Law 12.850/13 , related to plea bargain agreements, was created with the intention of enabling effective practices and instruments for obtaining evidence, aimed at combating organized crime.
Although the aforementioned law already exists, The concept of plea bargaining only gained notoriety in a recent event in Brazilian history, notably known as Operation Lava Jato..
The action generated numerous debates in academic and legal circles, and was constantly cited by the national press and the general public, stemming from various criminal investigations involving high-ranking politicians.
The term "delação premiada" (plea bargaining), which should not be confused with "cooperação premiada" (plea bargaining agreement), refers to one of its forms, which has gained considerable popularity in investigations of criminal gangs and organized crime, widely publicized by the media, despite the problems and criticisms that surround it.
But what is a plea bargain agreement?
A plea bargain is a legal agreement that seeks to ensure the effectiveness of criminal prosecution, including through highly personal acts. It essentially consists of a means of obtaining evidence in a criminal investigation.
Obtaining evidence through this method is also treated as a special investigative technique . In this technique, the State uses incentives (and legal benefits) to reward the criminal offender, provided they are willing to cooperate with the process and investigation, aiming to identify co-perpetrators and accomplices in crimes, identify victims, and even recover assets.
It was enshrined in Article 3, I, and Article 3-A and following articles of Law No. 12.850/13, popularly known as the "Law on Criminal Organizations":
"Article 3. At any stage of the criminal prosecution, the following means of obtaining evidence shall be permitted, without prejudice to others already provided for by law: I – plea bargaining."
"Article 3-A. The plea bargain agreement is a procedural legal transaction and a means of obtaining evidence, which presupposes public utility and interest. (Included by Law No. 13.964, of 2019)"
According to Suxberger, the concept of award-winning collaboration can be defined as follows :
"A plea bargain is an agreement made between the prosecutor and the defense, aimed at undermining the defendant's resistance and securing their compliance with the accusation, with the objective of facilitating criminal prosecution in exchange for benefits to the collaborator, reducing the punitive consequences of their criminal conduct."
Thus, this is an important and relevant procedural mechanism between the Public Prosecutor's Office/police and the investigated party , where, if the legal requirements and assumptions are met, there will be some reward, which can range from a reduction in sentence to the non-filing of charges, in exchange for information useful for dismantling criminal organizations.
History
The plea bargain agreement has undergone a visible evolution over the years: initially, the agreement was restricted to reducing sentences. Currently, even judicial pardon is possible, which, as is known, is a cause for the extinction of punishability.
Although all the prominence surrounding plea bargaining has emerged from the recent past, through "rewarded denunciation," its roots point to some existing provisions in the Philippine Ordinances (1603), which allowed for plea bargaining.
In the Mérida Convention (Decree 5.687/06) and the Palermo Convention (Decree 5.015/04), the institute only regulated the denunciation of co-authors and accomplices.
Current Legislation
Today, its main regulations are set out in Law 12.850/13 and codified by Article 3-A, popularly known as the Law on Criminal Organizations, and improved by Law 13.964/19, popularly known as the "Anti-Crime" Law.
The "Anti-Crime" Law introduced Article 3A into Law 12.850/13, which allows us to define its concept and classification, in accordance with understandings previously consolidated by legal scholars.
The proposed topic is also covered by special legislation, such as Law 8.072/90 in its Article 8 (Law on Heinous Crimes), Law 9.613/98 in its Article 1, §5, Law 11.343/06 in its Article 41, Law 9.807/99 in Articles 13 and 14, and internationally, by the Palermo Convention and the Mérida Convention.
Who can enter into a plea bargain agreement?
For collaboration to be effective, the investigated party must demonstrate at least one of the hypotheses foreseen in Article 4 of Law 12.850/13:
- The identification of the other co-authors and participants in the criminal organization and the criminal offenses they committed;
- the revelation of the hierarchical structure and division of tasks within the criminal organization;
- the prevention of criminal offenses arising from the activities of the criminal organization;
- The full or partial recovery of the proceeds or profits from criminal offenses committed by the criminal organization;
- The location of any potential victim while ensuring their physical integrity is preserved.
If one or more of the described hypotheses are evidenced, the bonus benefit may be granted in accordance with the provisions of Article 4 of Law 12.850/13:
- judicial pardon, resulting in the extinction of punishability (caput);
- reduction of up to 2/3 of the custodial sentence (caput);
- Substitution of imprisonment with a non-custodial sentence (caput);
- Procedural immunity, in the event that the Public Prosecutor's Office fails to file charges, if the proposed collaboration agreement refers to an offense of which it had no prior knowledge, and the collaborator is not the leader of the criminal organization and/or was not the first to provide effective collaboration (§4);
- reduction of the sentence by up to half, in case of collaboration after sentencing (§5);
- progression of regime, even in the absence of objective requirements, in case of collaboration after sentencing (§6).
How does reward-based collaboration work?
For some, the nature of the rewarded collaboration is twofold: by contributing, under the terms of Law 12.850/13, with evidence and information relevant to the criminal prosecution , the collaborator will also be entitled to reward benefits.
Thus, in addition to assisting in the investigation and enabling the proper accountability of the criminal organization and its agents, the collaborator may also use this legal mechanism as an instrument for their own defense.
For a plea bargain agreement to begin, the proposed agreement must be formally submitted to the Public Prosecutor's Office.
