Brazilian Federal Public Prosecutor Office issues new guidelines on the negotiation of leniency and collaboration agreements in criminal ...
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15 May 2020
Brazilian Federal Public Prosecutor Office issues new guidelines on the
negotiation of leniency and collaboration agreements in criminal
investigations
The Brazilian Federal Public Prosecutor recently issued welcome guidance to public
prosecutors regarding the negotiation of leniency agreements involving individuals as well as
other relevant aspects in criminal investigations
One of the greatest challenges in negotiating leniency agreements in Brazil is related to
the different laws providing for multiple investigation and accountability spheres, in
which different authorities can simultaneously investigate and punish companies and
individuals for the same facts. In Brazil, only individuals may be held criminally liable for
wrongdoings, with very few exceptions expressly provided by Law 1. Notwithstanding, the
legal entity might still face a broad variety of repercussions in the civil and administrative
spheres, especially because of the strict liability provided by the so called “Anticorruption
Law” or “Clean Companies” Law (Law no. 12,846/2013), which, in turn, do not apply to
individuals, but only to legal entities.
Although the Anticorruption Law has brought a great many benefits to prevention and
combating corruption – including the leniency agreement 2 – it did not provide for the
possibility of individuals entering into or adhering to collaboration agreements signed by
the legal entity, resulting in great difficulties in converging companies and individuals’
interests: on one side, the company that is willing to cooperate with the authorities might
need to rely on collaboration offered by individuals involved in the wrongdoings; on the
1
Unlike common law jurisdictions, the so-called civil law systems, with a few exceptions, generally do not apply criminal liability to
legal (as opposed to natural) entities. As such, even if a company is the ultimate beneficiary of a corrupt act, such as bribery, it
cannot be held criminally liable in Brazil.
2
Before the enactment of the Law 12,846, the negotiation of leniency agreements was restricted to antitrust infringements based
on the Law 12,529/2011, which provided for the possibility of companies and individuals entering into leniency and collaboration
(cease and desist) agreements with the Brazilian antitrust authority - the Administrative Council for Economic Defense (CADE, in
its Portuguese acronym).
Lefosse Advogados
São Paulo Rio de Janeiro
Rua Tabapuã, 1227 14º andar Avenida Presidente Wilson, 231 conj. 2703
04533-014 São Paulo SP Brasil 20030-905 Rio de Janeiro RJ Brasil15 May 202015 de maio de 2020
other side, the Anticorruption Law do not offer individuals incentives to disclose any
facts, since they could be held criminally liable for the irregularities reported under that
Law.
In this scenario of coexisting and not necessarily converging laws, the Brazilian
ecosystem for preventing and combatting corruption ends up providing for different
mechanisms of collaboration agreements to be entered by legal entities and individuals,
sometimes with different authorities, but based on the same facts. While individuals are
entitled to negotiate plea bargain agreements to mitigate their criminal exposure 3 and,
more recently, non-prosecution agreements 4 with the Public Prosecutors, legal entities
that decide to cooperate with the investigations should first accomplish the inglorious
task to convince its own employees to cooperate, in order to enable the negotiation of
leniency or collaboration agreements with the Public Prosecutor or other possibly
multiple relevant authorities, depending on the legal qualification of the facts.
This lack of unity has also implications to the Public Prosecutor’s Office, whose different
local bodies have, according to the Brazilian Federal Constitution, independence to carry
on their investigations. In this scenario, it is not unusual to have different Public
Prosecutors investigating the same facts, especially in situations where the misconducts
occurred all over the country or, at least, in different municipalities or government
spheres.
As an attempt to reduce legal uncertainties on the negotiation of leniency and
collaboration agreements, the Brazilian Federal Public Prosecutor's Office (MPF – 5th
CCR) 5 issued the new guidance for public prosecutors – the Technical Note 01/20
(“Technical Note”) 6 - with specific highlights on the possibility of individuals adhering to
3
Such as the Law 9,605/98 (the Environmental Crimes Law).
4
In Portuguese, “Acordo de Não-Persecução Cível”, provided by the Law 13,964/2019, known as the “Anti-Crime Package” proposed
by former Public Security and Justice Minister Sergio Moro.
5
The Technical Note was prepared by the Anti-Corruption Chamber (5CCR), through the Permanent Advisory Committee on
Leniency and Collaboration Agreements –a body of the Federal Prosecutor’s Office aimed at improving and developing new
strategies and guidelines for leniency and collaboration agreements, as well as procedures for combatting corruption, money
laundering and related practices.
6
Available at http://www.mpf.mp.br/pgr/documentos/05.05.RedaofinalNTALcomAdesoesLTIMAVERSO.pdf, access on May 8,
2020.
Lefosse Advogados
São Paulo Rio de Janeiro
Rua Tabapuã, 1227 14º andar Avenida Presidente Wilson, 231 conj. 2703
04533-014 São Paulo SP Brasil 20030-905 Rio de Janeiro RJ Brasil15 May 202015 de maio de 2020
leniency agreements entered by the companies. According to the MPF, the purpose of
the Technical Note is to standardize civil and criminal activities carried out by the Public
Prosecutors and, therefore, improve efficiency of the leniency and collaboration
agreements in both spheres.
