Lavagem de capitais na modalidade "ocultar"crime permanente, instantâneo ou instantâneo de efeitos permanentes?

Resumo

Is transferring funds resulting from passive corruption to an offshore company located in a foreign country (registered in the name of a third party) a crime of permanent, instantaneous or instantaneous completion, with lasting effects? If the answer is permanent completion, the corrupt agent who has requested a certain amount of money and subsequently transferred it to a secret account abroad may be arrested in flagrante delicto at any time, while the amount is hidden or immediately after the discovery of the concealment of the masked amount; the time limit for the criminal prosecution bodies to investigate and charge him with the crime of money laundering will remain “suspended” until the transfer of the funds is determined; any precautionary measures of a patrimonial nature decreed during the course of the investigation would no longer be set aside due to the expiration of the prescriptive period of the punitive claim. On the other hand, if the answer is instantaneous completion, with lasting or permanent effects, the situation becomes completely opposite. The prescriptive term begins to run from the initial act of concealment of the amounts (transfer), and the maintenance of the amounts in the account is merely a consequence of the initial conduct, a circumstance that is especially relevant for agents under 21 years of age on the date of the events or over 70 years of age when the sentence is handed down. The flagrant offense would only become possible at the time of the transfer or shortly thereafter, which is more difficult to occur in practical experience. Despite the consequences resulting from the interpretative approach that defends the permanent nature of the verb “to hide”, the Supreme Federal Court, in the judgment of AP 863/SP, consolidated, by majority, the permanent nature of such conduct, by applying the following criteria: permanent violation of the protected legal asset, due to the criminal action dominated by the agent, who can revoke it at any time; that is, consummation that persists due to the will of the perpetrator of the crime; analogy to crimes provided for in the General Part of the Penal Code that have the typical element of concealment (e.g.: receiving stolen goods, concealment of a corpse); projection of the completion of the crime while the amounts were deposited, referring to “a temporal extension”, until the body responsible for criminal prosecution becomes aware of the typical conduct. For such reasons, which are not merely theoretical, it is essential to study the doctrinal criteria that classify crimes based on their completion moment, as well as the way in which they were applied by the Supreme Federal Court (cumulatively or not), in order to obtain a more critical analysis of the judgment handed down, taking into account the practical consequences affecting the sphere of freedom of the investigated or accused, which vary depending on the interpretative approach adopted.

Ficha do documento

Tipo

Dissertação

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/37611

Temas

EconomiaGovernança

Palavras-chave

Crime instantâneoCrime permanenteLavagem de capitaisOcultaçãoMomento consumativoInstantaneous crimePermanent crimeMoney launderingConcealmentConsummatory momentDireitoCorrupçãoLavagem de dinheiro - LegislaçãoDireito penal econômico