PARTICIPANTS’ PAPERS
THE BRAZILIAN LEGAL FRAMEWORK FOR INVESTIGATION,PROSECUTION AND TRIAL OF TRANSNATIONAL ORGANIZED CRIME
Fernando Cesar Costa*
I. INTRODUCTION
This essay expounds the current Brazilian legal system for combating national and transnational criminalorganizations, detailing especially the domestic legal regime of investigation, prosecution and trial for
combating this international threat.
In this regard, studies were based on the Federal Constitution and on well-grounded laws, decrees,international conventions and protocols pertaining to the guiding principles for fighting organized crime,
which Brazil has ratified and introduced into its legal system.
In order to enrich the information made available through this paper, factual analyses concerning Brazil’s
situation in reference to actions of transnational criminal organizations have been included, along with somedata relating especially to narcotics trafficking in neighbouring countries in South America, such as
Colombia, Peru, Bolivia and the tri-border region, involving Brazil, Argentina and Paraguay.
According to the terms of Article 5 of the Federal Constitution, Brazil is committed to the international
community and to its own citizens in being vigilant towards the rule of law, respect for human rights, liberty,
equality and the right to life itself, without any distinction whatsoever. Despite that, there are no articles in
the Constitution with literal references to the investigation, prosecution, trial or punishment of transnationalorganized criminal activities. On the other hand, repudiation of crimes of terrorism and racism is expressly
mentioned by Article 4 of the Federal Constitution as a guiding principle of the international relations ofBrazil.
In fact, the Federative Republic of Brazil has made the same mistake as most countries in the world:
considering transnational organized crime as a criminal question and adopting towards it the same legal
statements as adopted for ordinary crimes, disregarding that these kinds of organizations work with different
methods than ordinary criminal groups. Most transnational criminal organizations are characterized,
nowadays, by the absence of a standard hierarchy,1 represented by the existence of multiples cells withconsiderable power of decision instead of despotic leaders; the choice of a variety of transactions according
to market opportunities; and still, the adoption of sophisticated techniques for the suppression of evidence of
their criminal practices.
These characteristics make the investigation and prosecution of transnational organized crime a very
difficult and complex task, especially in identifying and punishing the ringleaders (the real core of thoseorganizations) in any country of the world and not necessarily where the actions took place. It could not be
different in Brazil.
However, as will be demonstrated, in spite of the lack of constitutional statements relating totransnational organized crime, the Brazilian Government has developed an infra-constitutional legal system
based mostly on international conventions and protocols pertaining to the matter (e.g. the Palermo
Convention, signed in 2002 and adopted as a federal law in 2004). The commitment to international
standards and mutual co-operation led to the creation of procedures for facilitating the investigation oforganized crime activities, such as (i) electronic surveillance (wire-tapping, phone call and internet
communications interception, etc.); (ii) undercover operations; (iii) controlled delivery of illegal drugs; (iv)witness and victim protection; and (v) methods for obtaining co-operation from people involved in criminalorganizations, by extinction of punishment or reduced penalties (mechanisms similar to plea bargaining or
plea of guilty adopted by the United States of America’s legal system, which grants reduction from one to* Police Chief – Deputy Director of Special Division for Combating Organized Crime, Civil Police of the Federal District, Brazil.
1 Criminal organizations with strong cultural and ethnic influence still adopt a standard model of hierarchy, like some Italian andSouth American Mafia, as well as the Japanese Yakuza.

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two thirds of the penalty in case of spontaneous collaboration that leads to a solution of penal infractions andtheir authorship).
The international conventions and protocols signed by Brazil – in addition to the legislation concerningmoney laundering prevention and prosecution – form the legal framework that will be detailed in this essay,
as the starting point for an overview of the investigation and criminal procedures adopted in the country.
The major problems concerning the investigation, prosecution and trial of criminal organizations will also
be covered, with special emphasis on the lack of co-operation and commitment by the judiciary members andprosecutors with the police investigations, difficulties with undercover operations and the corruption which
affects some state polices and local Judiciary Powers at a level which harms the whole local institution.

II. TRANSNATIONAL ORGANIZED CRIME AS A WORLDWIDE MENACE
The process of globalization brings, besides an expansion of legitimate international commercial
transactions, a great increase in illegal activities by criminal organizations, which represent a threat to every
country in the world, especially because they restrain the development or improvement of quality of life.
The challenge facing nations today is to create an international environment inhospitable to criminalorganizations, in order to achieve some effectiveness in the struggle against this worldwide menace.
Criminal organizations share the misguided belief that killing, kidnapping, extorting, robbing, and trafficking
illegal drugs, firearms and people will overrule the legally formed sovereign States, by the imposition of
their own distorted rules, formed in absolute disregard to the fundamental rights so dear to humankind.
Brazil is especially affected by the growth of transnational criminal organizations related to drugtrafficking. The increase of illegal drug demand all over the world transformed Brazil to an important link in
the chain between producer and costumer countries, due to its location and size. This situation strengthened
national criminal organizations such as PCC (Primeiro Comando da Capital - First Command of Capital) andCV (Comando Vermelho - Red Command), and encouraged the establishment of transnational criminalorganizations in the national territory.
In a continental sized country like Brazil, in the middle of the path between the South American drug
producers and European customers, transnational criminal organizations have found the ideal conditions for
acting not only in the illegal trafficking of drugs, but also in activities related to illegal gambling, money
laundering, extortion, firearms and people trafficking.

