Economic Crimes and Reparation of Damages

 

The Federal Attorney General’s Office (AGU) filed four large administrative malpractice lawsuits against the country’s main contractors, their controllers and other individuals involved in the “Lava Jato Operation”, charging approximately R $ 23 billion, which would have been diverted from the state. According to technical reports from the Federal Court of Audit (TCU) and the Administrative Council for Economic Defense (CADE), contracts fraudulent by the cartel formed by Lava Jato exceeded PETROBRAS contracts by 17% which would cost in a truly competitive market.

In total, R $ 5.6 billion are charged for the losses that PETROBRAS suffered from the over-pricing of works contracted with the cartel that defrauded bids and another R $ 17.4 billion in fines that should be applied to the defendants. In addition to reimbursement to the treasury and the payment of fines, AGU also requests the application of other penalties provided for in legislation of administrative improbity, such as the prohibition of entering into contracts with the public power and the suspension of political rights.

As can be seen, it is a question of the concomitant civil repercussion of facts that also characterize illicit of a criminal and administrative nature.

This raises the debate about a very little studied prediction of the Brazilian criminal procedure, which since 2008, with the reform implemented by law 11.719, allows the criminal court to expedite this determination in the civil sphere by fixing a minimum reparatory amount in the sentence criminal conviction (article 387, IV, CPP).

The device is still the subject of many jurisprudential and doctrinal discussions, as it involves the definition of a civil indemnity in the scope of criminal proceedings, a task for which the magistrate who acts in the area historically is not accustomed. Although this activity does not run into greater difficulties in the case of classical pecuniary offenses, in the area of ​​economic crime it encounters substantial setbacks.

This reform is part of a wider context of global rediscovery and reassessment of the victim. The incentive to repair the damages caused by the crime has been covered by several international law diplomas and, in Brazilian Criminal Law, is provided in numerous provisions of the Penal Code and special laws. It so happens that the risk of the expansion of this political-criminal movement is the potential disrespect of the accused’s guarantees and disqualification of democratic institutions.

The fixing of minimum reparatory money in the criminal conviction does not distance us from the system of relative independence between criminal action and civil action, which is subordinated to that in which it says the existence of the fact and its authorship. One more exception is created, making the court title partly liquid for enforcement purposes. One of the impasses raised is that, although bound by the recognition of the duty to indemnify ( an debeatur ), the civil court would not be subject even to the minimum value ( quantum debeatur ), which could be fully rediscussed, which does not seem appropriate, the guarantors of the accused and observed the due legal process in the criminal process.

For the purpose of immediate execution, the arbitrated value reaches only those convicted of criminal action (even in solidarity), since only they have been assured the ample defense and the contradictory. The civil liability does not intervene in criminal proceedings and the liability of third parties should be relegated to the civil field.

The issue of individualization of damages ( pro rata conviction) is controversial. We think it should be analyzed on a case-by-case basis. If it is possible to identify the specific contribution of each defendant, the better. However, the law does not make this requirement; speaks of the global harm done to the offender by the crime, and not by this or that agent. In addition, as a rule, art. 264 of the CC, which provides for joint and several liability in the obligations in which “more than one creditor, or more than one debtor, each entitled or obligated to the entire debt”.

The device constitutes a material rule, which can not be retroacted to prejudice the defendant, so that it is only valid in proceedings subsequent to the entry into force of Law 11,719 / 08.

The STF manifested itself in this sense in the records of Criminal Review No. 5437 / RO, where the conviction of former federal deputy Natan Donadon was dismissed for the reparation of the damages caused by the crime of embezzlement in favor of the State of Rondônia, in the amount of more than R $ 1.6 million, since the standard is subsequent to the facts found and the very outbreak of the prosecution, and could not be retroactive to harm the defendant [1].

An explicit request by the prosecutor and a specific, albeit limited, instruction on the value of the damage is required, failing which the principle of correlation is violated [2] . We understand that the appropriate procedural time to make such a request need not be restricted to the complaint or complaint, since the amount (and not the existence) of the damage may still not be sufficiently clear or fully demonstrated. However, the request for minimum indemnity arbitration must be made in time to allow the defense to be exercised by the adversary.

