White-Collar Crime 2024 Comparisons

In Brazil, an offence is defined as a typical, unlawful, and culpable act.

Typicality means that an act must correspond to the legal definition of an offence as defined by law. The act must also be unlawful, meaning it must be contrary to the legal order, without justifications, such as self-defence. Finally, the individual must be morally responsible for the act, without any extenuating circumstances that would negate their criminal responsibility (culpability). These elements combined determine whether an act constitutes an offence under Brazilian law.

Brazil’s law classifies offences as crimes or misdemeanours. Despite being ontologically identical, they have some differences established by law. According to Article 1 of the Introduction to the Criminal Code, a crime is considered as a criminal offence for which the law imposes a penalty of imprisonment or detention, whether alone or alternatively or cumulatively with a fine; whereas a misdemeanour is a criminal offence for which the law imposes, either alone, a penalty of simple imprisonment or a fine, or both alternatively or cumulatively. Therefore, crimes are considered more severe violations of law than misdemeanours, so are punished with more harsh penalties (imprisonment or detention), while misdemeanours are punished with less severe sanctions (notably simple imprisonment, which does not follow the penitentiary rigour of the former).

Also, according to the Criminal Code, an offence can be felonious – when the agent intended the result or assumed the risk of producing it – or culpable – when the agent caused the result through recklessness, negligence, or malpractice. Felonious offences generally carry more severe penalties because they involve a deliberate or knowingly risky action, while culpable offences involve a failure to adhere to a standard of care, which, although less intentional, still results in criminal liability.

Finally, an attempt to commit a crime is punished according to Article 14, sole paragraph, of the Criminal Code, resulting in a reduction of the penalty prescribed for the offence. In turn, although an attempt to commit a misdemeanour may occur in practice, it is not punishable, as stipulated by Article 4 of the Misdemeanour Law.

In Brazilian criminal procedure, the principles of presumption of innocence and in dubio pro reo (when in doubt, for the accused) are upheld. Therefore, it is the responsibility of the prosecution to bear the burden of proof regarding the defendant’s guilt, beyond any reasonable doubt. In this context, it is up to the prosecutor to substantiate their claims – namely, the crime, its circumstances, and the authorship – by presenting evidence with the ultimate goal of influencing the judge’s decision and obtaining a conviction.

In Brazilian criminal procedure, there are two types of statute of limitations:

• the statute of limitations for punitive claims, which occurs before the final judgment of the case; and
• the statute of limitations for enforcement claims, which occurs after the final judgment.

The statute of limitations for punitive claims is governed by the maximum term of imprisonment prescribed for the offence and must observe the deadlines established in Article 109 of the Criminal Code. That is, it will occur in:

• three years if the maximum penalty is less than one year;
• four years if the maximum penalty is equal to one year or, if higher, does not exceed two years;
• eight years if the maximum penalty is more than two years and does not exceed four years;
• 12 years if the maximum penalty is more than four years and does not exceed eight years;
• 16 years, if the maximum penalty is more than eight years and does not exceed 12 years; and
• 20 years if the maximum penalty is more than 12 years.

It is worth noting that the statute of limitations, as a rule, begins to run from the day the offence was completed. Nevertheless, in continuous offences, the statute of limitations begins to run from the day the offence ceases to occur.

Also, it is relevant to highlight that the Criminal Code provides for certain causes that interrupt the statute of limitations, such as the receipt of the indictment, the publication of the conviction sentence, and the initiation of the execution of the sentence (Article 117).

In turn, the statute of limitations for enforcement claims applies after the final judgement of the conviction and is governed by the penalty applied, also observing the deadlines established in Article 109 of the Criminal Code.

Brazilian criminal jurisdiction is regulated by the principle of territoriality, meaning that authorities/courts, as a rule, do not have jurisdiction to act independently outside of the country. However, Article 7 of the Criminal Code addresses the principle of extraterritoriality, enabling the application of Brazilian law to crimes committed outside its territory, for instance, if they involve Brazilian interests, or nationals, or if international obligations require it.

With regard to international co-operation, in Brazil, the Ministry of Justice has been designated as the Central Authority for international legal co-operation, a role carried out through the Department of Asset Recovery and International Legal Co-operation (DRCI). The measures requested for co-operation include, but are not limited to:

• exchange of information about the countries’ legislation;
• summonses and notifications;
• obtaining evidence, taking testimonies or statements; and
• the blocking, forfeiture, and recovery of assets.

The request for extradition is not limited to countries with which Brazil has a treaty. It can be made to or requested by any country. When there is no treaty in place, the request must be accompanied by the documents specified in Law No 13,445/2017, and must be based on the promise of reciprocal treatment for analogous cases.