III. TRANSNATIONAL CRIMINAL ORGANIZATIONS ESTABLISHED IN BRAZIL
The main strategy for combating transnational crimes in Brazil has been the intelligence monitoring of
criminal organizations, which has been executed by the police forces in their levels of competence as well as
by the Brazilian Intelligence Agency (ABIN), established by Federal Law No. 9,883 of 7 December 1999.
ABIN is responsible for the planning, execution, co-ordination, supervision and control of all intelligence
activities and information systems in Brazil; always furnishing precise and reliable data to the President of
the Republic and its Ministers about strategic matters, including the activities of criminal organizations.
In the co-ordination of the Brazilian Information System (SISBIN), ABIN supplies the Federal and State
police forces with information about national and transnational criminal organizations acting in the national
territory, aiming at their effective repression.
Its intelligence monitoring activity has detected the following transnational criminal organizations generally named in this essay by the word “mafias” - acting in Brazil:

A. The Italian Mafias
Since 1972, Brazil has identified organized criminal activities related to Italian criminal organizations such
as La Sacra Corona Unitá , Camorra, Cosa Nostra, La Nuova Famiglia, Máfia E Sttida, and N’Drangheta. In
that year, a criminal operation between La Sacra Corona Unitá and Corsa Union (a French-Italian criminalorganization) was discovered and called the Ilhabela Connection. The plan was to establish a chain of pubs

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and restaurants on the coast of two important Brazilian states, São Paulo and Rio de Janeiro, as a disguise forillegal drug trafficking from cocaine producing countries in South America to Europe and the United States.
Many leaders of these organizations have been arrested in Brazil since then, namely Tomaso Buschetta(Camorra), Antonio Salomone (Cosa Nostra), Umberto Ammaturo (Camorra), and Marco Pugliese (Sacra
Corona Unita). The investigation into drug trafficking and money laundering was made in collaboration
between Brazilian police forces and the International Criminal Police Organization – (ICPO, commonly
known as Interpol). Nowadays, the Italian criminal organizations have been active in Brazil, especially on
firearms, drugs and persons trafficking, illegal gambling, prostitution, and money laundering; their territorial
bases are settled in the states of São Paulo and Rio de Janeiro, and at the northeastern coast of Brazil,
especially in capital cities such as Fortaleza, Natal, Recife and Salvador.

B. The Japanese Mafia: Yakuza
In 1993, the Brazilian Federal Police discovered a Yakuza operation involving cocaine trafficking from São
Paulo to the Shizuoka region of Japan. The operation was commanded by Hitoshi Tanabe, one of the leadersof the Japanese mafia, who ended up charged with drug trafficking. In fact, the Brazilian Federal Police
discovered during the investigation that the Yakuza had bases in Brazilian territory, concentrating theiractivities in the states of Paraná – where Hitoshi Tanabe was found – and São Paulo. More recently, in 2003,
another Yakuza operation was frustrated. This time, the operation was related mainly to human trafficking(illegal immigration and slavery), but the same structure was also used for illegal drug and firearms
transactions.
C. The Chinese Mafias
Since the late 1990s particularly, with the opening of national borders for worldwide commerce, Chinesecriminal organizations have been increasingly active in Brazil. The Chinese mafias concentrate their illegal
practices on smuggling, falsification of high end products, human trafficking, and fraud with mobile phones
and credit cards. In Brazil, the Chinese mafia used to concentrate its activities in the São Paulo state, where
the Chinese community is based. However, more recently, it has been spreading its activities all over thecountry, in spite of the arrest and trial of one of its main leaders.
D. The Russian Mafias
The association between the Russian mafia and the Cartel of Cali (a Colombian criminal organization),
discovered in 2001 during the investigations involving Rudolf Ritter and his company, called St. Petersburg
Holding Company, revealed a money laundering network developed by these organizations. At the beginningof that year, the Brazilian Federal Police arrested Mario Kronenberg, a member of the Russian mafia who
was trying to transport cocaine from São Paulo to Europe. Those operations revealed the use of Brazilian
ports and airports by Russian criminals, involved in drug trafficking from Colombia to Russia, using Brazil asa main corridor between those poles, confirming once more the relevance of Brazilian locations for those
activities.
E. The African Mafias
After the establishment of police forces specialized in the combat of drug trafficking in South and Central
America, the international criminal organizations adopted new strategies for maintaining these illegal
practices. Among other strategies was the establishment of bases in several African countries, especially
Niger and Mozambique, which function as the doorway for drug distribution in Europe. In Brazil, Federal
Police and Civil Police of the São Paulo State have been developing several investigations into Nigerian
criminal organizations, learning that the focus of their deeds is drug trafficking to Europe. The investigations
developed by those forces demonstrate, also, that Nigerian mafias started their activities in Brazil by
prostitution, and generally used people involved in those activities for transporting drugs from the city ofSão Paulo (Guarulhos Airport) to Africa. Drug trafficking was so intense that since 2004, approximately
1,100 kg of illegal drugs have been apprehended there each year. Nowadays, the Nigerian Mafias havesettled mainly in the central region of the city of São Paulo (in the neighbourhoods of Bom Retiro,
Consolação, Liberdade e Santa Cecília) and have changed their routes and started to use the airports of cities
like Recife and Fortaleza, on the northeastern coast of Brazil, as these terminals are not as tightly controlled
by police forces as the southeastern airports, which were traditionally used by criminal organizations (SãoPaulo and Rio de Janeiro).

