BRAZIL Trends and Developments Contributed by: Flávia Leardini, Paula Moreira Indalecio, Rogério Taffarello and Philippe Alves do Nascimento, Mattos Filho
of arrest orders, search and seizures, breaching bank secrecy, phone tapping or asset freezing). At the end of the pre-trial investigation, the files are sent to the Public Prosecutor’s Office, which will then assess the evidence and, if it considers there to be probable cause, either file criminal charges before the court or dismiss the investigation. To effectively combat fraud and corruption affecting the government, the Brazilian Constitution designed a complex multi-agency system to fight corruption in the administrative sphere, known as the “U-System”. This system comprises the Comptroller-General of the Union (CGU), the Solicitor-General of the Union (AGU), and the Federal Audits Court (TCU), whose adminis - trative enforcement actions can be – and often are – used by criminal prosecutors to help detect and/or gather evidence of misconduct to subsequently bring criminal charges before the courts. There are potential agreements that may be nego - tiated with the Public Prosecutor’s Office to avoid prosecution and conviction. Misdemeanours may be resolved through the payment of small fines proposed by prosecutors before potentially filing an indictment and without requiring any admission of guilt (Article 76, Law 9,099/1995). Following a formal indictment, and still in relation to relatively low-level criminal cases, it is possible to agree to suspend the lawsuit under certain conditions to be fulfilled by the defend - ant, future compliance with which may lead to the extinction of the case without sentencing (Article 89, Law 9,099/1995). For mid-level offences, the Public Prosecutor’s Office may propose a non-prosecution agreement before filing formal charges (Article 28-A, Code of Criminal Procedure), provided that the inves - tigated party confesses to the unlawful act and repairs the damage caused by the offence. A more complex collaboration agreement with the Public Prosecu - tor’s Office, through which the defendant must admit misconduct and present self-incriminating evidence and evidence against others (Articles 3-A to 7, Law 12,850/13), may apply to more serious cases where there have been conspiracies and/or organised crime. All the aforementioned agreements may be and are often used in white-collar crime cases.
During the criminal lawsuit, the victim – either an individual or a legal entity – can formally act as an assistant to the Public Prosecutor’s Office, presenting written and oral arguments when applicable, through - out the proceedings, as well as conducting the cross- examination of witnesses and defendants. Once the case has been decided by the lower court, both the defence and the prosecution can appeal and request a second appraisal of the entire case. The appeal is heard by a state or a federal court of appeal. After the appellate decision, it may still be possible for the parties to file a special appeal to the Superior Court of Justice (STJ) (if there is a clear violation of a federal law) or to the Supreme Federal Court (STF) (if there is a clear violation of the Constitution), subject to certain additional admissibility and procedural requirements. The Present Scenario and Years Ahead Based on the authors’ experience and on current legal and political debates, it is possible to anticipate cer - tain trends in the enforcement of white-collar crimes in Brazil, which are likely to become particular focuses for local authorities, defence counsel, and local and foreign businesspersons conscious of legal risks. The aftermath of Lava Jato marked a watershed moment in Brazil’s approach to white-collar crime. While the operation brought unprecedented attention to corruption and led to significant legal reforms — including the strengthening of plea deals’ mechanisms and the introduction of new anti-corruption statutes — it also exposed the need for more balanced and legally robust enforcement strategies. The STF and STJ have since issued key rulings on due process, the limits of plea deals, and the protection of defend - ants’ procedural rights, leading to the annulment of several high-profile convictions. These decisions have prompted a recalibration of enforcement, with authori - ties now emphasising legal certainty, proportionality, and the avoidance of excessive pre-trial detentions or media-driven prosecutions. On the other hand, in cer - tain cases, annulments have been criticised by some commentators as not following established case law and being ruled by a single Justice instead of being reviewed by a panel of Justices. In fact, what has been perceived as an excessive number of single-judge decisions, to the detriment of collegiate decisions, has
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