In Brazil, legal entities are generally not subject to criminal liability, except in the case of environmental offences. In such instances, they can only be held liable if the offence is committed by the decision of their legal or contractual representative, in their interest or for their benefit. It is important to note that the criminal liability of legal entities does not exclude that of a natural person. Nevertheless, according to the Supreme Court (STF), a legal entity can be the sole defendant in a criminal proceeding, without the necessity of identifying and prosecuting the natural persons within it.

Moreover, there isn’t a policy preference as to when to pursue a legal entity or a natural person, meaning that if both are found criminally liable, they will be subject to the same type of criminal prosecution.

In the context of (non-fraudulent) mergers and acquisitions, the Superior Court of Justice (STJ) holds that the merger of a legal entity accused of an environmental crime should lead to the extinction of its criminal liability, as there is no regulation authorising the transfer of this criminal responsibility to the merging company.

The assessment of penalties occurs after the conviction sentence. From then on, as provided by Article 68 of the Penal Code, the calculation of the penalty must follow three phases:

• setting the base penalty;
• analysing the mitigating and aggravating factors; and
• examining the causes for the reduction or increase of the final penalty.

The first stage involves a subjective analysis of eight factors: culpability, criminal record, social behaviour, the agent’s personality, motives, circumstances of the crime, consequences, and the behaviour of the victim. In this assessment, the more unfavourable the circumstances, the closer the penalty is to the maximum.

After determining the base penalty, the judge assesses mitigating factors (confession, whether the defendant is over 70 years of age etc) and aggravating factors (recidivism, trivial motive etc).

Finally, in the third phase, the causes for increasing (eg, continuous crime) and decreasing (eg, attempt), set by the law, are considered and can increase the sentence above the maximum limit or reduce it below its minimum.

Also, upon conviction, the judge must assess whether the penalty may be substituted with an alternative sanction (other than imprisonment), or if the enforcement of the penalty can be suspended – in this case the offender will be subject to a probationary period.

Regarding the assessment of fines, according to Article 49 of the Penal Code, the fine is determined by the judge, who determines the number of daily fines and then establishes the value of each daily fine. The Penal Code stipulates a minimum of ten and a maximum of 360 daily fines. Furthermore, the fine cannot be less than one-thirtieth of the highest monthly minimum wage in effect at the time of the offence, nor exceed five times that wage. Finally, its value will be adjusted at the time of enforcement according to monetary correction indexes.

In the event of deferred prosecution agreement, non-prosecution agreement or plea agreement, see 2.6 Deferred Prosecution and 4.3 Plea Agreements, Co-operation, Self-Disclosure and Leniency.

Under Article 387, IV, of the Criminal Procedure Code (CPP), the judge, when delivering a convicting sentence, will set a minimum amount for the compensation of damages caused by the offence, considering the losses suffered by the victim. The determination of the compensation amount must also consider the principles of reasonableness and proportionality, the intensity of the victim’s suffering, the severity of the harm, the economic condition of the defendant, and the compensation-punishment balance.

In addition, Article 63, sole paragraph of the CPP also states that the amount set in the criminal sentence does not prevent the party from seeking liquidation to determine a higher amount, thereby obtaining full compensation for the damage. Lastly, according to Brazilian Superior Courts (STF and STJ), it is possible to claim compensation for collective moral damages in criminal actions.

White-collar offences in Brazil are prosecuted by the state, represented by three main authorities: the civil Judicial Police, the Federal Police and the Prosecution Office. In addition, white-collar offences are adjudicated by judges in State Courts and Federal Courts. Depending on the state or federal jurisdiction, there may be specialised courts or panels for handling such offences.

According to Article 144 of the Brazilian Constitution, both the Civil Police and the Federal Police are responsible for preserving public order and ensuring the safety of people and property. The Civil Police has the function of investigating criminal offences, except military ones, while the Federal Police, in addition to its other duties, is responsible for investigating offences related to the political and social order, as well as those affecting the Union’s assets, services, and interests, its autonomous entities, and public companies. The Federal Police also handles offences with interstate or international implications that require uniform enforcement. Since white-collar offences often involve such cross-border elements or impact authorities, they are commonly investigated and enforced by the Federal Police.

The Public Prosecution Office is the authority responsible for criminal prosecutions. According to the Constitution (Article 127), it is a permanent and essential institution for the state’s judicial function, tasked with defending the legal order, the democratic regime, and social and individual interests. Consequently, the Public Prosecution Office, represented by federal prosecutors in Federal Courts and state prosecutors in State Courts, is responsible for initiating criminal proceedings and prosecuting individuals accused of white-collar offences.

