By Manassés Lopes

The president of a company receives a summons. There is a criminal lawsuit for an environmental crime, and his name appears in the indictment. He did not operate the industrial plant, did not make the technical decision that caused the damage, and was not at the site of the event. The accusation targets him for one reason only: he holds a management position. The indictment treats his position in the organizational chart as if it were, in itself, the criminal conduct.

This scene summarizes the most sensitive point regarding the criminal liability of legal entities in Brazil. On the one hand, the Supreme Federal Court has consolidated the principle that a company can be sued alone, without requiring the simultaneous prosecution of a natural person. On the other hand, the same Court has erected a rigorous filter against accusations that impute the crime to a director simply because of the position they hold. These are two seemingly contradictory movements, and it is precisely in the tension between them that the fate of a large part of the defense is decided.

Understanding this dual aspect is essential for anyone who works with legal entities and their administrators every day within this space.

Criminal liability of legal entities without double jeopardy.

For years, the so-called theory of double imputation prevailed, then adopted by the Superior Court of Justice, according to which the company could only be prosecuted if, in the same act, the responsible individual was identified and prosecuted. The logic was symmetrical, but it made prosecution in complex corporate structures unfeasible.

The Supreme Court dismissed this requirement in the judgment of RE 548.181 , reported by Justice Rosa Weber. The First Panel ruled that Article 225, paragraph 3, of the Constitution does not condition the criminal liability of a company for environmental crimes on the simultaneous prosecution of the individual. The constitutional provision, the court interpreted, does not impose double jeopardy.

Contemporary corporate organizations are characterized by decentralization and the diffuse distribution of responsibilities, which makes it difficult, and sometimes impossible, to individualize conduct in a single concrete person. Making the punishment of the company conditional on the identification of the individual would, in practice, open a path to impunity.

According to the lawyer, the first consequence is direct. The criminal liability of legal entities has gained autonomy. Defending the company by claiming that the indictment did not name the responsible physical agent is no longer a sufficient argument, because the collective entity is liable for its own actions.

The prohibition of strict criminal liability

The autonomy of the criminal liability of legal entities, however, did not lower the standard of imputation for individuals. Brazilian criminal law does not admit strict liability, and this principle governs how a director can or cannot be charged.

The most illustrative precedent is HC 83.554 , reported by Minister Gilmar Mendes, concerning a leak in a Petrobras oil pipeline. The Second Panel recognized the absence of a causal link between the environmental damage and the conduct of the manager, noting that there were managerial and operational levels responsible for overseeing thousands of kilometers of pipelines. The company's damage is not the same as the conduct of its manager.

The ruling highlighted a distinction that deserves the attention of criminal lawyers. In a risk society, the dangers inherent in business activity cannot be automatically transferred to the criminal liability of the administrator. To attribute exactly the same risks to the individual and the legal entity is to erase the boundary between two distinct legal subjects.

The reading is clear. Imputing a crime to a manager requires demonstrating a causal link and concrete conduct, whether by action or omission. Without this, the accusation runs up against the prohibition of strict liability, and this is a first-rate defense argument.

The ineptitude of the generic accusation against the leader.

It is in criminal proceedings that this substantive principle becomes an instrument. The prohibition of strict liability translates into a formal requirement of the indictment, and its absence leads to its invalidity.

In HC 192.204 , also reported by Gilmar Mendes, the Second Panel dismissed a criminal case because the indictment had been brought against the president of a business corporation solely on the basis of his management position. There was a lack of factual narrative describing any specific, individualized, and classifiable act or omission on his part. The accusation based solely on his holding of the position was rejected as disguised strict liability.

The same reasoning appears in AP-QO 1.005 , reported by Minister Edson Fachin. The Second Panel recognized the ineptitude of the indictment that imputed the environmental crime simply because of the status of a shareholder. The document did not establish the indispensable link between the defendant's conduct and the criminal events, in violation of Article 41 of the Code of Criminal Procedure , directly prejudicing the right to a full defense. The dismissal was extended to the co-defendant in the same situation, by virtue of Article 580 of the same code.