Although the individuals’ adhesion to corporate leniency and collaboration agreements
entered with the Public Prosecutor’s Office already was, in fact, a consolidated practice 7,
the Technical Note strengthened this possibility and its relevance to ensure maximum
cooperation within these agreements. Indeed, the joint negotiation (even if not
simultaneous) with legal entities and corresponding individuals significatively increases
the knowledge of the authorities to the investigated irregularities. On the other hand, it
assigns to the adhering individuals the rights and obligations of the leniency agreement 8,
with the possibility of extending such benefits to the criminal sphere. This increases the
possibility of legal entities entering into collaboration agreements with the authorities,
since it grants incentives for individuals to cooperate and remove from legal entities the
feeling of pushing its employees ‘under the bus’.
Other relevant outcomes on individual’s adhesion to corporate leniency agreements
highlighted in the Technical Note, are:
• Decrease of time and bureaucracy in the negotiation proceeding of collaboration
agreements, since the adhesion to a corporate leniency agreement would remit
to and be signed on the same legal grounds than the latter; this means that the
individuals’ adhesion would be part of the same framework previously established
by the leniency agreement 9 ;
• Clear guidelines on solving possible conflicts of jurisdiction between two or more
different Public Prosecutor’s Offices entitled to investigate the same facts, with
the reinforcement of the 5th CCR – MPF’s jurisdiction to solve these conflicts;
• Possibility of having other Public Prosecutors’ Offices (e.g. state Public
Prosecutors) voluntarily adhering, at any time, to leniency or collaboration
7
Such as the leniency and collaboration agreements entered with Andrade Gutierrez, Braskem, Camargo Correa, SOG, Odebrecht,
J&F and others.
8
This is particularly relevant with respect to the obligation to cooperate with the authorities. This means that the adhering individuals
must fully cooperate with the investigations, giving detailed information on the misconducts in order to obtain the corresponding
benefits of the leniency agreement.
9
It is worth noting, however, that the adhesion must be also submitted to homologation by the 5th CCR.
Lefosse Advogados
São Paulo Rio de Janeiro
Rua Tabapuã, 1227 14º andar Avenida Presidente Wilson, 231 conj. 2703
04533-014 São Paulo SP Brasil 20030-905 Rio de Janeiro RJ Brasil15 May 202015 de maio de 2020
agreements previously entered by the MPF. This allows the adhering Public
Prosecutor to use the evidences on facts covered by these agreements against
other companies or individuals;
• Strengthening of the functional independence, unity and indivisibility of the Public
Prosecutor, i.e., entitling the Public Prosecutor that enters into an agreement to
act as the messenger of the public administration and, therefore, reducing the
risks of having agreements challenged by other state or federal local bodies of
that organization;
• Offering isonomic and proportional treatment in benefits granted to the
collaborating parties, considering the circumstances of each individual, the
relevance and details of the facts disclosed, the corroborating documents
presented etc. By providing clear parameters for granting benefits to new
adhering individuals, the Public Prosecutor increases legal certainty and equality in
the negotiation of collaboration agreements.
The initiative to provide further written guidelines on leniency and collaboration
agreements is notable and extremely important to increase legal certainty in the
negotiation of these agreements – even if it is just to reinforce some of the practices
already adopted by the Public Prosecutors in previous agreements, such as the possibility
of individuals adhering to companies’ agreements. Having written guidelines are relevant
not only to drive the negotiations with Public Prosecutors, but may also act as relevant
instruments for other authorities entitled to negotiate collaboration agreements 10.
These guidelines, however, lack of more clear parameters in relevant aspects, in
particular those relating to the so-called isonomic and proportional treatment in benefits
granted to the individuals that decide to collaborate with the investigations. The
Technical Note did not provide further parameters on this “isonomic” treatment; instead,
it states that the adhering conditions should be assessed on a case-by-case basis,
negotiating possible legal benefits in both the civil and criminal spheres.
The law-practicing community awaits to see how these guidelines will be enforced in
practice, expecting that the changes present themselves as effective improvements in
10
Such as the Brazilian Security Exchange Comission (Comissão de Valores Mobiliários – CVM, in its Portuguese acronym), the Brazilian
Central Bank (Law 13,506/2013), among other relevant authorities according to the jurisdiction rules provided by the Law 12,846
Lefosse Advogados
São Paulo Rio de Janeiro
Rua Tabapuã, 1227 14º andar Avenida Presidente Wilson, 231 conj. 2703
04533-014 São Paulo SP Brasil 20030-905 Rio de Janeiro RJ Brasil15 May 202015 de maio de 2020 the transparency and legal certainty of non-prosecution procedures carried out by the authorities. For further information, please contact: José Carlos Berardo zeca.berardo@lefosse.com Tel.: (+55) 11 3024 6244 Ludmila Groch ludmila.groch@lefosse.com Tel.: (+55) 11 3024 6464 Juliana Maia Daniel Pinheiro juliana.daniel@lefosse.com Tel.: (+55) 11 3024 6194 Lefosse Advogados São Paulo Rio de Janeiro Rua Tabapuã, 1227 14º andar Avenida Presidente Wilson, 231 conj. 2703 04533-014 São Paulo SP Brasil 20030-905 Rio de Janeiro RJ Brasil
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