In addition to these three main authorities with criminal jurisdiction, there are administrative and civil bodies that address possible administrative offences related to white-collar crimes. For instance, the Council for Financial Activities Control (COAF) is authorised by the Anti-Money Laundering Law (Articles 14 to 17 of Law 9,613/98) to investigate financial crimes. It can initiate administrative punitive proceedings to impose administrative sanctions.

If public officials are also investigated, the case may involve the General Comptroller (CGU, the internal control body) and the Court of Auditors (TCU, which oversees financial activities and budget execution).

Also, the Central Bank (BC) and the CVM (Brazilian Securities and Exchange Commission) can initiate sanctioning administrative proceedings to investigate and apply penalties related to financial offences (Articles 2 and 33 of Law 13,506/17). Finally, CADE (Administrative Council for Economic Defence) is authorised by the Competition Defence Law (Articles 66 to 68 of Law 12,529/11) to initiate administrative investigations into economic offences.

White-collar crime investigations can be initiated based on complaints or reports made by individuals, companies, or other entities. These reports can be submitted to authorities such as the Federal Police, the Public Prosecution Office, or regulatory agencies. Also, they can be initiated throughout routine audits and inspections by regulatory agencies, like the Brazilian Securities and Exchange Commission, the Federal Revenue Service, and the Central Bank, which conduct routine audits and inspections that might uncover irregularities or signs of white-collar crimes.

Moreover, the Federal Police can initiate investigations into white-collar crimes based on intelligence, ongoing operations, or referrals from other agencies. The Public Prosecution Office may also initiate investigations, and, according to the Supreme Court, it requires: (i) immediate notification to the competent judge regarding the initiation and conclusion of the investigative procedure, with proper registration and distribution; (ii) adherence to the same deadlines and rules established for the completion of police inquiries; (iii) the need for judicial authorisation for any extensions of deadlines.

Under Brazilian criminal law, a judge must be presented with probable cause to authorise dawn raids and search warrants. When the investigating authority deems that a search and seizure are necessary, it must request a search warrant from a competent judge, providing justified reasons for the need to employ this measure.

It is important to note that, according to the Supreme Court, generic search and seizure warrants, without individualisation, can constitute a form of fishing expedition; a tactic that is prohibited.

The court’s decision to authorise a raid must detail the scope of the measure, specifying which papers, documents, or objects are to be searched and seized. The court order must also include the reasons for the investigation and its objectives.

With regard to questioning employees, officers, directors, or third parties, the authorities may issue subpoenas requiring them to provide testimony or information. The questioning must be conducted following legal procedures to ensure that the rights of the individuals are protected, such as the presence of a lawyer and the right to remain silent.

Internal investigations are not legally mandatory in Brazil. Nevertheless, they play a relevant role in managing risks, demonstrating compliance, and influencing how enforcement authorities and courts approach white-collar crime cases. Therefore, companies are encouraged to conduct thorough internal investigations to manage legal and regulatory risks effectively and to potentially benefit from reduced penalties or leniency, if they co-operate with authorities.

After an investigation is completed, if sufficient evidence is gathered, the Public Prosecutor’s Office will file a formal indictment with the court. After that, the judge reviews the complaint and decides whether there is enough basis to proceed with the trial. If the judge deems the evidence sufficient, the formal trial process begins.

The Public Prosecutor’s Office has discretion in determining whether there is sufficient evidence to proceed with charges. However, this discretion is not absolute and must align with legal standards. This means that the Public Prosecutor may decide not to pursue a case when it is evident that the facts do not constitute a crime or that there are grounds for not prosecuting. Otherwise, criminal prosecution would be mandatory.

According to Article 89 of Law No 9,099/1995, in crimes in which the minimum penalty prescribed is equal to or less than one year, the Public Prosecutor, when filing the indictment, may propose suspending the proceedings for two to four years, provided that the defendant is not being prosecuted or has not been convicted of another crime. In this case, the defendant will be subjected to a probationary period under the following conditions:

• compensation for the damage, unless it is impossible to do so;
• prohibition from frequenting certain places;
• prohibition from leaving the jurisdiction where they reside without the judge’s authorisation; and
• personal and mandatory monthly appearances in court to report and justify their activities.

