The New Money Laundering Law in Brazil: Understanding Criminal Compliance Programs

Abstract

This chapter proposes an ambitious structure and will briefly introduce my observations on both sides of the New Money Laundering Law in Brazil, with theoretical references as well as an analysis of its practical consequences. Firstly, inspired by Klaus Tiedemann’s point of view, some comments about the “culture of corporate criminal liability” (Kultur der Unternehmensstrafbarkeit) (Tiedemann, Zur Kultur der Unternehmensstrafbarkeit. In: Quelos N (eds) Droit penal et diversites culturelles – Festschrift fur Jose Hurtado Pozo, Schulthess, Basel, pp 495ff., 2012a) will set the stage. It will be followed by an analysis of the international demand for an efficient alignment—in the field of organizational culture—alignment here being understood as international pressure for cooperation in criminal matters [A good example could be the case of Chile and the autonomous corporate criminal liability (Ley 20.393/2009), published in the same period that Chile achieved membership of the Organisation for Economic Cooperation and Development (OECD).]. Then, conclusions will be drawn by presenting the relationship between this organizational culture and the so-called “culture of corporate compliance”, and how it influenced the Brazilian model of preventing economic crimes. These important topics outline an analysis of the Brazilian anti-money laundering system—in a descriptive way—from the legislative evolution over the New Money Laundering Law in Brazil to the recent jurisprudence of the Brazilian Supreme Court in the so-called Mensalao’s Case, AP 470, which concerns a scandal involving members of the parliament during Lula da Silva’s Government. Last but not least, the most important problems will be highlighted, including the moral dilemmas that belong to the “incestuous” relationship between corruption and money laundering (Kyriakos-Saad et al., Revue Internationale de Droit Penal (AIDP) 83:161ff., 2012). Instead of a conclusion in a proper sense, you may then find some sceptical concerns about the future of corporate criminal compliance in Brazil.