Subsequently, Law 12.850/13 regulates, in its Article 3-B, the procedure that will be initiated:
Article 3-B. The receipt of a proposal for the formalization of a collaboration agreement marks the beginning of negotiations and also constitutes a confidentiality milestone. The disclosure of such initial negotiations or of any document formalizing them, until the confidentiality is lifted by a court decision, constitutes a violation of secrecy and a breach of trust and good faith. (Included by Law No. 13.964, of 2019)
§ 1 The proposed plea bargain agreement may be summarily rejected, with due justification, and the interested party shall be notified. (Included by Law No. 13.964, of 2019)
§ 2. If there is no summary dismissal, the parties must sign a Confidentiality Agreement to continue the negotiations, which will bind the bodies involved in the negotiation and prevent subsequent dismissal without just cause. (Included by Law No. 13.964, of 2019)
§ 3 The receipt of a collaboration proposal for analysis or a Confidentiality Agreement does not, in itself, imply the suspension of the investigation, except by agreement to the contrary regarding the filing of precautionary and protective criminal procedural measures , as well as civil procedural measures permitted by the civil procedural legislation in force. (Included by Law No. 13.964, of 2019)
§ 4. The plea bargain agreement may be preceded by an investigation when there is a need to identify or supplement its object, the facts narrated, its legal definition, relevance, usefulness, and public interest. (Included by Law No. 13.964, of 2019)
§ 5. The terms of acceptance of the collaboration proposal and confidentiality agreement shall be drawn up by the contracting party and signed by him, the collaborator, and the lawyer or public defender with specific powers. (Included by Law No. 13.964, of 2019)
§ 6 In the event that the agreement is not concluded at the initiative of the party entering into the agreement, the party may not use any of the information or evidence presented by the collaborator, in good faith, for any other purpose. (Included by Law No. 13.964, of 2019)
Thus, once the negotiation phases are over and the legal requirements are met, the plea bargain agreement will be forwarded to the competent judge, who, after hearing (confidentially) the collaborator and verifying the requirements, will decide whether or not to approve it.
Furthermore, it is important to highlight that the settlement proposal may be implemented even after a judgment (at any stage of the proceedings).
Distinction between plea bargain agreement and plea bargaining
It is important to emphasize the correct identification of the legal concepts of plea bargaining and plea bargaining. Although similar, there are distinct structural elements between these two legal concepts.
"Plea bargaining" should be interpreted broadly and understood as a general category . "Confession," on the other hand, should be understood as one form of cooperation, and therefore a specific type , in the strict sense.
These distinctions in concepts are primarily highlighted by legal scholars.
According to Renato Brasileiro de Lima, an author who confesses to committing a crime without identifying their accomplices, but indicates ways to recover the proceeds of the crime, does not engage in plea bargaining, despite collaborating in the criminal prosecution, and in this case, one could speak of a plea bargain agreement.
When the same collaboration is carried out, confessing not only involvement but also pointing out the other participants in the criminal organization, it must be referred to as "whistleblowing," hence the term "species," while collaboration would be the "genus" and have a broader meaning.
The Supreme Court's view of plea bargaining.
The effects of ratifying a plea bargain agreement were addressed by the Supreme Federal Court in the judgment of Habeas Corpus No. 127.483/PR:
At that time, the Minister and then rapporteur Dias Toffoli asserted:
"The judicial approval of the collaboration agreement, since it involves the exercise of deliberation, is limited to verifying the regularity, voluntariness, and legality of the agreement, without any value judgment regarding the collaborator's statements."
In the same ruling, it emphasizes the principle of legal certainty and the protection of legitimate expectations :
" This makes it an unavoidable state obligation to honor the commitment made in the collaboration agreement, granting the stipulated reward, a legitimate consideration for the collaborator's fulfillment of the obligation ."
Similarly, Minister Luís Roberto Barroso highlighted:
“ If the State, through its prosecution body, enters into a plea bargain agreement that it, the State, deemed to be in its interest, obtains the information to punish more dangerous defendants or more serious crimes – and therefore benefits from the collaborator – and then fails to comply with what was agreed upon, it is a betrayal on the part of the State and a total demoralization of the plea bargain institution .”
The understanding established by the Supreme Federal Court is that the act of approving a plea bargain entitles the collaborator to receive the reward benefit, provided that the legal requirements in the criminal prosecution are met, achieving at least one of the expressly foreseen objectives, in accordance with the provisions of Law 12.850/13.
Considerations regarding plea bargaining
The importance of plea bargain agreements between suspects/accused and the Public Prosecutor's Office/police is evident as an effective mechanism in combating organized crime, provided that its legal requirements are observed, as stipulated in Law 12.850/13 (Law on Criminal Organizations).
This article does not claim to be exhaustive on the subject, given the diversity of understandings, criticisms, and debates that are routinely proposed regarding this institution.
However, the Supreme Federal Court and most legal scholars have clearly established the legality and validity of plea bargaining.
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Bibliographic references
LIMA, Renato Brasileiro de. Manual of Criminal Procedure: Evidence. v. ú. 2nd ed. Bahia, JusPODIVM, 2014.
SUXBERGER, Antônio. HG Plea Bargaining and the adoption of opportunity in the exercise of public criminal action. Cited in: VASCONCELLOS, Vinícius Gomes de. Plea Bargaining in criminal proceedings. 3rd edition, ed. Revista dos Tribunais, 2020, p. 64.
PINHEIRO, Ricardo Henrique Araújo. General aspects of the plea bargain agreement. Migalhas, 2022. Available at: https://www.migalhas.com.br/depeso/304382/aspectos-gerais-do-acordo-de-colaboracao-premiada
SERGIO, Bessa. Anti-crime law and the impossibility of applying benefits not foreseen by law to the collaborator. Migalhas, 2022. Available at: https://www.migalhas.com.br/depeso/336238/lei-anticrime-ea-impossibilidade-de-aplicacao-de-beneficios-nao-previstos-em-lei-ao-colaborador
BRAZIL. Law No. 12.850, of August 02, 2013. Defines criminal organization and provides for criminal investigation, means of obtaining evidence, related criminal offenses and criminal procedure.