Additionally, Article 76 of the same law states that, in the case of misdemeanours and crimes with a maximum penalty of up to two years, the Public Prosecutor may propose an agreement for the case to be dismissed, with the immediate imposition of restrictive penalties (such as monetary compensation, forfeiture of assets, weekend limitation, and community service), or fines to the defendant. The requirements for this agreement to be made are:

• not having a final conviction for a prison sentence for a crime;
• not having been granted this same benefit in the last five years; and
• having favourable circumstances.

Finally, Article 28-A of the Criminal Procedure Code allows non-prosecution agreements in cases where the minimum penalty is less than four years of imprisonment and the crime was not committed with violence or significant threats. To enter into such an agreement, the defendant must:

• confess to the crime;
• repair the damage caused;
• forfeit any property used in or resulting from the crime; and
• fulfil any other condition indicated by the Public Prosecutor’s Office.

Criminal company law and corporate fraud offences are primarily governed by Law No 7,492/1986.

Article 4 of the law criminalises fraudulently managing a financial institution, which is defined by unlawful acts performed by those responsible for managing a financial institution, involving deceitful practices and deliberate fraud. The penalty for this crime is imprisonment for a period ranging from three to 12 years, and a fine. Moreover, the sole paragraph of this Article typifies reckless management, which is characterised by the impetuousness with which business is conducted, which increases the risk that business activities may end up causing harm to third parties or misusing the money invested in the company. The penalty provided is imprisonment for two to eight years, and a fine.

Misappropriation and embezzlement of funds is found in Article 5. This crime involves administrators of a financial institution appropriating or diverting funds, money, or movable property for personal benefit or that of others. The penalty is imprisonment for a period ranging from two to six years, and a fine.

Article 9 provides a penalty of imprisonment for a period ranging from one to five years and a fine for those who defraud regulatory authorities or investors, inserting a false or differing statement in a document evidencing investment in securities or financial assets. Finally, Article 11 provides the same penalty for those who maintain or handle resources or values in parallel to the accounting required by law.

Brazil’s Criminal Code, within its chapter dedicated to offences against Public Administration, incriminates the acts of active and passive corruption.

According to Article 333, active corruption involves the offering or promising of an undue advantage to a public official in order to persuade them to perform, omit, or delay an official act. The penalty for this offence is imprisonment for a period ranging from two to 12 years, and a fine. This penalty is increased by one-third if, due to the advantage or promise, the public official delays or omits an official act, or performs it in violation of their functional duties.

On the other hand, passive corruption, as established by Article 317, consists in the requesting or receiving, by the public official, for themselves or for others, of an undue advantage, even if outside of or before assuming the function, but in connection with it, or accepting a promise of such an advantage. The penalty for this offence is the same as mentioned above. Passive corruption can also occur if the public official performs, fails to perform, or delays an official act in violation of their functional duties, yielding to a request or influence from another person. In this case, the penalty ranges from three months to one year of detention, or a fine (Article 317, Paragraph 2).

In addition to those crimes, Brazil’s Criminal Code also criminalises the practice of graft (Article 316), which is defined as the demand, for oneself or for others, of an undue advantage, even if outside the public function or before assuming it, but because of it. It has the same penalty as the offences mentioned above. The difference between this crime and passive corruption is that, in the latter, the official makes a simple request or solicitation, without any implicit or explicit threat; whereas in graft there is an actual demand, that is, a threat (element of coercion).

Moreover, Article 332 incriminates influence peddling, which occurs when an individual requests, demands, collects, or obtains for themselves or for others an advantage or a promise of advantage, under the pretext of influencing an act performed by a public official in the exercise of their duties. The penalty for this offence is imprisonment for a period ranging from two to five years, and a fine.

Brazil also considers the following acts as offences: active corruption of a foreign public official (Article 337-B), which is punishable by imprisonment for a period ranging from one to eight years, plus a fine, and influence peddling in the context of international business transactions (Article 337-C), punishable by two to five years’ imprisonment, also with a fine. The penalty for influence peddling can be increased by up to 50% if the agent claims or implies that the advantage is also intended for a foreign official.

Besides the regulations provided by the Criminal Code, Brazil has additional legal provisions addressing bribery and corruption. A key piece of legislation in this area is Law No 12,846/2013, commonly known as the Anti-Corruption Law. It addresses the administrative and civil liability of legal entities for acts against national or foreign public administration.

