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On December 24^th of 2019, the Brazilian President, Jair Bolsonaro, signed the Law 13.964/2019, most known as “anticrime Law”, which was an initiative of the Minister of Justice, Sérgio Moro. The main objective of this Law is to allegedly “improve” the Brazilian Criminal Justice.

Among the modifications introduced, we can highlight the following ones:

• the establishment of the “guarantee judge”, who will oversee the police investigations;
• the increase of the maximum incarceration time, from 30 to 40 years of imprisonment;
• changes in the statute of limitations regime, now suspending the prescriptive period with the filing of appeals to the Superior Tribunal de Justiça or to the Supremo Tribunal Federal;
• the creation of the “non-prosecution” agreement, available for crimes in which the maximum penalty is below 4 years of imprisonment and committed without violence. In order to the defendant to be eligible to this agreement, he/she needs to admit the facts during the investigative phase;
• amendments to the regulation of cooperation agreements; and
• the addition of article 91-A to the Brazilian Criminal Code, which creates new rules regarding the criminal forfeiture of products of the crime, in crimes with penalty’s over 6 years of imprisonment.

This last modification will allow the sentencing judge to decree the criminal forfeiture of the assets that correspond to the difference between the defendant’s global wealth and the value of his licit income.

This amendment should have observed the chapter on criminal procedural measures (“medidas processuais assecuratórias”) of the Brazilian Criminal Code, but it appears to be completely dissociated from it, once the new law seems to allow criminal forfeiture of property that is unrelated to the criminal process in which it may be requested and decreed.

In this matter, one example of the disproportionality of this change is the second paragraph of the article 91-A, which allocates the burden of proof on the defendant, to prove that his/her assets, which can be object of the criminal forfeiture, are licit, withdrawing the State the obligation of proving the illegal origin of the assets that are object of the confiscation.

Therefore, this innovation raises constitutionality issues, once it can be in conflict with the presumption of innocence principle, a question that probably will be taken to the Supreme Court in the near future.

This and others modifications just became effective on January 23 of 2020, when the “vacatio legis” period ended, as established by the item 20 of the new law.