The procedural autonomy of money laundering does not solve every problem for the prosecution. Under Brazilian law, it allows a money laundering case to proceed without a prior conviction for the predicate offense. It does not, however, allow the Public Prosecutor’s Office to use money laundering as a second route to sustain a charge based on the same evidence that a court has already declared unlawful.
The distinction matters. One thing is for the predicate offense to exist, to be supported by valid evidence, but no longer to be punishable because of limitation periods, death of the defendant, amnesty, or another obstacle external to the fact itself. A very different thing is for the State to lack lawful evidence to show that the predicate offense occurred at all. In the first scenario, the autonomy of money laundering serves its purpose. In the second, it cannot replace probable cause.
The autonomy of money laundering does not eliminate the need for a predicate offense
Item II of article 2 of Law No. 9,613/1998 provides that the prosecution and adjudication of money laundering offenses are independent from the prosecution and adjudication of the predicate criminal offenses. The rule is necessary. Without it, the limitation period for the predicate offense, the death of its perpetrator, or a similar obstacle could prevent prosecution for the concealment or disguise of criminal proceeds.
Brazilian case law has long recognized this autonomy. In HC No. 319,014/RN, Justice Maria Thereza de Assis Moura, Sixth Panel, the Superior Court of Justice held that the existence of a predicate offense is an element of money laundering, but not a procedural condition for prosecution; sufficient indications of the predicate offense are enough as a specific requirement for the indictment. In the same judgment, however, the Court granted habeas corpus ex officio to set aside the money laundering conviction after recognizing the absence of a predicate offense capable of serving as an element of the crime.
That qualification is not a detail. It is the limit of autonomy. Money laundering does not require a conviction for the predicate offense, but it does require a minimum and valid evidentiary basis regarding the criminal origin of the assets, rights, or values. Without that, there are no criminal proceeds to conceal or disguise. There is only suspicious financial movement – and suspicion alone is not a criminal offense under Brazilian Criminal Law.
Extinction of punishability and unlawful evidence are not the same thing
Paragraph 1 of article 2 of Law No. 9,613/1998 reinforces this limit by allowing money laundering charges even when the perpetrator of the predicate offense is unknown or exempt from punishment, or when punishability has been extinguished. But the same provision requires sufficient indications of the existence of the predicate criminal offense.
That is the key point. Extinction of punishability presupposes a typical and unlawful fact that the State can recognize; what disappears is the possibility of punishment. By contrast, a declaration that the evidence supporting the predicate offense is unlawful affects the State’s procedural ability to assert that the fact occurred in the first place. Prosecutors may remain convinced of their theory. The proceedings cannot.
For that reason, when a court dismisses the prosecution of the predicate offense because the evidence was unlawful, the issue is not to take advantage of a procedural defect in the earlier offense. The issue is more basic: if the criminal origin of the assets could only be shown through inadmissible evidence, the money laundering charge has lost its evidentiary foundation.
Procedural autonomy does not turn unlawful evidence into usable evidence
The autonomy of money laundering operates at the procedural level. It prevents the laundering case from being paralyzed while waiting for the outcome of the predicate-offense case. It does not alter the constitutional regime governing unlawful evidence, nor does it allow prosecutors to reuse the same contaminated material under a different legal label.
Paragraph 1 of article 157 of the Brazilian Code of Criminal Procedure makes evidence derived from unlawful evidence inadmissible, except when there is no causal link or when it can be obtained from an independent source. In AgRg no REsp No. 1,573,910/SP, Justice Nefi Cordeiro, Sixth Panel, the Superior Court of Justice applied that logic through the “fruit of the poisonous tree” doctrine, subject to the exceptions of independent source and inevitable discovery.
The consequence is direct: if the evidence supporting the predicate offense falls, the defense must examine whether the evidence of money laundering originated from the same source. In many cases, it did. The same report, wiretap, cooperation agreement, search warrant, or bank secrecy breach may be used to say, at the same time, that a prior crime occurred and that assets were concealed or disguised. If the original source is unlawful, money laundering is not saved merely because it is formally autonomous.
