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23Out2013Oct23,2013
Ambiental
Folha de S.Paulo

​Environmental criminal lawsuits – new decision by Brazil’s Federal Supreme Court

In this edition: 

On August 6, 2013, Brazil's Federal Supreme Court ruled by majority vote that a corporate entity may be prosecuted for crimes, regardless of whether a related criminal proceeding is  also pending against an individual.

In Extraordinary Appeal No. 548,181/PR, Brazil's Federal Supreme Court ("STF"), through a decision of Minister Rosa Weber, issued an important ruling in a criminal lawsuit brought against Brazil's leading oil producer, Petrobrás.  Pursuant to charges filed by the Federal Public Prosecutors Office in the State of Paraná, the company was accused of being criminally liable for the leaking of 4 million gallons of crude oil due to the breach of a pipeline in a refinery located in the municipality of Araucaria on July 16, 2000. Such leak polluted both the Barigui and Iguaçu Rivers, as well as adjacent areas. 

Initially, the parties named in the lawsuit were the President and the Superintendent of Petrobrás, as well as the legal entity Petrobrás S.A.  The charges against the President were dismissed in 2005 by the STF's Second Panel. In the Superior Court of Justice (Superior Tribunal de Justiça), the Sixth Panel likewise dismissed the charges against the company's Superintendent, and suspended charges against Petrobrás S.A. on the grounds that criminal proceedings may not be brought exclusively against a legal entity. 

The decision reflected the consolidated position of the court regarding the "fault" or "willful misconduct" element of a criminal offense and legal entities, i.e., it is only through physical persons that a legal entity can effectively commit a crime. 

However, the Federal Public Prosecutors' Office brought Extraordinary Appeal No. 548,181 in the STF to challenge the Superior Court of Justice's decision, which was assigned to Minister Rose Weber and decided on August 6, 2013. It was held that the decision suspending the criminal proceeding against Petrobrás directly violated the Federal Constitution, whose Article 225, paragraph 3, expressly foresees administrative and penal sanctions against legal entities and/or individuals whose conduct causes environmental damage, without establishing a need for a link between them. 

Moreover, she emphasized that "the difficulty to identify the responsible individuals makes it impossible to impose punishment for environmental crimes and that there is no need to name the physical person that co-authored the crime. The STF therefore reversed the Superior Court of Justice, which had previously ruled that the person that ordered or oversaw the actions that resulted in the pollution must be identified in order to punish the legal entity. 

The decision to impose criminal liability upon legal entities that pollute the environment without requiring a culpable physical person eliminates the danger of legal entity polluters going unpunished where it is not possible to identify the natural person who authored the crime. It also prevents abuses by prosecutors who, in their zeal to punish corporate polluters, have in the past named random individuals who did not effectively participate in the crime merely in order to establish the link previously required by courts. 

It is clear that the STF has not ruled out the possibility of requiring a link between legal entities and specific individuals, and has merely stated that such a connection is not mandatory. Thus, with this decision, criminal laws are being applied more efficaciously to corporate environmental abuses, while eliminating the wrongful prosecution of individuals who have no real involvement with crimes. 

Concurring with Minister Weber's decision were Ministers Luís Roberto Barroso and Dias Toffoli. Dissenting opinions were issued by Ministers Marcos Aurélio and Luiz Fux.

For additional information, please contact:

Eduardo Damião Gonçalves 
T +55 11 3147 7608 

Lina Pimentel Garcia
T +55 11 3147 2824​

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