Inépcia da denúncia
Criminal prosecution in tax matters, especially when it involves corporate entities, often exposes a constant tension between the repression of fiscal offenses and the observance of fundamental guarantees of criminal procedure. Faced with complex corporate structures, it is not uncommon for the prosecution to rely on broad accusations, grounded more in the position occupied by the accused than in a concrete description of their conduct.
This approach, although frequent, encounters clear limits in the legal system. Brazilian criminal law does not allow liability based solely on the exercise of a position or function. Even at a minimum level, there must be a demonstrable link between the individual and the alleged criminal act. When this requirement is disregarded, the indictment fails to fulfill its constitutional role and undermines the legitimacy of the criminal process itself.
It was precisely from this perspective that the Superior Court of Justice (STJ), in a recent decision, recognized the defectiveness of an indictment for a tax crime and ordered the dismissal of the criminal proceedings.
The logic of criminal attribution in corporate tax crimes
It is well established in case law that, in crimes committed within corporate structures, the prosecution is not required to provide an exhaustive and highly detailed description of each defendant’s individual actions. This is a pragmatic concession, acknowledging the difficulties inherent in investigating decision-making processes within complex organizations.
Such flexibility, however, does not authorize generic indictments. What may be dispensed with is excessive detail; what remains indispensable is the indication of a minimum nexus between the accused and the criminal act. Criminal attribution must explain why a particular individual is being prosecuted, rather than merely pointing to the position they held.
When the accusation is limited to identifying the defendant as a director or officer, without any individualized conduct, criminal law shifts from conduct-based liability to status-based liability — a form of objective criminal responsibility that is incompatible with constitutional principles.
The case analyzed by the STJ: corporate title is not conduct
In AgRg nos EDcl no Habeas Corpus No. 1.026.172/SP, the STJ examined an indictment based on Article 337-A of the Brazilian Criminal Code, which defines the crime of evasion of social security contributions, consisting in the suppression or reduction of mandatory contributions through mechanisms such as the omission of information or the exclusion of values from required filings.
According to the prosecution, the company allegedly made off-the-books payments to employees and service providers over several years, failing to report those amounts in the mandatory declarations and thereby reducing the calculation base of social security contributions. The defendant was included in the criminal case solely because he had served, for a short period, as the company’s chief executive officer.
The indictment, however, failed to attribute to him any concrete act of decision-making, authorization, control, or participation. There was no allegation that he ordered the payments, authorized the omissions, or exercised oversight over payroll or financial operations. His inclusion was based exclusively on his formal position within the corporate structure.
This lack of factual description became even more evident when the investigative record was examined. As highlighted in the prevailing opinion, the defendant was not listed as a co-responsible party by the tax authorities, was not mentioned in witness statements, and was never questioned during the investigation. Nevertheless, he was indicted nearly fifteen years after the investigation began, solely because of his corporate title.
Upon reconsideration, Justice Rogério Schietti Cruz emphasized that although some degree of generality may be tolerated in corporate crime indictments, criminal proceedings cannot be initiated without at least minimal individualization of conduct, under penalty of admitting objective criminal liability. On that basis, the indictment was deemed defective and the proceedings were dismissed.
Defective indictment and dismissal of the criminal action
The decision reinforces a fundamental point: the indictment defines the scope of the accusation and conditions the entire development of the criminal process. When it fails to describe, even minimally, the conduct attributed to the defendant, it prevents the full exercise of the right to defense and contaminates the proceedings from their outset.
In such cases, the defect cannot be cured through evidentiary proceedings. A defendant cannot be compelled to defend against vague accusations based on presumptions or hierarchical status. Where the indictment fails to meet statutory requirements, dismissal of the criminal action is the appropriate remedy.
The STJ made it clear that this does not require conclusive proof of authorship at the charging stage, but rather seeks to prevent the misuse of criminal proceedings as a belated investigative tool, improperly shifting the burden to the defense.
Conclusion
The ruling delivers a clear message in tax crime prosecutions: title is not conduct, function is not a criminal act, and hierarchical position does not replace factual attribution.
Even minimal individualization of conduct is not a mere formal requirement, but a constitutional safeguard. When it is ignored, the criminal process loses its legitimacy and collapses before it can properly advance.
For defense counsel, the decision highlights the importance of carefully scrutinizing the indictment from the outset. Where the accusation rests solely on the defendant’s corporate status, habeas corpus remains an effective tool to prevent proceedings that violate fundamental guarantees.