The Brazilian Financial Intelligence Report as a current example
The discussion has gained practical importance with Theme 1,404 before the Brazilian Supreme Federal Court. In RE No. 1,537,165/SP, Justice Alexandre de Moraes, the Court is addressing the limits on the use of Financial Intelligence Reports produced by COAF, Brazil’s financial intelligence unit, and the prohibition of fishing expeditions through generic requests for financial data.
The point is not to treat every COAF report as unlawful evidence. The point is to recognize that, when the report was obtained or shared outside the limits set by the Court, it may contaminate everything that derived from it.
Igor Arthur Rayzel’s article on COAF Reports as a Starting Point examines precisely this problem: the RIF cannot be used as the first measure to discover whether there is something to investigate. It must support an investigation that is already minimally structured, with an identified target and thematic connection.
In many money laundering investigations in Brazil, the COAF report is the origin of the case. It points to apparently incompatible transactions, justifies the opening of proceedings, supports requests to breach bank secrecy, guides searches, and helps build the narrative of the predicate offense. If that first piece of information is declared unlawful, the prosecution must show that the money laundering charge rests on an independent source. Without that, procedural autonomy becomes only an attempt to preserve the effects of evidence that can no longer be used.
Absence of the predicate offense and absence of a valid evidentiary basis
Recent case law from the Superior Court of Justice helps organize the boundary. In AgRg no RHC No. 161,701/PB, Justice Sebastião Reis Júnior, Sixth Panel, the Court held that the nonexistence of a predicate offense excludes the typicality of money laundering and makes the organized crime charge unsustainable due to the absence of underlying criminal offenses.
That precedent does not automatically resolve every unlawful-evidence case. The nonexistence of the predicate offense and the lack of valid evidence of the predicate offense are not identical categories. But the reasoning matters: money laundering cannot stand in a vacuum. It requires a predicate criminal offense as a normative prerequisite and lawful indications as a procedural prerequisite.
When the prosecution of the predicate offense is dismissed because the alleged conduct is atypical, the problem is the absence of the prior crime itself. When it is dismissed because the evidence is unlawful, the problem is the absence of admissible evidentiary support to assert that crime. In both scenarios, the defense must prevent the autonomy of money laundering from being used as a shortcut around the missing prerequisite.
How the defense should build the argument
The defense should not deny, in the abstract, the autonomy of money laundering. That is a weak path, because it conflicts with the statutory text and settled case law. The point is different: to show that autonomy does not cure the absence of lawful evidence regarding the predicate offense.
The first step is to separate the categories. The defense must show that dismissal of the predicate-offense prosecution did not result from limitation periods, death of the defendant, amnesty, or another cause external to the fact. It resulted from a declaration that the evidence supporting the charge was unlawful. In that scenario, prosecutors did not merely lose the ability to punish the predicate offense; they lost the admissible basis to assert it.
The second step is to reconstruct the evidentiary chain. It is necessary to identify where the elements supporting the money laundering allegation came from: financial intelligence report, breach of bank secrecy, wiretap, search, cooperation agreement, expert analysis. If these elements derive from the original unlawful evidence, paragraph 1 of article 157 of the Brazilian Code of Criminal Procedure becomes the core of the dispute. The prosecution survives only if it can show an independent source or the absence of a causal link.
The third step is to attack independent probable cause. Even if, in theory, the money laundering case could continue, the indictment must point to sufficient and lawful indications of the predicate offense. If what remains are inferences, atypical financial transactions, or the repetition of a contaminated narrative, probable cause is lacking. And an indictment without probable cause should be rejected or dismissed through habeas corpus.
The decisive point
The autonomy of money laundering was designed to prevent punishment for concealment of criminal proceeds from depending on a conviction for the predicate offense. It was not designed to allow prosecutors to preserve a charge built on unlawful evidence.
When there is valid evidence of the predicate offense, but punishment encounters an external obstacle, money laundering may proceed. When the predicate offense rests only on inadmissible evidence, money laundering has nothing to stand on. The difference may seem subtle, but it changes the entire case.
The defense must insist on this distinction. Procedural autonomy is the rule. A valid evidentiary basis is the prerequisite. Without the prerequisite, the rule does not operate.
