Brazil has seen extensive legal changes and enforcement efforts against corruption over the past few years. As a result, local and multinational companies active in the region have increased their anti-corruption compliance efforts, particularly by introducing more frequent and comprehensive anti-corruption risk assessments and touchpoints with government entities and officials, as well as strengthening their anti-corruption compliance programmes.
Despite the steps taken by Brazil to fight corruption in recent years, it remains one of the main challenges for the country. Mindful of this, the new government – which came into power in 2018 on the back of its vow to fight corruption – has promised a series of measures to tackle the issue. The measures include toughening prison sentences for corruption-related crimes, separating investigations involving high-level officials and making illegal campaign donations a criminal offence.
The new year started with a new government taking office. Naturally, this has led many to speculate what the government's priorities and policies will be. In particular, enforcement policies are receiving more attention than during previous inaugurations, largely due to the widespread corruption scandal following Operation Car Wash and the appointment of Sergio Moro (former lead judge overseeing Operation Car Wash) as the minister of justice.
The Superior Court of Justice recently appraised a noticeable theme regarding personal data protection from a criminal law perspective: the validity of police evidence obtained from smartphones without a specific judicial order to do so. The precedent has had a strong effect on investigations of varying scope and importance. Two recent examples occurred in the wake of high-profile anti-corruption and anti-money laundering investigations.
A recent review has detailed the limited application of corporate criminal liability and the indirect legal consequences that companies may face following criminal investigations targeting individuals. Corporations may face harsh administrative and civil penalties for business crimes which only individuals can be held liable for. This is especially true where cross-border investigations result in white collar crime regulations becoming increasingly denationalised and tougher than ever before.
Brazilian law's limited establishment of corporate criminal liability does not mean that companies cannot be seriously affected by criminal law enforcement and subject to an extensive range of substantive and procedural matters. Companies' executive boards are not always prepared for such matters, which – especially when criminal investigations attract considerable media attention – can also raise serious and costly reputational issues.
After years of extensive anti-corruption investigations launched by Operation Car Wash, the national and international legal community have recognised that Brazil's enforcement of regulatory and criminal matters has become stronger than ever. While work is still needed, it is clear that the use of settlements and plea deals in Brazil is here to stay and that these methods have radically changed the local enforcement landscape.