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F. South American Mafias
The primary activity of the South American transnational criminal organizations is drug trafficking. As
demonstrated by the United Nations Office for Drugs and Crimes,2 Colombia, Peru and Bolivia are the threemajor producers of cocaine in the world, responsible for 56%, 28% and 16%, respectively, of the whole world
drug production in the year of 2004 (around 687 t). The model of criminal organizations traditionally adopted
in those countries - a standard hierarchy group, commanded by a single leader, with a relatively clear
hierarchy and strong social and ethnic identities among their members - has changed due to the increase of
the repression of the activity, managed especially by the DAS, the anti-drug unit of the United States ofAmerica. The DAS, since the 90s, has worked in collaboration with the government of those countries. In
fact, with the exception of the Colombian Revolutionary Army (FARC), the biggest criminal groups, such as
Cartel de Cali and Cartel de Medellin, were broken by law enforcement in the 90s, and were replaced bysmall regional organizations. Unfortunately, it seems that repression of the activities of small groups is also
very difficult. In the Brazilian case, national criminal organizations such as PCC and CV are buying drugs
directly from the small groups in those three neighbouring countries. In fact, there are three big corridors
for cocaine and marijuana entrance in to Brazil, destined not only for the European, Asian and African
markets, but also the national market. The three corridors are: the North corridor (consisting of the states of
Amazonas, Pará, Maranhão, Piauí and Ceará), the Central corridor (the states of Acre, Rondônia, Mato
Grosso, Goiás, Minas Gerais and Espírito Santo) and the South Corridor (the states of Mato Grosso do Sul,
Paraná, Santa Catarina, Rio Grande do Sul, São Paulo and Rio de Janeiro). Side by side with the entrance ofdrugs, there is intense firearm trafficking, aiming at the preparation of criminal organizations against police
repression and also aiming at the execution of robberies against financial institutions and vehicles andairplanes transporting valuables.
IV. BRAZIL’S LEGAL REGIME FOR COMBATING ORGANIZED CRIME
A. The Brazilian Constitutional Statements about Material and Procedural Warranties
The most important written document in Brazil’s legal regime is the 1988 Constitution of the Federative
Republic containing 250 articles with dozens of paragraphs and sections and hundreds of items, 54
amendments and six revision amendments, regulating the country’s entire legal system and guaranteeing
the free exercise of the Executive Power, the Legislative Power, the Judicial Power, the Public Prosecution
and the Constitutional Powers of the units of the Federation.
As explained before, all offences perpetrated by transnational criminal organizations will be punished by
the Brazilian judiciary in accordance with the prescriptions of the Palermo Convention, but also in strictobedience to the constitutional commands that establish material and procedural warranties for all citizens
living in the country, such as the following:
(i)
(ii)
(iii)
(iv)

(v)

(vi)

There shall be no exceptional tribunal or court (Article 5, XXXVII);
There is no crime without a previous law to define it, nor a punishment without a previous legal
sanction (Article 5, XXXIX);3
Penal law shall not be retroactive, except to benefit the defendant (Article 5, XL);The practice of torture, the illicit traffic of narcotics and related drugs, as well as terrorism, andcrimes defined as heinous crimes shall be considered by law as non-bailable and not subject tograce or amnesty, and the principals, agents and those who omit themselves while being able to
avoid such crimes shall be held liable (Article 5, XLIII);No punishment shall go beyond the person of the convict, and the obligation to compensate for thedamage, as well as the decreeing of loss of assets may, under the terms of the law, be extended tothe successors and be executed against them, up to the limit of the value of the assets transferred(Article 5, XLV);The law shall regulate the individualization of punishment and shall adopt, among others:
deprivation or restriction of freedom; loss of assets; fine; alternative rendering of social service;suspension or deprivation of rights (Article 5, XLVI). Furthermore, there shall be no punishment ofdeath, save in the case of declared war, under the terms of Article 84, XIX; of life imprisonment; of
hard labour; of banishment; which is cruel (Article 5, XLVII).

2 “Coca Cultivation in the Andean Region – A survey of Bolivia, Colombia and Peru”, June 2005, http://www.unodc.org/pdf/

andean/Part1_excutive_summary.pdf
3 This article demonstrates the adoption by the Federal Constitution of the Vagueness Doctrine.