In the judgment of AP 470 (“Mensalão”), the Federal Supreme Court had an opportunity to express its views on the matter, but did not settle the issue. In that case, the Public Prosecutor’s Office only formulated a formal request for reparation in the event of its final allegations. The position of Minister Rapporteur Joaquim Barbosa prevailed, which stated that the application of art. 387, IV, of the CPP, would not depend on the complaint to bring an express request to that effect. Nevertheless, in this particular case, the extreme complexity of the facts and the intense overlapping of the crimes would make it impossible to securely establish a value, albeit a minimum, for redressing the damages caused by the crimes committed by each of the defendants, which would require an action of a civil nature, with specific probation delay. Therefore, the non-fixation of the value was accompanied by a statement of reasons and demonstrated the difficulty of determining values ​​determined in cases involving economic crimes [3] .

 

Jurisdictional Service| Criminal Preceeding

Jurisdictional Service| Criminal Preceeding

 

Evidence of the amount of the damage can not be produced ex officio by the judge, otherwise there will be an offense against the accusatory system and assignment of a high burden to the defense. The magistrate, however, has the faculty to clarify the doubts that arise. The non-fixing of a specific value requires proper justification and constitutes an autonomous chapter of the sentence.

It should not be forgotten that there is also a public interest underlying the reparation of damages to the victims, in order to maintain the integrity of the legal system violated by the crime. This legitimates the Public Prosecutor’s Office to act as prosecutor in favor of the victim, but does not rule out the possible need for the person (individual or legal entity) to come to the file, spontaneously or through provocation, to provide the information to the appropriate jurisdictional service.

Not every offense will involve such an establishment, since the minimum value should be limited to fully verifiable material damages, since the investigation in criminal proceedings can not be subverted for the purpose of specific analysis of material damages and loss of profits.

In order to quantify the damages caused by the crime, the criminal judge must pay attention (1) to the legal interest protected by the criminal law, (2) correctly identify the offended and (3) what exactly the extent of the damage. Such parameters are especially important in the area of ​​Economic Criminal Law, where crimes reach supraindividual assets with multiple victims. Each crime will require its own criteria and, more often than not, in these incriminations, there will be a need for an expert report that demonstrates values ​​or express information of the body responsible for controlling the protected legal good (BACEN, CADE, CGU, COAF, CVM, DRCI, INSS, Internal Revenue Service, regulatory agencies in general, etc.), specifying specific figures that can be attributed individually to each of the defendants, who in turn can discuss their civil liability (guilt, solidarity, consent the offended, co-responsibility, etc.) at the opportune moment.

From the determination of the legal asset and the offended person, which is not necessarily the holder of the legal right, it will be possible to have a sense of where to seek clarification about the damage caused. Such searches are essential if erroneous criteria are not used for crimes of distinct categories ( eg tax crimes and economic crimes).

Ideally, this should be done already in the preliminary investigation, either by the judicial police or by the Public Prosecution Service (while the private investigation in Brazil is not yet formally admitted), since it is not necessary to obstruct the judicial investigation with this type of investigation, which could even give rise to partial correction.

Another point discussed in the reparation of damages is the possibility of qualification, as an assistant to the prosecution of legal entities [4] . In particular, we understand that the expansion of the role of art. 268 of the CPP is a measure of rationalization of criminal proceedings for the protection of fundamental rights, of which, moreover, legal persons are also recipients, insofar as they relate to the execution of their institutional activities. Thus, if the spirit of the reform implemented by Law 11,719 / 08 was to increase the participation of the victim, according to an international movement in this sense, there is no valid argument to prevent the legal person victim – and the company ( public or private) can be a victim of crimes, like PETROBRAS – if it qualifies as an assistant to the prosecution.

Lastly, it is assumed that the measure provides for a speedy investigation and expedites the reimbursement of the actual damages of the victims (public or private individuals or legal entities), an objective to be sought within a universal system for the defense of human rights. The reparation of the damage is not confused with the penalty and should be sought with even greater impetus in the case of economic crimes.

Victims’ rights must be made compatible with the rights of defendants, both of which are recognized as subjects, not as objects of the proceedings. As a result, the judge will only set a minimum amount to compensate for the damages caused by the infraction if he is certain about his estimate. In doubt, the rule of treating the presumption of innocence should prevail and the indemnity should be referred to the appropriate forum.