Criminal lawyers view with reservation the bill by Senator Sérgio Moro (União-PR) approved on Wednesday 29th by the Constitution and Justice Commission (CCJ) of the Senate. The proposal of the former judge of the controversial Operation Lava Jato encourages the reporting of illegal acts in the financial market and creates a reward for those who report.
“The figure of the secret informer is absurd”, says criminal lawyer Filippo Antonioli. “Even more so if claims are paid. This will create a divisive environment in companies. We could have a situation where an employee, out of sheer revenge, files a false claim only to create problems for someone they don’t like.”
PL 2581, which provides for the crime of deception in the capital market by omitting data or disclosing information known to be false, received a favorable opinion from the rapporteur, Senator Esperidião Amin (PP-SC). The text will have to be subjected to a new vote in a complementary session in the Commission, before moving to the Chamber.
In his X Moro underlined the importance of the project. “Creates a reporting program to detect and prevent fraud in the stock market and stock exchange. The project strengthens the CVM and generates a favorable environment for productive investments through the stock exchange.”
Moro maintains that “accounting frauds involving billions of reals, as in the case of Lojas Americanas, cannot be repeated.”
According to him, the PL was “inspired by the North American Dodd-Frank law and will soon go to the House.”
Moro’s project regulates ‘protection, incentive and reward tools for whistleblowers who report crimes or illicit acts in the securities market or in companies listed on the stock exchange’.
The text adds to law 6.385 of 1976 the provision of new crimes against the capital market. Under the proposal, committing accounting fraud by manipulating information about a company’s financial operations could result in up to six years in prison.
Destruction or concealment of accounting documents with the intent to impede the audit can result in up to eight years of imprisonment.
The substitute approved by the CCJ constitutes the crime of deceiving investors in the capital market, characterized by the dissemination of false information or the omission of relevant information with the aim of manipulating or misleading investors, with penalties of up to six years.
Penalties for these crimes can be twice as high as expected, at the discretion of the judge, depending on the extent of the losses caused and the extent of the shock to the financial market.
The text provides for protection, incentive and reward measures for those who voluntarily report crimes or illicit acts in the securities market and in publicly held companies.
The reward varies between 10% and 30% of the amount of the sanctions applied by the CVM, or the value of the proceeds of crime recovered, or the value of the accounting fraud.
Criminal lawyer Sérgio Rosenthal believes that Moro’s proposal has “positive aspects and negative aspects”.
“Providing new obligations for companies listed on the stock exchange, in order to guarantee the integrity of their balance sheets and balance sheets, is indeed important to avoid unacceptable situations such as that which occurred in the case of Lojas Americanas,” he observes.
“Yet the creation of the figure of the secret informer seems abominable to me,” criticizes Rosenthal. “Especially when the project provides that the whistleblower will be paid and cannot be fired or held responsible in civil, administrative, labor or criminal matters in relation to the report, even if it is later revealed to be unfounded.”
Lawyer Fernando Hideo Lacerda says that the creation of the figure of the whistleblower “is ethically questionable, but it can be an effective tool to fight crimes in the financial market.”
“On the one hand, this investigative mechanism reproduces a controversial ethical standard and could favor a market of traitors well paid by the State, who would entrust private informers with the task of identifying and proving the commission of crimes,” warns Hideo Lacerda .
For him, “it must be taken into account that corporate fraud usually occurs in structures intentionally protected from state control and can cause large financial losses to the community, as occurred in large-scale recent cases, which reinforces the need for restore confidence in the Brazilian financial market.”
“In this scenario, creating mechanisms to encourage and protect whistleblowers is justifiable,” Hideo reflects. “Therefore, in addition to the financial compensation of the whistleblower, the bill adequately provides for the preservation of his identity and guarantees civil, administrative, labor and criminal immunity in relation to the reported facts.”
The criminal lawyer assesses that Moro’s project «is correct in establishing that the information presented must be corroborated by other evidence, so that the complainant’s complaint cannot be used as the sole basis for convicting or punishing anyone».
“It should be noted that the PL correctly provides for the liability of the whistleblower in bad faith, if it is demonstrated that he intentionally presented information on facts or evidence that he knew to be false.”
Adib Abdouni, constitutional and criminal lawyer, states that “in times of increasing adoption of international and globalized compliance mechanisms, with the aim of avoiding, detecting and communicating deviations or non-compliance, PL positively draws attention to the creation of programs reward for whistleblowers who report crimes or illicit acts in companies listed on the stock exchange”.
Abdouni mentions the institution of plea bargaining. “It is important to ensure voluntariness and, above all, that the provision of such information, as a condition for the payment of monetary compensation, was originated or obtained by lawful means and, ultimately, constitutes unprecedented evidence which results in a effective investigation of the crimes reported.”
Source: Terra
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