68134TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(vii) Extradition of a foreigner on the basis of political or ideological crime shall not be granted (Article 5, LII);(viii) No one shall be deprived of freedom or of his assets without the due process of law (Article 5, LIV);(ix) No one should be considered guilty before the issuing of a final and unappealable penal sentence(Article 5, LVII);(x)
Private prosecution in the cases subject to public prosecution shall be admitted, whenever thelatter is not filed within the period established by law (Article 5, LIX);(xi) No one shall be arrested unless in flagrante delicto or by written and justified order of a competentjudicial authority, save in the cases of military transgression or specific military crime, as defined inlaw (Article 5, LXI);(xii) The arrest of any person as well as the place where he is being held shall be immediately informed
to the competent judge and to the family of the person arrested or to the person indicated by him(Article 5, LXII);(xiii) The arrested shall be informed of his rights (among which is the right to remain silent, and he shallbe ensured of assistance by his family and a lawyer) and be entitled to identification of those
responsible for his arrest or for his police questioning (Article 5, LXIII and LXIV);(xiv) No one shall be taken to prison or held therein, when the law admits release on own recognizance,
subject or not to bail (article 5, LXVI).
The Brazilian Federal Constitution also establishes rules about extradition, and adopts as fundamental
warranty the statement that “no Brazilian shall be extradited, except the naturalized ones in the case of acommon crime committed before naturalization, or in the case there is sufficient evidence of participation in
the illicit traffic of narcotics and related drugs, under the terms of law” (Article 5, LI).
About the evidence obtaining procedures, the Federal Constitution establishes that evidence obtained
through illicit means is unacceptable in the process (Article 5, LVI), as well as that the secrecy ofcorrespondence, financial data and telephone communications are inviolable, except if a written judicial orderis obtained in order to break this secrecy, in the manner prescribed by an ordinary law, for purposes ofcriminal investigation or criminal procedural finding of facts (Article 5, XII).
The Constitution, in Article 5, XI, also establishes the home as a “refuge of the individual ”, prohibiting
anyone to enter without the consent of the dweller, except in the event of flagrante delicto or disaster, toprovide help, or during the day by court order. Because of that, home searches for criminal evidence must be
preceded by a judicial order, upon a police or prosecutor request. Home searching is done under the rules
dictated by the Articles 245/248 of the Criminal Procedure Code.
It is important to make clear that Article 5, paragraph 2 of the Constitution also states that the rights andguarantees expressed in the Constitution do not exclude others deriving from the regime and from theprinciples adopted by it, or from the international treaties to which the Federative Republic of Brazil is aparty, of course, after the adoption of its statements by the Brazilian National Congress.
In fact, the Brazilian National Congress holds exclusively the competence to decide conclusively oninternational treaties, agreements or acts which result in charges or commitments that go against national
property (Article 49, I of the Constitution). Such competence is to be exercised through a legislative decree.
The President of the Republic has exclusive power to sanction, promulgate and order the publications of law,as well as to issue presidential decrees and regulations for the true enforcement thereof (Article 84, IV of
the Constitution). The President may also conclude international treaties, conventions and acts adreferendum of the National Congress (Article 84, VIII of the Constitution).

B. An Overview of Criminal Procedures:
The Police Inquiry (Investigation) and Criminal Procedure (Prosecution) in Brazil
1. The Military and Judicial Polices
Under Article 144 of the Federal Constitution, public safety is a duty of the State and the right andresponsibility of all citizens, being exercised to preserve public order and the safety of persons and property,
by means of the following institutions:(i)federal police(ii) federal highway police

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(iii)
(iv)
(v)

federal railway police
civil police
military polices and military fire brigades.4

