The so-called Anticrime Package (Law No. 13,964/19) entered into force in 2020 brought  substantial changes in criminal law and criminal procedure, among them an alternative for negotiated criminal justice: the possibility of entering into a Non-Prosecution Agreement (ANPP) between the investigated party and the Public Prosecutor's Office.

Before the ANPP, at the end of the investigation (police inquiry or criminal investigative procedure conducted by the Public Prosecutor's Office), the prosecutor had two options: to request the closure of the investigation or to press charges. The innovation of the Anticrime Package gave the Public Prosecutor's Office a third option: to propose an ANPP. The agreement must be proposed only when there are sufficient elements of evidence to press charges.

According to the wording of the new article 28-A of the Code of Criminal Procedure (CPP), an ANPP may be proposed by the Public Prosecutor’s Office when:

  • the accused confesses the crime;
  • the crime was committed without violence or serious threat;
  • the crime carries a minimum sentence of less than four years.

The ANPP cannot be offered in the following cases:

  • if a plea bargain is available;
  • if the investigated person is a repeat offender;
  • if there is evidence that indicates habitual, repeated, or professional criminal conduct;
  • the investigated person has signed an ANPP, plea bargain agreement, or conditional suspension of proceedings within five years prior to the crime;
  • in crimes committed in the context of domestic or family violence or committed against a woman because of her condition as a female.

However, one year after the procedural innovation, there are still practical questions pending, especially regarding cases that were already in progress when the law entered into force. In an attempt to provide some guidance, the federal and state public prosecutor’s offices have published technical notes on the subject.

The Federal Public Prosecutor's Office (MPF) published practical instructions through the revision and expansion of Joint Guidance No. 03/18, among them:

  • an ANPP is not a subjective right of the investigated person, and may be proposed according to the peculiarities of the actual case and when considered necessary and sufficient for the discouragement and prevention of the criminal offense;
  • the investigated person may propose an ANPP and, if the proposal is refused, a request of review by a higher instance of the MPF may be filed;
  • the MPF shall notify the investigated person to appear at the headquarters of the MPF if he is interested in an ANPP. The notice shall expressly include that the settlement presupposes a formal and detailed confession of the crime and that the person under investigation must appear accompanied by a lawyer;
  • ANPPs may be entered into in ongoing criminal proceedings;
  • an ANPP shall explicitly contain a time limit for compliance with the agreement.

If all the requirements are met and the legal impediments are absent, the settlement may be proposed and negotiated, culminating in the application of certain conditions for the accused (cumulatively or alternatively), such as

  • reparation for the damage to the victim,
  • voluntary relinquishment of assets and proceeds resulting from the crime,
  • community service,
  • payment of a fine and compliance with other conditions indicated by the Public Prosecutor's Office.

Regarding the conditions to be imposed by the MPF, Joint Guidance No. 03/18 established that the reparation of the damage may be partial, when applied in conjunction with other conditions, and provided concrete examples:

  • prohibition for the investigated person to travel to the country from which the goods were unlawfully brought, in the case of smuggling (article 334-A of the Penal Code);
  • removal of the investigated person from the board of directors or control of the company, in economic crimes (Law No. 8,137/90);
  • prohibition for the investigated person to operate in the financial market for a certain period, in the case of crimes against the financial system (Law No. 7,492/86).

The Public Prosecutor's Office of the State of São Paulo (MPSP) published Technical Note No. 6 with a practical step-by-step guide for the execution of ANPPs virtually. Among the most relevant guidelines are:

  • the accused may be reached via e-mail, WhatsApp, or voice call, for the offer of an ANPP and the negotiation meeting will be virtual, via videoconference;
  • the ANPP will be face-to-face only if the accused cannot be contacted by virtual means;
  • the MPSP may, at its discretion, also contact the victim to assess the damages suffered.

In Minas Gerais, the guidelines were published by the Court of Appeals of the State of Minas Gerais (TJMG) by Joint Ordinance 20/PR-TJMG/20. According to the TJMG, the judges will have sixty days to identify cases not yet sentenced and ongoing investigations that conform to the requirements of the new article 28-A of the CPP and whose evidentiary hearing has not yet been scheduled. After identification, the defense would be summon to response regarding its interest in reaching an ANPP.

In any case, once the negotiation is closed, the ANPP shall be signed by the representative of the Public Prosecutor's Office and by the investigated person and his defender. After signing, the agreement will go through judicial review for ratification in a hearing. The judge, then, must confirm the legality and voluntariness of the agreement after hearing the investigated person, and may refuse to approve the agreement if he believes that it does not meet the legal requirements, is the result of coercion, or that the conditions imposed are inadequate, insufficient, or abusive.

If the agreement is executed, it will not appear in the criminal record certificate of the accused and, after due compliance with the conditions, the judge will order the extinguishment of criminal liability[1].

Corporate crimes, also known as white-collar crimes, are mostly eligible for ANPPs, since they have minimum sentences of less than four years (accounting for increases and decreases in sentence) and are committed without violence or serious threat.

Among the crimes related to day-to-day business activities, the environmental crimes set forth in Law No. 9,605/98 and tax crimes set forth in Law No. 8,137/90 stand out due to their volume.

For environmental crimes, in addition to the criminal settlement and the possibility of conditional suspension of the proceedings, an ANPP could be an excellent tool to speed up proceedings and make the criminal protection of the environment more efficient, reserving criminal sanctions for effectively serious cases, when there are no procedural alternatives available other than filing a complaint and initiating criminal proceedings.

With regard to tax crimes, ANPPs gain relevance because they provide the companies’ representatives with a negotiated alternative to avoid their involvement in a criminal proceeding. An ANPP may be an interesting alternative for so-called "formal crimes", i.e., those in which the criminal conduct is sufficient, regardless of the effective tax evasion.

However, for so-called "substantive crimes," in which it is essential to have  effectively evaded taxes prior to the start of a criminal proceeding, , the application of an ANPP should be carefully analyzed, since not only Laws Nos. 9,249/95 and 9,430/96, but also the higher courts have long since established payment of the tax debt at any stage of the criminal proceeding is a cause for extinguishment of liability.

If the repair of the damage is equated to payment of the tax debt, there would be no innovation in entering into an ANPP in tax crimes. On the contrary, the accused would be harmed because, in addition to paying the amount due to the tax authorities, he would have to comply with other conditions imposed by the Public Prosecutor's Office and would lose the possibility of, for a period of five years, entering into a new ANPP relating to any other crime.

[1] The victim of the crime subject to the ANPP shall necessarily be notified when the agreement is ratified and in the event of non-compliance.