According to the Law, the following acts are considered harmful to public administration:

• promising, offering, or giving an undue advantage to a public official or a third party related to them;
• proven to have provided financing, funding, sponsoring, or in any way subsidising the commission of the illegal acts outlined in the Law;
• proven to have used an intermediary, whether an individual or legal entity, to conceal or disguise one’s true interests or the identity of the beneficiaries of the acts performed;
• frustrating, committing fraud, impeding, disturbing, forcing the withdrawal of a bidder, fraudulently incorporating a bidding entity in connection with public procurement, or manipulating or committing a fraud in respect of contracts entered into with Public Administration; and
• hindering the investigation or oversight activities of public bodies, entities, or officials, or interfering with their operations, including within regulatory agencies and the financial system supervisory authorities.

Other notable legislation includes:

• Federal Law No 8,429/1992, which establishes sanctions for public officials who violate their duties and public law principles, and aims to prevent illicit enrichment among other objectives; and
• Federal Law No 14,133/2021, which regulates public tenders and contracts with the government.

Finally, although compliance programmes are not mandatory in Brazil, Decree No 11,129/2022, which regulates Law No 12,846/2013, specifies that sanctions may be reduced for legal entities that have implemented and maintained a compliance programme. This offers a significant advantage to companies facing penalties for violations.

Law No 6,385/1976, in its Article 27-C, defines the crime of market manipulation, which is characterised by conducting simulated operations or engaging in other fraudulent manoeuvres aimed at raising, maintaining, or lowering the quotation, price, or trading volume of a security, with the intent of obtaining undue advantage or profit, for oneself or others, or causing harm to third parties. The penalty for this offence is imprisonment for a period ranging from one to eight years, and a fine of up to three times the amount of the illicit advantage obtained as a result of the crime.

On the other hand, using relevant information that one is aware of, which has not yet been disclosed to the market and which is capable of providing undue advantage to oneself or others, through trading securities, constitutes the crime of insider dealing under Article 27-D. The penalty for this offence is imprisonment for a period ranging from one to five years, and a fine of up to three times the amount of the illicit benefit obtained as a result of the crime.

The same penalty applies to anyone who discloses confidential information related to a significant fact that they have accessed due to their position or role at a securities issuer, or because of a commercial, professional, or trust relationship with the issuer. Finally, the sanction is increased by one-third if the agent commits the crime of insider dealing using relevant information that they know and are required to keep confidential.

Tax crimes are primarily provided for in Law No 8,137/1990. Article 1 of the law states that it constitutes a crime against the tax order to suppress or reduce taxes, and social contributions, through the following conduct:

• omitting information or providing false statements to tax authorities;
• defrauding tax inspection by inserting inaccurate elements or omitting any operation in documents or books required by tax law;
• forging or altering invoices, bills, receipts, sales notes, or any other document related to taxable operations;
• drafting, distributing, providing, issuing, or using a document that one knows or should know is false or inaccurate; and
• refusing or failing to provide, when mandatory, an invoice or equivalent document related to a sale of goods or provision of services actually carried out, or providing it in disagreement with the legislation.

The penalty established for any of these actions is imprisonment for a period ranging from two to five years, and a fine.

In addition, Article 2 sets out what constitutes a crime of the same nature, namely:

• making a false declaration or omitting information about income, assets, or facts, or employing another form of fraud, to fully or partially evade the payment of taxes;
• failing to pay, within the legal deadline, any amount of tax or social contribution that was withheld or collected, in the capacity of a taxpayer, and that should have been paid to the public treasury;
• demanding, paying, or receiving, for oneself or for the benefiting taxpayer, any percentage of the deductible or deducted portion of taxes or contributions as a fiscal incentive;
• failing to apply, or applying contrary to the stipulated rules, any fiscal incentives or portions of taxes released by a development body or entity; and
• using or disclosing data processing programs that allow the taxpayer to have accounting information different from that which is legally provided to the tax authorities.

In those cases, the penalty provided is detention for a period ranging from six months to two years, and a fine.

Article 10 of Law No 7,492/1986 criminalises the act of inserting false elements or omitting required elements in the financial statements of specific entities, including financial institutions, insurance companies and institutions involved in the securities distribution system. The penalty for this offence is imprisonment for a period ranging from one to five years, and a fine.

The conduct of a cartel is defined in Article 4 of Law No 8,137/1990, which states that the following constitutes a crime against the economic order:

• abusing economic power by dominating the market or eliminating, totally or partially, competition through any form of agreement or arrangement between companies;
• forming an agreement, convention, arrangement, or alliance among suppliers, aimed at:
1. the artificial fixation of prices or quantities sold or produced;
2. the regional control of the market by a company or group of companies; and
3. the control, to the detriment of competition, of distribution networks or suppliers.

The penalty provided is imprisonment for a period ranging from two to five years, and a fine.

