In yet another chapter of the struggle between the Lula government and deputy Guilherme Derrite (PP-SP), rapporteur for PL Antifaction, allies of Palácio do Planalto criticized the parliamentarian for excluding the “extraordinary loss of assets” from the proposal to combat organized crime. In the latest version of his report, released on Wednesday, Derrite proposed a “civil action for forfeiture of assets”, which runs independently of the criminal investigation. Despite foreseeing different rhythms, both proposals are seen by experts as faster than current legislation, and are similar to measures proposed by Lava-Jato in 2015.
Today, legislation only allows the confiscation of assets after a criminal conviction; During the investigation, suspects’ assets may be seized by court decision. Public security authorities defend early confiscation as a way to avoid difficulties in retaining assets such as aircraft, vehicles and properties, sometimes held in the name of family members or criminals.
To facilitate this confiscation, the Ministry of Justice proposed, in the original text of the Antifaction PL, new articles in the Code of Criminal Procedure so that the judge can decree the confiscation even before the end of the judicial process. This “extraordinary loss”, according to the proposal, could be applied even if the case is archived or extinguished in the event of prescription or death of the defendant.
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Derrite’s initial report suppressed this “loss” without proposing something in its place. Faced with the negative repercussion, it included in its most recent version a “civil action for forfeiture of assets”, a new judicial instrument in which the judge can confiscate assets when there is evidence that they arose from illicit activities. Derrite also stipulated that this action is “unprescribed” and independent of the “assessment of responsibility” in criminal action, which sometimes moves more slowly.
“You no longer just look at the defendant, but at his assets. It is a civil measure that has a phenomenal effect for recovering assets. It follows Colombian legislation and a UN recommendation”, said Vladimir Aras, federal prosecutor and professor at the University of Brasília (UnB).
The government’s proposal provided for this declaration of loss to occur within the criminal investigation, without generating new legal action. Furthermore, it established that, after the seizure of the goods, those investigated had 15 days to “prove their lawful origin”; Without this proof, the judge could already order extraordinary forfeiture, even if there was no conviction for the main crime later.
“The option for this incident is because it is much faster. It is less bureaucratic and safer, because you run the risk of having two antagonistic decisions, the criminal action and the civil one. We understand that the natural judge of the case has many more elements to judge and achieve the good faster”, explained the national secretary of Legislative Affairs at the Ministry of Justice, Marivaldo Pereira.
In the assessment of Thiago Bottino, professor at FGV Direito Rio and specialist in Criminal Law, the Lula and Derrite government’s proposals are parallel to the “dominion extinction action”, proposed by members of Lava-Jato within the so-called “package of ten measures against corruption”, in the last decade. The proposal in question allowed the loss of assets even if there was no conviction of those investigated.
Another similar measure, according to the expert, is the “extended confiscation”, approved in the anti-crime package of the then Minister of Justice Sergio Moro, in 2019: the rule started to allow the confiscation of assets of convicts, even if they are not directly related to the crime, if the origin is not proven.
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“It means taking the assets without requiring a criminal conviction. This is not what happens today, for example, in the case of an operation like Carbono Oculto: all the assets are seized, but under no circumstances are they lost before the sentence.”
Bottino recognizes that there are difficulties in stifling criminal organizations, but he assesses that both proposals, the government’s and Derrite’s, “invert the burden of proof” and contradict the principle of criminal proceedings that “convicts lose what was obtained criminally”.
Criminal lawyer Ana Krasovic considers that Derrite’s report prevents the forfeiture of assets if the judge “absolutely recognizes the non-existence” of a crime attributed to the person being investigated. The government text, according to the lawyer, provides a specific list of gang crimes that can lead to the loss of assets.
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Request for ‘commitment’
In addition to the impasse over the confiscation of assets, Derrite and the Lula government have already clashed over the equation of crimes committed by factions with the penalties of the Anti-Terrorism Law, which was intended by the rapporteur. After criticism, however, he retreated from this comparison and proposed, in its place, a “legal framework for combating ultra-violent organized crime”, that is, legislation autonomous from terrorism and the current Criminal Organizations Law.
On Thursday, in parallel to the discussions on the Antifaction PL, the Minister of Institutional Relations, Gleisi Hoffmann, said that Lula asked for “commitment” from ministers to approve the Security PEC, which seeks to reinforce integration between the federal government and states. According to Gleisi, the request was for the PEC to join the anti-faction project.
“The president asked the ministers for commitment so that the two projects, the Public Security PEC and the anti-faction bill, are approved. We are concerned about some points in the report (by Derrite). The extraordinary loss is important that it returns to the project”, stated Gleisi.
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The statement came after Lula’s meeting to discuss public security with all his ministers who were once governors: Rui Costa (Casa Civil), from Bahia; Geraldo Alckmin (Industry and Commerce), from São Paulo; Renan Filho (Transport), from Alagoas; Camilo Santana (Education), from Ceará; Wellington Dias (Social Development), from Piauí; and Waldez Góes (Regional Development), from Amapá. The topic gained more space on Planalto’s agenda after the repercussions of the Rio government operation two weeks ago, which left 121 people dead.
