Law 9.034/95: Evidence and Investigative Procedures for Organized Crime
Article 1: Scope and Purpose
This Act defines and regulates evidence and investigative procedures for illegal activities (misdemeanors and crimes) committed by gangs, criminal organizations, or associations.
Gang or Gang Formation (Article 288 of the Penal Code)
Associating with more than three people to commit crimes is punishable by imprisonment.
Criminal Associations and Organizations
Special laws address criminal associations (e.g., drug laws) and organizations (e.g., the Palermo Convention).
Investigative Procedures
1. Controlled Action
Delaying police intervention to gather evidence and information.
2. Breaking Secrecy of Data
Accessing data, documents, and information with judicial authorization.
Inquisitorial vs. Accusatory System
Law 9.034/95’s provision for courts to collect evidence ex officio raises concerns about impartiality and due process.
Informative Elements vs. Proof
Evidence obtained during the investigation stage should not solely support convictions but can contribute to the judge’s decision.
Breaking Financial and Banking Secrecy
Allowed with judicial authorization or by Parliamentary Commissions of Inquiry.
Capture and Interception of Communications
Permitted with detailed judicial authorization.
Infiltration of Police Agents
Allowed with detailed judicial authorization for investigative purposes.
Witness Protection
Law 9.034/95 provides measures to protect witnesses, including relocation, identity changes, and financial support.
Criminal Identification
Allowed in specific cases, such as for individuals involved in organized crime or serious offenses.
Tipoff Awarded and Provisional Freedom
Reduced penalties for collaboration and prohibition of bail for those involved in criminal organizations.
Retiring to Prison for Appeal and Beginning of Sentence
These provisions have been modified by subsequent legislation.
Differential Disciplinary Scheme
Individuals suspected of involvement in criminal organizations may be subject to stricter disciplinary measures in prison.
Investigation Stage
The investigation stage now begins with the instruction hearing, where evidence is presented and the accused is interrogated.