For those defending administrators, this is the most fertile battleground. The question to ask in the face of each accusation is objective: does the document describe what the client did, or only the position they hold? When the accusation is based on the position, and not on the conduct, there is solid grounds to argue for procedural defect.

The limits of habeas corpus injunctions

It would be a mistake, however, to interpret these precedents as a license to dismiss all criminal proceedings against executives. The Supreme Court itself sets the limits of this remedy, and ignoring them weakens the defense.

In HC 128.435 , reported by Rosa Weber, the First Panel reaffirmed that the dismissal of criminal proceedings is an exceptional measure. At the time of receiving the indictment, exhaustive examination of the evidence is not required; the formal validity of the document and the presence of indications of authorship and materiality are sufficient. Habeas corpus does not allow for an in-depth re-examination of facts and evidence, and the writ of mandamus cannot serve as a substitute for the appropriate appeal.

The methodological consequence is important. The defense requesting the dismissal of the case needs to demonstrate, in the indictment itself, the absence of an individualized narrative. It is not enough to allege weak evidence or to maintain that the client is innocent, because this depends on investigation and falls outside the narrow scope of habeas corpus. The winning argument is that of formal ineptitude, not that of insufficient evidence.

Herein lies the tension that the issue has not yet fully resolved. The boundary between a generic accusation, which is inept, and a concise but sufficient accusation, which is valid, continues to be constructed on a case-by-case basis. This debate is not closed, and it is in this debate that the lawyer's technique makes a concrete difference.

When does an environmental disaster redefine jurisdiction?

Major corporate disasters add another layer to this picture, because they shift the discussion to the field of competence and the scope of collective liability.

In the RE-AgR 1.378.054 case , concerning the Brumadinho dam collapse, Justice Edson Fachin led the Second Panel to recognize the jurisdiction of the Federal Court. The alleged conduct, which involved supposed false statements about the dam's stability and omissions regarding the national dam safety policy, directly offended the supervisory activity of a federal agency, thus triggering the application of Article 109, item IV, of the Constitution. Jurisdiction was derived from the elements of the indictment itself, without violating the accusatory system.

This case illustrates what is at stake in the most serious scenarios. Aggravated homicide and environmental crimes coexist in the same document, corporate criminal liability intertwines with that of administrators, and the determination of the competent court influences the entire strategy. Those involved in these disputes need to read the indictment also as a map of jurisdiction, and not merely as a description of the facts.

The postgraduate program in Criminal Law and Criminal Procedure at IDP

This set of issues requires simultaneous mastery of two areas that are usually studied separately: substantive criminal law, with the theory of corporate criminal liability, causal link, and the prohibition of strict liability; and procedural law, with the indictment's inadequacy, the limits of dismissal, and the rules of jurisdiction. Whoever masters only one side loses half the case.

The Postgraduate Program in Criminal Law and Criminal Procedure at IDP was designed to integrate these plans. The program is organized into two axes: one focused on the fundamentals and procedure of criminal law, including criminal action, the accusatory system, the evidentiary system, and the chain of custody; and another dedicated to substantive criminal law, penal execution, criminology, and economic crimes.

The faculty includes prominent figures at the forefront of these discussions, such as Orlando Faccini, PhD in criminal law and judge in Rio Grande do Sul; Riccardo Cappi, PhD in criminology and full professor at the State University of Bahia; and Felipe Carvalho, PhD in criminal law, specialist in corruption and organized crime, and partner at Mudrovitsch Advogados.

The classes are 100% online and live, held every two weeks, a format that respects the routine of those who practice law and study at the same time. The course comes at a time when the criminal liability of legal entities has ceased to be a niche topic and has become a daily occurrence in criminal litigation.

Manassés Lopes da Silva is a business lawyer and university professor. He holds a Master's degree in Law from IDP/SP, a specialization in Civil Procedural Law from IDP, and an LLM in Processes and Appeals in Superior Courts. Email: contato@manasseslopes.com