Publications - 24/05/21

Brazilian Supreme Court may change its understanding regarding the admissibility of an award-winning collaboration agreement made by a police chief

On May 21, 2021, the plenary session of the Brazilian Supreme Court began the trial of Petition 8,482, which will decide the validity of the award-winning collaboration agreement (acordo de colaboração premiada) of the former governor of state of Rio de Janeiro, Sérgio Cabral.

The Federal Prosecutor General’s Office (Procuradoria Geral da República) presented the request for the invalidity of the agreement, by the understanding that the former governor would have acted in bad faith when giving the information. The former governor allegedly stated that Minister Dias Toffoli would have received undue advantages to benefit mayors in cases at the Brazilian Superior Electoral Court (Tribunal Superior Eleitoral).

In addition to the issue of merit, the Federal Prosecutor General’s Office (Procuradoria Geral da República) still maintains, on a preliminary basis, the invalidity of the award-winning collaboration agreement for disregarding its validity criteria, since the federal police could not have signed the agreement autonomously, without the agreement of the Federal Public Attorney´s Office (Ministério Público Federal).

In this context, it is important to address the precedent set in ADI 5,508, opportunity in which the Brazilian Supreme Court found paragraphs 2 and 6 of article 4 of Law 12.850/2013 constitutional, decision that allowed for award-winning collaboration agreements to be made by the police chief.

The Rapporteur, Minister Edson Fachin, accepted the preliminary request of the Federal Prosecutor’s Office and maintained that the police delegate does not have the legitimacy to conclude an agreement without the consent of the Public Attorney´s Office (Ministério Público). According to the Minister, the Constitution assigns, exclusively, to the Public Attorney´s Office (Ministério Público) the initiative of criminal persecution, being the only one that, within the limits of the law, can dispose it.

On the merits, however, in case of maintaining the precedent set in ADI no. 5.508, the Rapporteur voted for the validity of the agreement, since there would be no factual or legal reasons to support the claim made by the Federal Prosecutor’s Office.

Minister Gilmar Mendes, for his part, voted to invalidate the agreement between the former governor and the Federal Police, but did not manifest about the preliminary question. The Minister understood that there was evidence of criminal intent on the part of the former governor in the conclusion of the agreement. Minister Kássio Nunes accompanied this vote.

Finally, Minister Luís Roberto Barroso denied the requests of the Federal Prosecutor General’s Office to validate the award-winning collaboration agreement. In his vote, he reiterated that the Brazilian Federal Supreme Court recognized that the police chief has legitimacy for the conclusion of the agreement, in ADI 5.508.

He also affirmed that the police authority cannot guarantee benefits to the collaborator, which could only be done by the ajudge, as happened in the specific case, and therefore the agreement is valid.

The rest of the Ministers of  the plenary session will have until May 28 to conclude their votes. Should the Court form a majority to recognize the preliminary issue, there will be an important change in the procedural regime of the award-winning collaboration agreement, removing the possibility for the police delegate to do so without the consent of the Public Attorney´s Office.