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Brazil: New Law Strengthens Fight Against Money Laundering

(July 16, 2012) On July 9, 2012, Brazilian President Dilma Roussef sanctioned Law No. 12,683 (Lei No. 12.683, de 9 de Julho de 2012, PLANALTO ), which amends the law that provides, inter alia, for the punishment of crimes involving money laundering as well as concealment of the utilization of assets, legal rights, and valuables resulting from criminal acts (Lei No. 9.613, de 3 de Março de 1998, PLANALTO [Brazilian Presidency website]).

Law No. 12,683 tightens Law No. 9,613 by, for example, making it a crime to conceal valuables even if the origin of those valuables is not directly tied to a crime, such as in cases of dealing in contraband items or drug trafficking, or if the government cannot establish a connection between the valuable and a criminal action. In the past, the crime of money laundering could only be established if it were linked directly to a criminal activity. (Luiza Damé & Gabriela Valente, Dilma Sanciona Lei que Endurece Combate à Lavagem de Dinheiro, O GLOBO (July 10, 2012).)

Dummy individuals used in such actions will be prosecuted and, if convicted, will be charged with the same punishment imposed on the principal criminals. The authorities can also now seize properties related to such activities that are registered to third parties and the movement of capital without an explanation can be considered money laundering. (Id.)

The punishment for money laundering is three to ten years in prison and a fine of up to ten million dollars. The amendment also newly allows plea bargaining (delação premiada) as a procedural alternative at any time, even after a trial, enabling the judge to commute the sentence if the criminal decides to cooperate with the judiciary. (Id.)

Background Information on Plea Bargaining in Brazil

Black's Law Dictionary defines a plea bargain as an agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges (BLACK'S LAW DICTIONARY 1270 (9th ed. 2009)).

Brazilian criminal laws do not have a plea bargain provision that fits this dictionary definition. However, a criminal provision nicknamed “awarded denunciation” (delação premiada) can be found in several laws. It usually reduces a criminal's punishment by one-third to two-thirds whenever the committed offense was practiced by more than one person and one of the offenders decides to denounce the participation of or identity of the others.

This provision can be found in several laws, including:

· Brazilian Penal Code, Decree-Law 2,848 of December 7, 1940, art. 159, § 4 (Código Penal, Decreto-Lei No. 2.848 de 7 de Dezembro de 1940, PLANALTO);

· Law No. 7,492 of June 16, 1986, art. 25, § 2 (Lei No. 7.492 de 16 de Junho de 1986, PLANALTO);

· Law No. 8,072 of July 25, 1990, art. 8, § 1 (Lei No. 8.072 de 25 de Julho de 1990, PLANALTO);

· Law No. 8,137 of December 27, 1990, art. 16, § 1 (Lei No. 8.137 de 27 de Dezembro de 1990, PLANALTO);

· Law No. 9,034 of May 3, 1995, art. 6 (Lei No. 9.034 de 3 de Maio de 1995, PLANALTO);

· Law No. 9,613 of March 3, 1998, art. 1, § 5 (Lei No. 9.613 de 3 de Março de 1998, PLANALTO); and

· Law No. 9,807 of July 13, 1999, arts. 13 and 14 (Lei No. 9.807 de 13 de Julho de 1999, PLANALTO).