Newsletter ' July/20 | White Collar

• Published date: 22 September 2020
• Subject Matter: Criminal Law, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Koury Lopes Advogados
• Author: Koury Lopes Advogados

STF SUSPENDS FREEZING OF ASSETSAND PUBLIC CIVIL ACTION DUE TO ADMINISTRATIVE IMPROBITY, DUE TO THE DISMISSAL OF A CRIMINAL ACTION ARISING FROM THE SAME FACTS, IN RESPECT TO THE NE BIS IN IDEM PRINCIPLE. THE DISMISSALL OCCURRED BECAUSE IT WAS CLEAR THAT THE DEFENDANT WAS NOT THE PERPETRATOR OF THE WRONGDOINGS

The Supreme Federal Court, in the judgment of the Precautionary Measure in the Constitutional Complaint No. 41557, determined the suspension of the freezing of assets and the suspension of the related public civil action due to administrative improbity brought against a former state representative of S'o Paulo until the final judgment of the Complaint.

The Rapporteur of the case, Justice Gilmar Mendes, argued that since the judgment of the Habeas Corpus no. 158319 recognized that the defendant was not the perpetrator of the wrongdoings, the public civil action, which involved the same facts, would not have just cause. Consequently, neither would the freezing of assets.

This decision brings two main themes of great relevance in the criminal law field. The first one concerns the repercussions of a criminal sentence in the civil and administrative spheres.

In this regard, in the case of a sentence that acquits an individual, it will be necessary to observe the reasons for the acquittal. If the reason is that the defendant was not the perpetrator of the crime or that the facts did not exist, it will not be possible to claim any right in the other spheres. The same can be said of those who act in one of the justification cases provided for in Article 23 of the Penal Code.

On the other hand, if it is demonstrated that a certain conduct is not a crime, it is possible to claim, for example, damages in the civil sphere or impose a fine at the administrative level. This occurs because not all civil or administrative offenses constitute a crime.

In the case under analysis, it was recognized, in the habeas corpus that lead to the dismissal of the criminal action, that the defendant was not the perpetrator of the wrongdoings. Thus, it would not be possible to bring on another case, such as public civil action against the same individual for the same facts.

The second topic of great relevance concerns the impossibility of double jeopardy, in the same sphere or in different sanctioning spheres, as in criminal law and administrative sanctioning law based on the same facts and evidence, with respect to the principle of nebis in idem.

Although the Federal Constitution (article 37, ' 4) and the Civil Procedure Code (article 935)...