hindered and that, although questionable the limits of his instructive powers, the sentence should not be annulled for breach of the principle of impartiality.

Impossibility of prosecuting based exclusively on the employee’s deposition

On December 16, 2020, the 5th Panel of the Federal Regional Court of the 3rd Region granted an order to determine the barring of the criminal action related to a severance of Operation Lava Jato (HC n.º 5004895-77.2020.4.03.6181) in the State of São Paulo, since the complaint was based on the testimony of an employee, with no other evidence to corroborate the content of the complaint. The criminal action dealt with an alleged corruption scheme in the São Paulo metro works.

In the caselaw, the judge rapporteur Paulo Fontes, based on article 14, §16 of Federal Law 12.850/13, introduced by the “Anticrime Package”, points out that the testimony of an employee, alone, cannot justify the adoption of serious measures. This understanding was already being adopted by the Federal Supreme Court.

Bill that modifies the crime of malicious prosecution is sanctioned

Bill n.º 2810/20 that alters the caput of art. 339 of the Penal Code, presented by congressman Arthur Lira, leader of the Progressive Party, was sanctioned on December 21, 2020, becoming effective with the following wording: “Giving cause to the initiation of a police investigation, of a criminal investigative procedure, judicial process, disciplinary administrative procedure, civil investigation or administrative misconduct action against someone, attributing him a crime, ethical-disciplinary infraction or an unreasonable act of which is known he/she is innocent”.

The objective element of the type has been changed, since “police investigation” has been replaced by “police inquiry” and “criminal investigative procedure” and “administrative investigation” by “disciplinary administrative process”, making the crime of libelous reporting less comprehensive. The new wording of the type expands the possibilities of incidence of crime including, in addition to the imputation of criminal offenses, the ethical-disciplinary infraction and the improper acts.