As demonstrated, the police forces in Brazil are organized primarily at the state level, rather than thenational or local level (Art. 144, I to V). Although Brazil does have a federal police force, as well as specialized
federal police authorities for highways, railways, and ports, the Brazilian Constitution, in the aforementioned
Article 144, assigns to the state police forces the responsibility for the investigation of the vast majority ofcriminal activities, excluding from their authority only military crimes (Art. 144, Paragraph 4).
The duties of the Federal Police include prevention of interstate and international drug trafficking andsmuggling, protection of the country’s borders, and the execution of orders demanded by federal judges,
such as execution of arrest warrants for those indicted on federal offences, for instance.
In Brazil, the state police are divided into two nearly autonomous entities, the civil and military police(Art. 144, IV and V), both of them under the control of the state governor, even though the military police
forces are also auxiliary and reserve units of the National Army.
The two police forces are divided according to functional lines: the military police is a uniformed force
which patrols the streets, maintains public order, and may arrest suspects caught in the act of committing
crimes. It is also the military police who usually respond to crimes while they are in progress, while the civil
police investigate crimes once they have already occurred and been reported.
The civil police work as the states’ judicial police and are authorized by law to perform investigations
which are run by precincts. Each precinct is run by a precinct chief called by the Constitution Delegado dePolícia, who must hold a law degree.
The Brazilian Constitution also empowers the Public Prosecutors Office to exercise external control overpolice activities under the terms of the Supplementary Law 75, of 20 May 1993. This external control shallbe used to establish co-operation between prosecutors and police authorities, facilitating the procedures for
obtaining evidence, and improving the repression of any kind of crime. However, the practical application ofthis rule created a gap between police authorities and prosecutors that contributed to the decrease of thecredibility of the Brazilian criminal justice system in general.
2. The Police Inquiry
Once a crime has occurred, a police inquiry (inquérito policial ), conducted by the Civil Police Chief, may
be initiated by written orders of the appropriate police authority ex officio, at the request of the victim or
offended party, or by orders of the judge or the public prosecutor's office. Inquiries must be opened
whenever the police are informed of a possible violation of the penal code (Criminal Procedure Code,
Articles 4 and 5).
Once an investigation is started, the police must collect as many facts as possible about the crime,
conduct all necessary examinations of the crime scene and, if there is enough evidence, state the likely
authorship (Criminal Procedure Code, Art. 13). The police must take a statement from the victim, when it ispossible, and may undertake any investigation considered necessary, including interviewing witnesses andcollecting physical evidence, which must be sent for expert examinations.
Searches of homes (which must occur during daytime due to Art. 5, XXXIX of the Federal Constitution),and other evidence obtaining procedures such as preventive detentions; undercover operations; electronic
surveillance; wire-tapping recorders; communications (eg. phone calls or internet communications)interception; freezing, seizure or confiscation of property, may only occur during the inquiry, by written
orders of the judge with jurisdiction over the matter, or by request of the police chief or the prosecutor. Due
to Article 13, II, of the Criminal Procedure Code, either the prosecutor or the judge can require the police to
4 Complementary Laws Nos. 97 of 9 June 1999 and 117 of 2 September 2004 allow that both the Armed Forces and the Public

Safety Institutions work together when necessary to re-establish the rule of law and public order.

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conduct additional investigations at any time during the inquiry.
The time limit for the civil police to conclude an investigation is, ordinarily, 30 days if no one is being heldin detention (Criminal Procedure Code, Art. 10), and ten days if a suspect has been arrested, except in casesof federal crimes and trafficking of illegal drugs, in which cases the term is 15 days if a suspected has beenarrested (Federal Law 5,010 of 30 May 1966, Art. 66; and Art. 29 of Federal Law 10,409 of 1 November
2002). If these time limits are exceeded, the judge (usually at the request of the police chief or theprosecutor) can extend the investigation for the same period. In practice, the time limits established by law
for the end of the inquiry are almost never met, especially in complex investigations like those of criminalorganizations.
In relation to the period of prosecution, it is important to mention punitive prescription under theBrazilian law system. The Criminal Code, in Article 109, states that if a person is not convicted within acertain period of time after the beginning of the criminal proceedings, the State is no longer able to punish
the offender. This period of time varies according to the gravity of the crime, and it ranges between two andtwenty years. The initiation of criminal proceedings against a defendant does not stop (“toll”) the statute oflimitations.
The police inquiry may only be closed by order of the judge, ordinarily at the request of the prosecutor orby suggestion of the police chief who writes the final report on the result of the investigation (Criminal
Procedure Code, Art. 17 and 18).
3. The Criminal Procedure
Once investigations are finished, the police chief must write a detailed written final report to the judge.
This final report is passed on to the prosecutor to determine whether a suspect should be accused. An
accusation (denúncia) may be issued whenever the prosecutor determines there is enough prima facie
evidence to so justify (Criminal Procedure Code, Art. 41 and 43). If the prosecutor or the judge believes thatfurther police investigation is necessary, they may order it to be undertaken by the police.
In the case of homicides, the procedure is not the same, as it is the only kind of crime in which a trial isheld before a jury composed of citizens. Due to this peculiarity, there is an initial phase of the process which
ends by an indictment sentence in an ordinary court. The prosecutor’s indictment request (pronúncia) may
be rejected by the judge if he or she decides there is not enough evidence of the existence of the crime orevidence of individual responsibility. If the request is accepted, the judge orders the case to proceed to theaforementioned trial, which under Brazilian law is held before a jury composed of seven citizens (Federal
Constitution Art. XXX, and Art. 433, of the Criminal Procedure Code).
As has already been said, there are no special rules in the Brazilian criminal procedural system for theprosecution or trial of criminal organizations, but there are laws that created tolls for evidence obtaining
procedures following the prescriptions of the Palermo Convention,5 which deals with electronic surveillance;
undercover operations; controlled delivery of illegal drugs; procedures to detect and punish money
laundering activities such as freezing and seizure; property confiscation procedures; witness and victim
protection; and methods for obtaining co-operation from co-defendants involved in criminal organizations, byextinction or reduction of punishment.