Moreover, the practice of a cartel in public procurement is defined in Article 337-F of the Criminal Code, as the act of frustrating or defrauding, through agreements, combinations, or any other means, the competitive nature of the bidding process, with the intent of obtaining an advantage resulting from the award of the object of the bid. The established penalty is imprisonment for a period ranging from four to eight years, and a fine.

In turn, administrative responsibility for cartel practices is defined in Article 36, § 3, item I, of Law No 12,529/2011, which characterises it as the act of agreeing, combining, manipulating, or adjusting with a competitor, in any form:

• the prices of individually offered goods or services;
• the production or commercialisation of a restricted or limited quantity of goods, or the provision of a restricted or limited number, volume, or frequency of services;
• the division of parts or segments of an existing or potential market for goods or services, including, among other things, the distribution of customers, suppliers, regions, or periods; and
• prices, conditions, advantages, or abstentions in public bidding.

The practice of this infraction subjects those responsible to the following penalties:

• in the case of a company, a fine ranging from 0.1% to 20% of the company’s gross revenue; and
• in the case of other individuals or public or private legal entities, the fine will range from BRL50,000 to BRL2 billion.

Lastly, Law No 9,279/1996, in its Article 195, criminalises unfair competition, which occurs when a natural or legal person engages in business practices that harm competitors by attracting clients through illegal, immoral, or abusive means, employing simulation, dissimulation, fraud, subterfuges, and other illegitimate methods. The penalty provided for this offence is imprisonment for a period ranging from three months to one year, or a fine.

The most relevant crimes against consumer relations are listed in Article 7 of Law No 8,137/1990, which provides for the following conduct:

• favouring or preferring, without just cause, a buyer or customer, except for delivery systems through distributors or resellers;
• selling or offering for sale goods whose packaging, type, specification, weight, or composition is not in accordance with legal prescriptions, or that does not correspond to its official classification;
• mixing goods of different kinds to sell or display them as pure; mixing goods of unequal quality to sell or display them at a higher price established for goods of a higher cost;
• fraudulently altering prices through:
1. changing elements such as denomination, external sign, brand, packaging, technical specification, description, volume, weight, painting, or finish of goods or services without essential or quality modifications;
2. dividing a good or service usually offered for sale together into parts;
3. combining goods or services typically sold separately; and
4. notifying the inclusion of inputs not used in the production of the goods or in the provision of services;
• increasing the amount charged on instalment sales of goods or services by demanding illegal commissions or interest rates;
• withholding inputs or goods, refusing to sell them to those who wish to buy them under publicly offered conditions, or retaining them for speculation purposes;
• misleading the consumer or user through false or deceptive indications or statements about the nature or quality of the good or service, using any means, including advertising or publicity;
• destroying, wasting, or damaging raw materials or goods to cause a price increase for personal or third-party benefit; and
• selling, storing for sale, displaying for sale, or in any way delivering raw materials or goods in conditions unsuitable for consumption.

The penalty for anyone who commits any of these actions is detention for a period ranging from two to five years, or a fine.

Article 154-A of the Criminal Code criminalises unauthorised access to computer devices, with the intent to obtain, alter, or destroy data or information without the authorisation of the device’s user, or to install vulnerabilities to obtain an illicit advantage. The penalty for this offence is imprisonment for a period ranging from one to four years, and a fine. The same penalty applies to anyone who produces, offers, distributes, sells, or disseminates a device or computer program with the intent of enabling the conduct defined above.

If the invasion results in the obtaining of content from private electronic communications, trade or industrial secrets, confidential information, or unauthorised remote control of the invaded device, the penalty is increased to imprisonment for a period ranging from two to five years, and a fine.

Moreover, the breach of company secrets is criminalised by Article 153 of the Criminal Code. The conduct consists of disclosing, without just cause, the content of a private document or confidential correspondence, of which one is the recipient or holder, and the disclosure of which could cause harm to another person. The penalty for this offence is detention for a period ranging from one to six months and a fine.

Lastly, Article 154 of the Brazilian Criminal Code provides for the crime of breach of company secrets, establishing a penalty of imprisonment for a period ranging from three months to one year to one who reveals, without just cause, a secret, which they are aware of due to their function, ministry, trade or profession, and whose revelation could cause harm to others.

The Criminal Code, in its Article 334, provides for the crime of improper clearance. It refers to the evasion, in whole or in part, of the payment of a fee or tax due for the entry, exit, or consumption of goods. The penalty is imprisonment for a period ranging from one to four years. One is also involved in a crime of improper clearance if they:

• sell, offer for sale, keep in storage, or in any way use for their own benefit or that of others, during commercial or industrial activity, goods of foreign origin that they have clandestinely introduced into the country, or that they know are products of clandestine introduction into the national territory; or
• acquire, receive or conceal, for their own benefit or that of others, during commercial or industrial activity, foreign-origin goods that are either lacking legal documentation or accompanied by documents that they know to be false.

