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Brazil: Supreme Court Rules Federal Police Plea Bargains Are Constitutional

(June 25, 2018) On June 21, 2018, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) ruled on a Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade (ADI) 5508) proposed by the Public Prosecutor’s Office (Procuradoria Geral da República), holding that agents of the Federal Police (Delegados) could not make plea bargain agreements (acordos de colaboração premiada). (STF Decide que Delegados de Polícia Podem Firmar Acordos de Colaboração Premiada, Notícias STF (June 20, 2018).)

Writing for the majority, Justice Marco Aurélio determined that the formulation of a plea bargain agreement by the police authority as a means of obtaining evidence does not interfere with the constitutional duty of the Public Prosecutor’s Office to file criminal charges. Aurélio emphasized that even if the police authority offers a reduction of a criminal sentence to a person, the materialization of this benefit can only occur judicially because it is a prerogative of the judiciary to approve it or not. (Id.)

According to the decision, although the participation of the Public Prosecutor’s Office is not mandatory at all stages of the drafting of plea bargain agreements between the police authority and the person who decides to enter into it, the Public Prosecutor’s Office must state its opinion about the agreement. However, it is solely for the court to decide whether or not to approve the agreement, after evaluating the proposal and revising any clauses that may be disproportionate, abusive, or illegal. (Id.)

The dissenting justices argued that, although the police authority can formulate a plea bargain agreement, the opinion of the Public Prosecutor’s Office on the terms of the agreement must be final and binding. They also argued that the police authority could submit to the judge the agreement signed with the person provided that the proposal generates only the sanctions provided for in article 4 and article 4, paragraph 5 of Law No. 12,850 of August 2, 2013 (Lei No. 12.850 de 2 de Agosto de 2013), in conjunction with a nonbinding opinion of the Public Prosecutor’s Office (id.).

Direct Action of Unconstitutionality

According to article 102(I)(a) of the Federal Constitution (CONSTITUIÇÃO FEDERAL [C.F.], art. 102(I), the STF also has original jurisdiction to try and decide direct actions of unconstitutionality (Ação Direta de Inconstitucionalidade) of a federal or state law or normative act, or declaratory actions of constitutionality (Ação Declaratória de Constitucionalidade) of a federal law or normative act. This incumbency somewhat resembles the issuance of advisory opinions, a situation not allowed in the Supreme Court of the United States, which requires the existence of an actual case or controversy to hear a case. (U.S. CONST. ART. III, § 2, amended by U.S. CONST. AMEND. XI.)

A direct action of unconstitutionality is the route by which, without injury to an individual right, a procedure is established that enables the determination of whether rules (laws or federal and state normative acts) are contrary to the constitutional command and therefore invalid. (1 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 57, 58 (São Paulo, SP: Editora Saraiva 2005).)

A declaratory action of constitutionality aims to obtain a declaration, in theory, of the constitutionality of a norm because it conforms to the Constitution. (Id. at 45.)

Article 103 of the Constitution provides that the President of the Republic, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of a Legislature or the Legislative Chamber of the Federal District, the Governor of a State or the Federal District, the Attorney General of the Republic, the Federal Council of the Brazilian Bar Association, a political party represented in the National Congress, a union confederation, or a national class entity can bring direct actions of unconstitutionality and declaratory actions of constitutionality. Law No. 9,868 of November 10, 1999, provides the procedures for the trial of these types of actions. (Lei No. 9.868, de 10 de Novembro de 1999.)