BRAZIL Trends and Developments Contributed by: Valeska Teixeira Zanin Martins, Carla Costa Carneiro da Silveira, Carlos Henrique Sousa Dias, João Victor Orlandi Zanetti Della Penna and Renato Bastos Abreu, Zanin Martins Advogados
Plea bargaining and the boundaries of due process Around the same time as the Anti-Corruption Law, the Organised Crime Law (Law No. 12.850/2013) was enacted, introducing the mechanism of plea bargain - ing ( colaboração premiada ). This tool became essen - tial for uncovering unlawful practices involving both the private and public sectors. Its adoption provided more effective means for identifying, investigating and sanctioning complex criminal behaviour, especially where secrecy and hierarchical structures hindered detection. However, the use of plea bargaining requires cau - tion and proportionality. While it represents progress in criminal prosecution, its indiscriminate applica - tion – particularly when linked to prolonged pre-trial detention – has provoked strong criticism regarding its compatibility with constitutional guarantees of due process and the presumption of innocence. Recent Brazilian experience, notably during Operation Car Wash (Lava Jato), revealed distortions in the prac - tical application of the instrument. One of the opera - tion’s pillars was the extensive use of plea bargains to expand investigations, justify precautionary meas - ures and ultimately secure convictions of individuals portrayed as “enemies”. The method often involved identifying individuals whose testimony aligned with the task force’s legal-political narrative, followed by escalating pressure through multiple investigations, coercive measures and preventive imprisonment – effectively transforming detention into a tool of psy - chological and physical coercion. Such practices subverted the constitutional logic of pre-trial detention, which should remain exceptional and never be used as an indirect means to extract confessions or co-operation agreements. The result was an inquisitorial environment where ends – the pursuit of truth and punishment – were used to justify illegitimate means, eroding the fundamental guaran - tees of a democratic criminal process.
The fight against corruption and organised crime can - not become an end in itself, detached from the consti - tutional boundaries of the rule of law. Investigative effi - ciency must never supersede legality, and the pursuit of results cannot transform criminal procedure into an instrument of exception. The integrity of methods must be preserved to protect the very notion of justice that the system aims to uphold. Accordingly, improving plea bargaining mechanisms requires reaffirming their ethical and legal limits, ensuring voluntariness, proportionality and respect for human dignity. Strengthening the institutional roles of the Public Prosecutor’s Office, the Judiciary and the legal profession is vital to guarantee that this instru - ment serves the public interest rather than punitive or political agendas. Conclusion The consolidation of corporate integrity in Brazil is an ongoing process. Existing legislation, combined with public policies promoting transparency and co- operation between the state and the private sector, provides a solid foundation for ethical and sustainable business practices. True progress, however, occurs when integrity ceas - es to be a mere formal requirement and becomes an intrinsic part of corporate identity. Companies that regard compliance as a strategic value strengthen not only their reputations but also their contribution to a fairer, more predictable and more competitive busi - ness environment. The consolidation of corporate integrity and the strengthening of control mechanisms must go hand in hand with the preservation of fundamental rights and guarantees, lest the logic of the Democratic State of Law be undermined. Ethics in criminal and administra - tive prosecution is inseparable from the business eth - ics promoted by compliance: the ends do not justify the means. Only when anti-corruption efforts are exer - cised within the bounds of legality and due process can we speak of a genuine culture of integrity – both public and private – in Brazil.
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