Law no. 13.964/19 (Anti-Crime Package) brought numerous changes to the criminal procedural legislation, among which the possibility for the investigated person and the District Attorney (“DA’s Office”) to sign the so-called criminal non-prosecution agreement (“NPA”), provided that the requirements set out in article 28-A of the Criminal Procedure Code are met:

i) the criminal offense committed must have a minimum sentence of less than 4 (four) years;

ii) cannot have been committed with violence or serious threat;

iii) the accused person must make a formal and detailed confession of the criminal offense committed and, finally;

iv) comply with the conditions set out in items I to V of art. 28-A, CPP (e.g. repair the damage caused to the victim, provide services to the community, pay the pecuniary benefit stipulated by the Prosecutors Office and renounce the instruments used in the commission of the crime).

Once all the requirements are fulfilled, the investigated person will not have to go through the hassles of a criminal charge before the Public Justice, as well as eventually having to serve a custodial sentence, if convicted. He remains with an immaculate criminal record.

At first, the possibility of making an agreement with the Prosecutors Office may seem like an excellent deal for those being investigated, after all, if all the requirements are met, he will not need to live the drama of being a defendant in criminal proceedings, with possible conviction, nor will it lose its status as first offender.

It turns out that, after a closer look, the choice for the NPA can have consequences in other fields, different from Criminal Law, which also need to be taken into account when deciding whether or not to make the agreement. This is because, as one of the requirements for the NPA to be signed is that the investigated person must confess the crimes for which he was investigated, this confession can be used, for example, to justify the conviction of that same person in the administrative sphere, in ongoing proceedings before regulatory bodies such as the CVM, BACEN, among others.

To illustrate, let’s imagine that someone is being criminally investigated for the financial crime prescribed in article 5, sole paragraph, of Law n. 7.492/96, which is to negotiate bonds or securities, without the authorization of its owner. This offense carries a penalty of 2 (two) to 6 (six) years of imprisonment. There is, therefore, the possibility of doing the NPA. At the end of the investigation, evidence found that this person actually committed the crime in question, which, initially, would recommend signing out a NPA with the DA’s Office.

It so happens that, as a result of this criminal investigation, the Securities and Exchange Commission (“SEC”) launched an administrative procedure to investigate the ethical violation committed by the same person, which, if it results in a conviction, could mean the impossibility of continue operating in the financial market. If the NPA is signed, the confession made by the investigated in the criminal sphere may reach the knowledge of the CVM, which will certainly use it to reason the conviction in the administrative sphere. And this would not happen if the NPA had not been signed.

Hence the importance of analyzing the pros and cons before signing the NPA, taking into account the legal situation of the investigated not only in the criminal sphere, but in all other fields (civil, administrative). It is at this moment that it makes the difference to hire a technically prepared lawyer, who weighs all these points. Come have a coffee with us to learn more about the NPA and its application in criminal proceedings.