C. Brazilian Legislation for Combating Organized Crime and the United Nations Convention against
Transnational Organized Crime
1. The United Nations Convention against Transnational Organized Crime and The Brazilian Criminal Code(Law Decree No. 2,848 of 7 December 1940)
The Brazilian Government has adopted the United Nations Convention against Transnational Organized
Crime by the introduction to its legal system of the Federal Decree 5,015 of 12 March 2004.

5 In fact, most of these prescriptions were adopted by the Brazilian legal system before the signing of the Palermo Convention by

the Government, as the laws which contain such prescriptions began to be edited in 1995.

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This fact brought into national legislation the concepts of organized criminal group,6 structured group7
and serious crime,8 however, this occurred without the creation of a specific notice to punish organizedcriminal groups. So, due to the Vagueness Doctrine,9 the applicable notice for an action of creating a
structured and organized group to practice ordinary crimes, serious or not, is that of Article 288 of the
Criminal Code (Gang Crime), which establishes a penalty of one to three years in prison, increased to apenalty of two to six years if the crime is committed by armed gangs. A group of at least four people isnecessary to characterize a gang.
With regards to organized gangs formed with the objective of trafficking drugs, Article 14 of Federal Law
6368/76 reduces the numbers of members necessary to characterize the crime to a minimum of two people
and states that the penalty ranges from three to ten years in prison.
These points demonstrate that the definitions brought into the Brazilian system by Federal Decree 5,015
of 12 March 2004 were not completely unknown before, and were useful in order to clear and limit thepossible use of the instruments created previously by Federal Law 9,034 of 3 May 1995, in investigations
and criminal procedures against criminal organizations.
2. The United Nations Convention Against Transnational Organized Crime and Federal Law 9,034 of 3 May
1995 (Altered by Federal Law No. 10,217 of 11 April 2001)
In 1995, seven years before the ratification of the United Nations Convention against Transnational
Organized Crime, signed in Palermo, Italy, in 2002, the Brazilian Government included, in its legal system,
an important instrument for combating any kind of criminal organization. The initiative brought to the law
enforcement authorities new tools for evidence gathering, such as (i) controlled action, such as delaying thearrest of a suspect until a better moment in order to obtain evidence; and (ii) free access to financial andfiscal information.
Six years later, Federal Law 10,217 of 11 April 2001, modified the statements of these rules, and added
new procedures such as (i) electronic surveillance and wire-tapping, (ii) undercover operations, and (iii)measures to enhance co-operation with law enforcement authorities by granting the possibility ofpunishment reduction from one to two thirds of the penalty to those participants of the organized criminalgroups who supply information useful for investigative and evidentiary purposes on such matters as theidentity, nature, composition, structure, location or activities of organized criminal groups; as well as
offences that organized criminal groups have committed or may commit.
With regards to what has been said about the constitutional guarantees, all these instruments must be
preceded by a judicial order, and are covered by an inviolable secrecy that is broken only after the formal
accusation.
3. Federal Law 9,296 of 24 July 1996 - Phone Calls and Data Communications Interception
In accordance with Federal Law 9,296, in force since 1996, the interception of phone calls and data
communications is authorized upon previous judicial order. Furthermore, it may be used only for criminal
investigation and penal procedural instruction, on request from the police chiefs charged with theinvestigations or by the prosecutor.
6 The United Nations Convention Against Organized Crime establishes that (a) “organized criminal group” is a structured groupof three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious
crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or othermaterial benefit.
7 “Structured group” shall mean a group that is not randomly formed for the immediate commission of an offence and that does
not need to have formally defined roles for its members, continuity of its membership or a developed structure.
8 “Serious crime”, according to the same UN Convention, shall mean conduct constituting an offence punishable by a maximum
deprivation of liberty of at least four years or a more serious penalty.
9 Under this principle, a law which does not fairly inform a person of what is commanded or prohibited is unconstitutional as
violative of due process of law. This is the doctrinal basis for striking down legislation which contains insufficient warning of what
conduct is unlawful. It requires that penal statutes give notice to the ordinary person of what is prohibited and proved definite
standards to guide discretionary actions of police officers so as to prevent arbitrary and discriminatory law enforcement. It was
adopted by the Brazilian Federal Constitution, Article 5, XXXIX.