In addition, the offence of smuggling is provided for by Article 334-A, which is defined as the act of importing or exporting prohibited goods. The penalty is imprisonment for a period ranging from two to five years. The same penalty applies to those who:

• illegally import or export goods that require registration, analysis, or authorisation from a competent public agency;
• reintroduce into the national territory Brazilian goods intended for export;
• sell, offer for sale, keep in storage, or otherwise use for their own benefit or that of others, during commercial or industrial activity, goods prohibited by Brazilian law; or
• acquire, receive, or conceal, for their own benefit or that of others, in the course of commercial or industrial activity, goods prohibited by Brazilian law.

Law No 12.850/13, which defines criminal organisations and addresses the legal measures and criminal offences related to them, stipulates that the same penalties applicable to the crime of being part of a criminal organisation (Article 2, main provision) will apply to anyone who prevents or, in any way, hinders the investigation of a criminal offence involving a criminal organisation. Therefore, if an individual who has contact with a certain criminal organisation becomes aware of an investigation into that organisation and begins to use mechanisms to obstruct it, making it confusing or even preventing it from progressing, they will be committing the offence. The penalty provided is three to eight years of imprisonment.

Brazil’s Criminal Code determines that anyone who, in any way, contributes to a crime is subject to its prescribed penalties, according to their level of involvement (Article 29). Nevertheless, in case the assistance is of minor importance, the penalty may be reduced by one-sixth to one-third. Also, if any of the participants intended to commit a less serious crime, they will be subject to the penalty for that crime; this penalty will be increased by up to half if a more serious outcome was foreseeable.

In Brazil, money laundering is classified as a crime under Article 1 of Law No 9.613/98. According to the legislation, the crime of money laundering consists of concealing or disguising the nature, origin, location, disposition, movement, or ownership of assets, rights, or values that come directly or indirectly from criminal offences. With the innovation brought by Law No 12.683/2012, any criminal offence (crimes and/or misdemeanours) that has the potential to generate assets of illicit origin can now be considered a predicate offence for money laundering. The penalty prescribed is imprisonment for three to ten years, and a fine.

The same penalty applies to anyone who, to conceal or disguise the use of assets, rights, or values derived from criminal offences:

• converts them into lawful assets;
• acquires, receives, exchanges, negotiates, gives, or receives them as collateral, stores, keeps in deposit, moves, or transfers them; and
• imports or exports goods with values that do not correspond to their true worth.

The legislation also punishes anyone who:

• uses assets, rights, or values derived from criminal offences in economic or financial activities; and
• participates in a group, association, or office with knowledge that its main or secondary activity is aimed at committing money laundering.

In regards to money laundering, individuals, companies, and financial institutions listed in Article 9 of Law No 9.613/98 are subject to various obligations related to its prevention, such as:

• identifying their clients and maintaining updated records, in accordance with instructions from the competent authorities;
• keeping a record of all transactions in national or foreign currency, securities, credit instruments, metals, virtual assets, or any asset that can be converted into money, that exceeds the limit set by the competent authority and according to instructions issued by it;
• adopting policies, procedures, and internal controls compatible with their size and volume of operations;
• registering and maintaining their registration updated with the regulatory or supervisory body, and in its absence, with the Financial Activities Control Council (Coaf), according to the conditions established by them; and
• complying with requests made by Coaf in the frequency, form, and conditions established by it, while preserving, as required by law, the confidentiality of the information provided.

Failure to comply with these obligations can result in the following administrative sanctions:

• warning;
• fine;
• temporary disqualification, for up to ten years, from holding the position of administrator of legal entities; and
• revocation or suspension of the authorisation to engage in activities or operations.

In Brazil, the main defences used in cases involving white-collar offences are:

• lack of intent – the defence may claim that the defendant did not have the intent to commit a crime or was unaware of the illegal nature of their actions;
• lack of evidence – the defence can argue that the prosecution has not met its burden of proof;
• procedural errors – the defence may claim that procedural and/or individual rights were violated; and
• time barred – the defence may argue that the prosecution is barred by the statute of limitations.

It is important to note that an effective compliance programme is not a criminal defence, however it plays a crucial role in mitigating criminal corporate liability and influencing penalties, especially under the crimes set forth by the Anti-Corruption Law (Law No 12,846/2013).

