An action pending in the Federal Supreme Court (STF) could significantly change the rules for plea bargain agreements in the country and could put at risk the execution of the plea bargain of banker Daniel Vorcaro, former controller of Banco Master. The case, presented by the PT in 2021 and reported by minister Alexandre de Moraes, was released for judgment in the plenary, but there is still no set date.
The central objective of the action is to establish additional limits for the conclusion and validity of declarations, with a focus on the protection of individual guarantees. If the STF accepts the requests, there will be practical changes in the way the Federal Police and Public Ministry conduct negotiations with those being investigated.
One of the main points deals with the situation of those under investigation who sign agreements while they are in prison. The action proposes that, if the Court later finds that the arrest was illegal, the entire statement and the evidence derived from it be annulled.
Today, the legislation does not provide for this automatic consequence. The proposal introduces the idea that imprisonment could compromise the voluntariness of the agreement, which could invalidate collaboration.
Restriction on benefits offered
Another axis of action involves limiting the benefits that can be granted to the whistleblower. Among the suggested changes are:
• Prohibition of extending benefits to the employee’s family members;
• Restriction of benefits only to crimes investigated in the specific case;
• Preventing the granting of broad immunity in other investigations.
In practice, these measures reduce the scope of negotiations and make agreements more restricted to the process in question.
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The action also questions the use of confidential third-party information obtained by the whistleblower. The proposal establishes that data such as messages, emails or private records can only be used with specific judicial authorization.
The argument is that these contents involve fundamental rights, such as privacy and secrecy of communications, which could not be made more flexible just through an agreement between the parties.
Another relevant point is the expansion of the right to defense of people cited in allegations. The proposal allows reported individuals to legally challenge the agreement itself, and not just measures derived from it, such as searches or arrests.
Currently, the STF allows challenges to acts based on whistleblowing, but not the agreement itself. The change would open space for direct questions about the validity and terms of the collaboration.
Ongoing investigations
If approved, the changes create new criteria for validating allegations and may increase the risk of evidence being annulled. This would require greater procedural rigor on the part of authorities during the negotiation and execution of agreements.
Furthermore, the possibility of later review of the legality of the arrest and challenge by third parties expands the fronts for judicial questioning.
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The action is ready for judgment in the STF plenary, where it will be analyzed by the Court’s ministers. Since its presentation, different institutions have spoken out on the topic.
The Attorney General’s Office, in a 2022 opinion, defended the rejection of the action, arguing that the proposed changes would create rules not provided for in the legislation. The Brazilian Bar Association (OAB) supported the request, stating that the current application of plea bargains has generated distortions.
The STF’s decision will define whether there will be structural changes to the award-winning collaboration model adopted in the country.
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