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According to Article 2, the request of public authorities must demonstrate the following situations:(i)reasonable evidence of authorship of the crime under investigation;(ii) high relevance of the fact that is being investigated, which must characterize a crime punishable by
the law with prison (reclusão), such as the offences of illicit trafficking of drugs, kidnapping, money
laundering, firearm trafficking, armed robberies, etc.;(iii) inexistence of other ways to obtain the desired evidence.
Despite the fact that nowadays there are several different systems of telephone and data communications(Internet, MSN Messenger, e-mails, Voice over Internet Protocols, etc.), phone calls and data interception
are used as an important tool for collecting evidence about all serious crimes mentioned. The interception isespecially important in obtaining evidence of crimes committed by criminal organizations, as thecommunication usually proves the contacts between the groups and clarifies the participation of eachmember. In its investigations regarding criminal groups, the Brazilian police usually intercept calls andcommunications for periods of time between six to twelve months, achieving reasonable success.
4. Legal Tools for Obtaining Co-operation from People Involved in Criminal Organizations – Federal Law
9,034 of 3 May 1995 (altered by Federal Law No. 10,217 of 11 April 2001); Federal Law 9,807 of 13
September 1999; Federal Law 10,409 of 1 November 2002
According to the Brazilian legal system for combating organized crime – stated, at this point, in Federal
Laws 9,034/95 (organized crime), 9,807/99 (spontaneous collaboration with criminal justice) and 10,409/02(drug trafficking) – the national system does not grant total immunity for the participants of organizedcriminal groups. There is only the potential punishment reduction from one or two thirds or punishment
extinction, when the spontaneous collaboration of the author will lead to clarifying the penal infractions andtheir authorship.
The precepts of judicial pardon existent in Federal Law 9,807/99 (Art. 13 and 14) have brought practicalbenefits in combating organized crime in Brazil, especially the illegal drug trafficking investigations andprosecution.
These statements were brought into the national legal system sixteen years ago by the Law of Violent
Crimes (Federal Law 8,072 of 25 July 1990) and have been applied with success in investigation andprosecution stages of the application of penal law, despite the knowledge of the delinquents of the possibilityof violent consequences resulting from the betrayal of their accomplices.
Another measure contained in Federal Law 9,807/99 for obtaining co-operation from people is theProgram for the Protection of Victims and Witnesses, which can be requested (i) by the witness himself, (ii)by the victim, (iii) by the Department of Justice, (iv) by the police, or (v) by public agencies and entities forthe defence of human rights. Whether the protection will be granted or not is decided by the judge
responsible for the criminal process, and includes the following measures:(i)Transference of residence(ii) Monthly financial aid per person(iii) Food and clothing supplies(iv) Safety when traveling from one place to another(v)
Help in finding a new job(vi) Removal of public employees without loss of remuneration(vii) Social, psychological and medical assistance(viii) Change of identity.
5. The Controlled Delivery Recommended by Art. 20 of the United Nations Convention and Federal Law
10,409 of 1 November 2002
With regards to Article 20 of the United Nations Convention against Organized Crime, Brazil had adopted
the controlled delivery of illegal drugs as an investigative technique for combating criminal organizations
even before the adoption of the UN Convention as an internal law. This new investigative technique wasintroduced to the Brazilian legal system by Article 33 of Federal Law 10,409/2002.
This law represents a great advance in combating organized crime in Brazil, as before it, the73

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constitutional and penal laws principles were interpreted in a way that prevented the usage of the method ofcontrolled delivery. It was said that once the police had the duty of arresting any person caught in the act ofcommitting a crime or who was found attempting to commit, committing, or right after committing thecrime; if the arrest was not immediately executed, the police agents would be committing a crime named
Prevaricação, which consists of not doing what a public servant is supposed to do according to law. Suchinterpretation was finally overruled, with the help of the new legal statements, which brought a new light tostudies on the matter.
Federal Law 10,409, Article 33, detailed norms regulating this investigative technique, such as:(i)
A statement that the request is a duty of the police authorities, and ought to be precededby a judicial order after the prosecutor’s opinion;(ii) Demonstrations that the most likely itinerary of the drug transportation is previously known;(iii) In the case of transnational transportation, a previously issued warrant of the foreign authorities toassure the arrest of people involved and the apprehension of the drug.
The practical experience in combating organized drug trafficking has demonstrated that controlled
delivery brought a great increase in drug apprehensions worldwide, specifically of narcotics that only passtrough the Brazilian territory to foreign markets like Europe and North America, and, also, of narcotics thattransit through two or more states inside the country, coming primarily from the tri-border region to be soldin large costumer centres such as São Paulo, Rio de Janeiro, Brasília and Porto Alegre.
6. The Legal Instruments to Control, Investigate, Prosecute and Punish Money Laundering Activities Art. 7, 18 and 27 of the United Nations Convention and Federal Law 9,613 of 3 March 1998
Concerning the guidelines recommended by the UN Convention with regards to money laundering
prevention – especially Articles 7, 18 and 27 – the Brazilian legal framework established mainly byFederal Law 9,613, of 3 March 1988, provides an effective system of administrative and financial controls.
The aforementioned legislation brings to the Brazilian legal system a new criminal policy of preventing
and combating money laundering, including the criminalization of this practice (Art. 1 establishes a penaltyof three to ten years’ imprisonment) and with express prohibition for the indicted to be released on own
recognizance10 or pay any kind of bail bond (Art. 3) during the prosecution and trial.
The institution of seizure is mentioned in Article 4, and enables the apprehension and deprivation of
goods, merchandise or real property acquired as the proceeds of crime, even if these chattels have alreadybeen registered in the name of third parties with no connection with the crime under investigation.
A weak point of Federal Law 9,613 is the absence of statements about freezing - the prohibition oftransfer, conversion, disposition or movement of property during the investigation, prosecution, or trial. Thispossibility is mentioned by the United Nations Convention, Article 7, which states that the measure must be
determined by a court order and the crime investigated must be related to drug trafficking. Despite that, thecourts have been expanding the range of the measure, applying it to every property acquired with money
derived from crimes, based on the implied judicial powers. It is important to say that the judge, at the final
sentence, may determine the confiscation (the permanent deprivation of property) of the chattels seized
during the investigation and prosecution, in favour of the Federative Republic, according to Article 7. I of theaforementioned law.
Federal Law 9,613 brought another great advance in combating money laundering in Brazil, consisting ofshifting the burden of proof of the illegal origin of the chattels subject to seizure. It is no longer a duty of theprosecutor, but a burden of the indicted, who must demonstrate the licit origin of the properties in his or her
name, personally, in the presence of the judge (Art. 4, paragraph 2).
Pursuing the aim to set money laundering eradication as a priority policy of the State, Federal Law 9,613
10 This is a kind of pre-trail release based on the person's own promise that he or she will be present at trial, its outlines aredescribed by Articles 321 to 350 of the Criminal Procedure Code. There are two basic models; one with and one without thepayment of a bail bond74