In Brazil, there are no formal de minimis exceptions for white-collar offences, and no specific industries or sectors are exempt from liability.

Law No 12,850/2013, later amended by Law No 13,964/2019, establishes the institute of plea bargaining (colaboração premiada), which is a means of obtaining evidence based on the co-operation of a person suspected of involvement in the investigated facts. This process aims to provide the authorities responsible for the investigation with information about criminal organisations or unlawful activities.

In the statements one provides, the collaborator will waive, in the presence of their lawyer, the right to remain silent and will be subject to the legal obligation to tell the truth. Also, the plea bargaining agreement assumes that the collaborator will cease involvement in illegal conduct related to the subject of the collaboration, under penalty of termination.

For collaboration to be considered effective, at least one of the conditions outlined in Article 4 of Law 12,850/13 must be demonstrated by the defendant:

• identification of other co-authors and participants of the criminal organisation and the criminal offences committed by them;
• disclosure of the hierarchical structure and task division within the criminal organisation;
• prevention of criminal offences resulting from the activities of the criminal organisation;
• recovery of all or part of the proceeds or benefits from the criminal offences committed by the criminal organisation; and
• location of any victim with their physical integrity preserved.

If one or more of the conditions described are demonstrated, the reward benefit may be granted according to the provisions of Article 4 of Law 12,850/13:

• judicial pardon, leading to the extinction of criminal liability (main clause);
• reduction of up to two-thirds of the prison sentence (main clause);
• substitution of the prison sentence with a restrictive penalty (main clause);
• procedural immunity, in cases where the Public Prosecutor decides not to file charges if the collaboration agreement refers to a crime of which there was no prior knowledge, and the collaborator is not the leader of the criminal organisation and/or was the first to provide effective collaboration (§4);
• reduction of the sentence by up to half, in cases of collaboration after the sentence (§5); and
• progression to a less restrictive prison regime, even if the objective requirements are not met, in cases of collaboration after the sentence (§6).

With regard to legal entities, the Brazilian legal system allows leniency agreements in the context of cartels and anti-competitive infractions, as well as for harmful acts against Public Administration (national or foreign).

Under Law No 12,529/2011, the Administrative Council for Economic Defence (CADE) may enter into a leniency agreement, leading to the termination of the punitive action by the public administration or a reduction of one to two-thirds of the applicable penalty, provided that there is effective co-operation with the investigations and the administrative process, and that this co-operation results in:

• the identification of other parties involved in the violation; and
• the obtaining of information and documents that prove the reported or investigated violation.

Also, the agreement may only be entered into if the following requirements are cumulatively met:

• the legal entity is the first to qualify with respect to the reported or investigated violation;
• the legal entity completely ceases its involvement in the reported or investigated violation from the date of the agreement’s proposal;
• the General Superintendence does not have sufficient evidence to secure the conviction of the company at the time of the agreement’s proposal; and
• the legal entity confesses its participation in the offence and fully and permanently co-operates with the investigations and the administrative process, attending, at its own expense, all procedural acts whenever requested, until the process is concluded.

In respect of infractions related to harmful acts against the Public Administration, entering into a leniency agreement exempts the legal entity from certain sanctions (such as publication of the convicting decision) and reduces the applicable fine by up to two-thirds.

In Brazil, Law No 13,608/2018, which deals with telephone service for receiving complaints and rewards for information that aids in police investigations, established the concept of the so-called whistle-blower within the public sector. In this regard, there has been recognition of some important components of whistle-blowing policy for the prevention, suppression, or investigation of crimes or administrative violations:

• guarantee of anonymity (Article 1, Item II);
• confidentiality of the informant’s data (Article 3); and,
• reward (Article 4).

In 2019, additional enhancements to this policy in the public sphere were introduced with the enactment of Law No 13,964/2019, including:

• an institutionalised channel for receiving reports;
• full protection against retaliation and exemption from civil or criminal liability for the reporter regarding the report;
• disclosure of the reporter’s identity will only occur with prior notification and formal consent from them;
• dismissal for the public good in cases of severe disciplinary misconduct by the individual who retaliated;
• double compensation to the reporter for any material damages caused by actions or omissions related to the retaliation, without prejudice to moral damages; and
• a reward for the reporter of up to 5% of the recovered amount.

However, there is still no mandatory regulation requiring private companies to implement reporting channels. Among private companies, adopting reporting channels as part of a broader integrity system is a decision made:

• as a strategy to add value to their activities;
• to enhance their capacity to conduct business, and/or
• to obtain benefits provided by law in the event of an investigation and accountability for any illegal activities conducted within the company.