The performance of the Supreme Federal Court (STF) in 2022 was marked by a series of important trials and with repercussions in the economic criminal sphere.

With the arrival of a new year, the Supreme Court resumes the agenda of discussion of criminal cases of great impact on the routine of individuals and legal entities in Brazil.

Some of the following criminal cases are among the most awaited for court review in 2023:

1. International legal cooperation in criminal matters for access to internet data stored in providers abroad

The Declaratory Action of Constitutionality 51 (ADC 51), proposed by the Federation of Associations of Information Technology Companies, addresses access to data of internet users stored in providers abroad, as well as the procedure determined by the Legal Assistance Agreement in Criminal Matters signed between Brazil and the U.S. (MLAT – Decree 3,810/01)

The importance of the theme is due to the possibility provided by the agreement to request information and data considered relevant by the Brazilian authorities directly to content providers located abroad.

The case, which has wide practical repercussions for the investigation of cybercrimes in Brazil and has the participation of technology giants such as Facebook and Yahoo how amici curiae, is in a vote-view with The Minister Alexandre de Moraes of the Supreme Court since October 2022, but should return to the agenda of the plenary of the Supreme Court soon, according to the minister.

2. Limits of telephone secrecy in police investigations

Another highly anticipated trial, initially scheduled for mid-2022, is that of the Extraordinary Appeal 1,042,075 (ARE 1,042,075), which deals with the possibility of access to material contained in electronic device found fortuitously by the police authority at the crime scene.

More than that, the trial also determines the lawfulness of the evidence collected from this device, determining whether the performance of expertise in this case would constitute a violation of the confidentiality of communications and telephone secrecy.

In the corporate environment, the case has significant repercussions that go beyond the criminal sphere, starting with aspects related to data protection in the collection of evidence from electronic devices of executives of large companies involved in corruption scandals, for example.

For this reason, the expectation is that the Supreme Court delimits proportionality criteria in the collection of these means of evidence, establishing limits and guidelines for police action in these cases.

3. Constitutionality of criminalization of gambling in Brazil

With a long-awaited trial and pending since 2016, when the Supreme Court recognized the general repercussion of the matter, Extraordinary Appeal 966.177, which has as rapporteur Minister Luiz Fux, deals with the constitutionality of the typification of gambling in the country.

The theme, which has already been the subject of article on our website, has great relevance for the recognition of the legality of the operation of gaming and betting operators in the country. Currently, the practice of exploiting or establishing gambling constitutes an illicit act punishable by detention from three months to one year and a fine, as determined by Article 50 of the Criminal Misdemeanors Act (Decree-Law 3,688/41).

Based on an extraordinary appeal brought by the Public Prosecutor's Office of Rio Grande do Sul, however, the Supreme Court was urged to speak on the reception of the provision by the 1988 Constitution, which privileges economic freedom and free enterprise. The trial of the case, initially scheduled for April 7, 2022, was postponed by the Supreme Court and waits to be put back on the agenda.

4. ANPP retroactivity

There is also pending discussion on the retroactivity of the application of the Agreement on Non-Criminal Prosecution (ANPP) for crimes committed before the validity of the Anti-Crime Package (Law 13,964/19). That is, the Supreme Court must decide whether, for crimes committed before January 2020, it is possible to apply the ANPP.

Introduced in Brazilian legislation by Law 13.964/19 (which added Article 28a to the Code of Criminal Procedure), the ANPP represents an important decriminalizing mechanism for the extinction of punishability of individuals and/or legal entities involved in criminal proceedings, through compliance with requirements proposed by the Public Prosecutor's Office.

This is an innovative agreement for the national legal system, applicable for crimes whose minimum sentences are less than four years in detention.

Thus, from the validity of the Anti-Crime Package, it is possible to apply the ANPP for crimes such as swindle, corruption, embezzlement, use of counterfeit currency, as well as crimes against the environment and the tax order, for which, before the validity of the law, would not be applicable other decriminalizing institutes, such as the conditional suspension of the process and the criminal transaction.

In this sense, the Habeas Corpus 185,913, filed in May 2020, deals with the possibility of a proposal for an agreement to reverse the conviction of a defendant based on the principle of retroactivity of the most positive standard for the imputed.

With the retroactivity of the law, the defendant would be able to benefit from  ANPP and, if the agreement is executed, the conviction will be reversed. This would open scope for the review of other convictions, prior to 2020, pending final judgment, if the defendants meet the requirements for conclusion of the ANPP.

5. Impacts of award-winning collaboration on administrative misconduct actions

 Another important topic under consideration in the Supreme Court – and which had its judgment suspended in 2022 – refers to the Extraordinary Appeal 1,175,650 (ARE 1,175,650), which deals with the possibility of using an award-winning collaboration agreement to avoid sanctions imposed in a public civil action of liability for an act of administrative misconduct.

By mid-December 2022, the Court had resumed the trial of the case, the controversy of which refers to recent amendments in Article 17, § 1, of the Law of Administrative Improbity. This rule prohibited agreements and transactions for acts of administrative misconduct, but from 2021, it began to expressly provide for the possibility of concluding agreements, provided that the damage caused is fully reimbursed.

The issue affects companies and individuals involved in public civil lawsuits filed by the Public Prosecutor's Office, representing an important leading case for the establishment of limits on the applicability of collaboration agreements awarded in the Brazilian legal system.