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has created two departments to deal with the matter: (a) the Brazilian financial intelligence unit called
Council of Financial Activities (COAF) and (b) the Department for the Combat of Financial and Exchange
Illicit Acts (DEAFI) as a unit of the Central Bank of Brazil, designated to be in charge of the generalmonitoring of financial market activities. The first department receives information, and examines andidentifies suspect occurrences of illicit activities related to money laundering. It also co-ordinates andproposes mechanisms for the co-operation and exchange of information inside and outside the country that
could provide quick and efficient actions in the war against money laundering. The second department,
DEAFI, receives information and allegations by the COAF in relation to the financial system, in order toapply administrative sanctions to the financial institutions which do not comply with the legal statements
related to money laundering prevention.
These legal statements, created six years before the incorporation of the UN Convention against
Organized Crime into the Brazilian legal system, reveal the government’s objective of punishing andpreventing the occurrence of money laundering and financial crimes in Brazilian territory, and the practicaluse of the legal tools created by such laws has proven their efficiency.

V. CONCLUSIONAs demonstrated, the Brazilian legal framework for combating organized crime contains in its outlines
the most important and modern tools and institutions recommended by the UN Convention signed in 2002
at Palermo on the matter.
The legal instruments exist and the authorities must apply them to their full extent in order to achieve
better results. In fact, ten years after the introduction of the first legal statements concerning investigative
tools against criminal groups, the Brazilian legal authorities – police chiefs, prosecutors and judges – havefinally started to explore the potential of the available legal tools, as their use before could be qualified as
timid. This change of behaviour is due to the great increase in the activities of national and transnational
criminal organizations in Brazil, demanding stronger combat strategies; to the reduction of cost andimprovement of technology, which became more easily available; and also to the deepening of studies thatshow the law enforcement authorities the extent of their legal powers.
Based on the legal improvements detailed before, police and prosecutors have increased the use ofelectronic equipment for surveillance and communication interception. The use of relationship analysis,
software and methods of intelligence activity (especially undercover operations), in addition to the growing
use of technology and information analysis, have provided a larger degree of success in crime solution andextinction of criminal organizations in Brazil.
Besides the authorities’ efforts, the Brazilian government is committed to the adoption of every measure
to diminish the scourge of organized transnational crime – diplomatic efforts, economic co-operation, law
enforcement, exchange of financial and intelligence information and especially mutual co-operation with theUnited Nations, its Member States, the Organization of American States, and other international andregional organizations. These collateral organizations must also co-operate with every single country, by
demanding the adoption of minimal standards of legislation and commitment, and offering expertise.
Despite these improvements, the path to establishing control of criminal organizations’ activities is a longone due to the fact that in the same way that the State improves its investigation, prosecution and trial
mechanisms, the mafias change their ways of action, their hierarchical structure and their systems toconceal the proceeds of crime in order to continue to break the law.
The Brazilian criminal organizations have recently performed demonstrations of power unheard of up to
this year (2006). This kind of demonstration of high levels of organization and power might attract theinterest of transnational organizations, triggering the strengthening of the national groups. The recent
events that took place in São Paulo state, where many police members were killed by organized crime
members, brought the theme to discussion by the press. Up to then, the existence of organized criminalgroups was unknown to most citizens, who were not aware of such a threat. Now, especially in São Paulo,
there is growing popular concern on the matter, which hopefully will lead to improvement in the general
attitude towards the problem.

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The country’s most daring challenge at the moment is to make citizens and politicians in the National
Congress aware of the menace that criminal organizations represent, in order to obtain general co-operation
against it, not only by the institutional entities, but also from the public in general. With regards to theprosecution of crimes, there is a need to promote a closer co-operation among law enforcement
organizations, especially among the police and the public prosecutors and members of the Judiciary, in order
to apply the rule of law against criminals to its full extent, making jurisprudence more rigorous against
perpetrators.

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