Process was suspended in December 2022 after Gilmar Mendes asked for a view; 6 ministers have already voted in favor
The STF (Supreme Federal Court) formed a majority this Monday (June 26, 2023) to authorize the use of award-winning whistleblowing in administrative improbity suits filed by the MP (Public Ministry).
The trial is ongoing in the virtual plenary. Until 10:30 am on Monday (June 26), 6 ministers had already voted in favor of using the resource. The process had been suspended since December 2022, when Minister Gilmar Mendes requested a review (more time for analysis).
The plea bargain (or collaboration) is an agreement signed between the accused and the Public Prosecutor’s Office with the aim of collaborating with the investigations. In exchange for denouncing third parties, he receives benefits, such as a reduction in the sentence or serving the sentence in a semi-open regime, the extinction of the punishment or judicial pardon.
Ministers Dias Toffoli, Gilmas Mendes, Edson Fachin, Carmém Lúcia, Rosa Weber and Luis Roberto Barroso had followed the vote of the rapporteur minister, Alexandre de Moraes, who legitimized the measure.
Awarded collaborations are of a criminal nature. What the Supreme judges is whether the procedure is also applicable in civil actions, such as those involving impropriety. The case is important because it has general repercussions. That is, what the STF decides will have to be followed by judges and courts across the country.
In his vote, Minister Alexandre de Moraes assessed that Brazil has strengthened the fight against improbity in recent decades. In this sense, he said that the whistle blowing agreements, as a means of obtaining evidence, serve to further strengthen the fight against crimes committed within the public administration.
Moraes proposed the establishment of the following thesis:
“It is constitutional to use the award-winning collaboration in the civil sphere, in a public civil action, for an act of administrative improbity filed by the MP, observing the following guidelines:
- The collaborating agent’s statements, unaccompanied by other evidence, are insufficient for the initiation of public civil action for an act of impropriety;
- The obligation to reimburse the damage caused to the treasury by the collaborating agent must be integral, and cannot be the object of a transaction or agreement, with negotiation around the mode and conditions for compensation being valid;
- The collaboration agreement must be signed by the MP with the intervention of the interested public law legal entity;
- The agreements already signed only by the MP are preserved until the date of this judgment, provided that there is a forecast of full compensation for the damage, having been duly approved in court and regularly complied with by the beneficiary.”
In February 2021, the Attorney General of the Republic, Augusto Aras, also defended that the Public Prosecutor’s Office can make plea bargaining agreements with investigated persons in cases of administrative impropriety. According to Aras, “the measure favors the control of impropriety and the preservation of the public interest”.
For the PGR, the conclusion of agreements in improbity actions serves the public interest, because it stops acts of corruption, holds the culprits accountable and prevents new cases. Therefore, he argued that the STF should admit the possibility of using the instrument in civil actions, informed the MPF.
CONCRETE CASE
The concrete case of the judgment involves a public civil action filed by the MP of Paraná against the tax auditor Milton Antônio de Oliveira Digiácomo and 24 other individuals and legal entities. The process was proposed in the course of the Publicano Operation, which investigates an alleged criminal organization that would have the objective of obtaining equity advantage through illegal agreements with businessmen.
The Public Prosecutor’s Office of Paraná entered into a plea agreement that was ratified by the TJ-PR (Court of Justice of Paraná). Defendants from Publicano contested the measure, arguing that there is no award-winning collaboration in cases of impropriety.
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