Plea bargaining cooperation, provided for in the Organized Crime Act (Law No. 12,850/2013), has become one of the central instruments of negotiated criminal justice in Brazil. Used in complex investigations, it allows a suspect or defendant to assist in the clarification of facts in exchange for legal benefits, always with the technical assistance of a criminal defense attorney.
This article objectively explains what plea bargaining cooperation is, when it may be offered, and the limits of its benefits, based on current legislation and case law.
The Legal Framework of Plea Bargaining Cooperation
Plea bargaining cooperation is a procedural legal agreement entered into between the cooperating party (suspect or defendant) and the Public Prosecutor’s Office or the police authority. Its purpose is to provide useful information and evidence capable of assisting in investigations and criminal proceedings involving organized crime.
The mechanism exists to enable a more effective fight against organized crime, allowing the State to dismantle internal structures through privileged information provided by those who participated in the criminal acts.
Throughout the negotiation process and execution of the agreement, the cooperating individual must be accompanied by legal counsel.
Requirements for Proposing Cooperation
1. Full disclosure of the unlawful conduct
The cooperator must fully describe all offenses in which they participated that relate directly to the subject of the investigation (Art. 3º-C, §3, Law 12,850/2013).
2. Submission of corroborating evidence
The proposal must include evidence capable of confirming the facts described, such as documents, records, or witnesses able to corroborate the statements.
3. Testimony in court
Entering into the agreement implies waiver of the right to remain silent regarding the facts addressed. The cooperator must contribute to evidentiary proceedings. Therefore, even if the Public Prosecutor’s Office chooses not to file charges, the cooperator must appear and testify in court if requested.
What Benefits May Be Granted?
Benefits depend on the effectiveness of the cooperation, considering the nature and severity of the crime, social repercussions, and usefulness of the information.
Benefits expressly provided by law:
- Judicial pardon;
- Sentence reduction of up to two-thirds;
- Substitution of imprisonment with alternative sanctions.
Atypical benefits
According to recent case law from the STJ, the agreement may include benefits not expressly provided for in the statute, provided they comply with constitutional and procedural limits and offer real utility to the criminal prosecution.
Situations That Authorize Granting of Benefits
The law conditions benefits on effective cooperation that results in:
- Identification of co-perpetrators and participants;
- Revelation of the hierarchical structure of the criminal organization;
- Prevention of crimes related to the group’s activities;
- Recovery of assets derived from criminal activity;
- Location of victims with their physical integrity preserved.
Cooperation After Conviction
Even after conviction, the defendant may cooperate. In such cases, possible benefits include:
- Reduction of the sentence by up to half, or
- Advancement to a more lenient prison regime, even if objective requirements are not met.
Is the Judge Bound by the Agreement?
Despite being in force for more than a decade, case law is not yet entirely uniform regarding whether the judge is bound by the terms of the agreement.
Position of the Supreme Federal Court (STF)
In HC 127,483, the STF recognized that the cooperator has a subjective right to judicial enforcement of the agreement, provided the judge verifies the effectiveness of the information provided.
Position of the Superior Court of Justice (STJ)
More recently, the STJ has held that judicial review must be limited to assessing the regularity and legality of the agreement. The judge is bound by the terms of the approved agreement and may not revisit its merits or convenience.
Conclusion
Plea bargaining cooperation is a valuable tool, but it requires careful analysis of legal requirements, the effectiveness of the information provided, and the procedural consequences involved.
For this reason, the assistance of a specialized attorney is essential to guide the cooperator during negotiations, protect their rights, and ensure that the agreement is executed within statutory and jurisprudential limits.
