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Law # 12683, 09 July 2012

Original Language Title: Lei nº 12.683, de 09 de julho de 2012

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LEI NO. 12,683, OF July 9, 2012

Changes the Law No. 9,613 of March 3, 1998 to make the prosecution of the criminal prosecution of money laundering offences more efficient.

THE PRESIDENT OF THE REPUBLIC

I get to know that the National Congress decrees and I sanction the following Law:

Art. 1º This Law amends the Act No. 9,613 of March 3, 1998 to make the prosecution of the criminal prosecution of money laundering offences more efficient.

Art. 2º The Law no 9,613 of March 3, 1998, passes the invigoration with the following amendments:

" Art. 1º Hide or dissimulate the nature, origin, location, disposition, movement, or property of goods, rights or values arising, directly or indirectly, of criminal infraction.

I-(repealed);

II-(revoked);

III-(revoked);

IV-(repealed);

V-(repealed);

VI-(repealed);

VII-(repealed);

VIII-(repealed).

Pena: seclusion, from 3 (three) to 10 (ten) years, and fine.

§ 1º Ingoes in the same penalty who, to conceal or dissemble the use of goods, rights, or values coming from criminal infraction:

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§ 2º Ingoes, still, in the same penalty who:

I-use, in the economic or financial activity, goods, rights or values arising from criminal infraction;

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§ 4º The penalty will be increased by one to two thirds, if the crimes defined in this Act are committed in a way repeated or through criminal organization.

§ 5º The penalty may be reduced by one to two thirds and be fulfilled in open or semi-open arrangements, by providing the judge to cease applying it or replace it, to any time, by restrictive penalty of rights, if the author, co-author or partype spontaneously collaborates with the authorities, providing clarifications that lead to the ascertainment of the penal infractions, the identification of the authors, coauthors and partycipes, or the location of the goods, rights or object values of the crime. " (NR)

" Art. 2º ...................................................................................

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II- independent of the process and judgment of the criminal offences antecedent, even if practiced in another country, by having the judge competent for the crimes provided for in this Act the decision on the unity of process and trial;

III- ..........................................................................................

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b) when the criminal infraction antecedent is within the jurisdiction of the Federal Justice.

§ 1º The complaint will be instructed with sufficient evidence of the existence of the criminal offence antecedent, being punishable by the facts provided for in this Act, still that unknown or otherwise dismisses the author, or extinguishes the punishability of the criminal infraction antecedent.

§ 2º In the case for crime provided for in this Act, the provisions of the art do not apply. 366 of the Decree-Law No. 3,689, of October 3, 1941 (Criminal Procedure Code), owing the accused not to attend nor constitute counsel be cited by edict, proceeding the feat until the trial, with the appointment of dative defender. " (NR)

" Art. 4º The judge, of trade, the application by the prosecutor's office or upon representation of the police delegate, heard the Public Prosecutor's Office in 24 (twenty four) hours, there are sufficient evidence of criminal infraction, could enact measures assecuratory of goods, rights or values of the investigated or accused, or existing in the name of interposed persons, who are instrument, product or profit from the crimes provided for in this Law or the criminal offences antecedent.

§ 1º Proceed to the advance disposal for preservation of the value of the goods whenever they are subject to any degree of deterioration or depreciation, or when there is difficulty for their maintenance.

§ 2º The judge shall determine the full or partial release of the goods, rights and values when proven to the liceness of their origin, by maintaining the constriction of the necessary and sufficient goods, rights and values to the reparation of the damage and payment of benefits pecuniary, fines and costs arising from the criminal infraction.

§ 3º No applications for release will be known without the personal attendance of the accused or of the person referred to in the caput of this article, and the judge may determine the practice of acts necessary for the conservation of goods, rights or values, without prejudice to the provisions of § 1º.

§ 4º Powers will be enacted as assecuratory measures on goods, rights or values for remediation of the damage arising from the criminal infraction antecedent or that provided for in this Act or for payment of pecuniary benefit, fine and expense. " (NR)

" Art. 5º Where the circumstances advise him, the judge, heard the Public Prosecutor's Office, shall appoint a qualified physical or legal person for the administration of the goods, rights or values subject to assecuratory measures, upon expiry of a commitment. " (NR)

" Art. 6º The person responsible for the administration of the goods:

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Single paragraph. The acts concerning the administration of the goods subject to the assecuratory measures will be brought to the attention of the Public Prosecutor's Office, which will require what to understand fully fit. " (NR)

" Art. 7th ...................................................................................

I-the loss, in favor of the Union-and of the States, in the cases of jurisdiction of State Justice-, of all the goods, rights and values relating, directly or indirectly, to the practice of the crimes provided for in this Law, including those used to provide bail, resave the right of the aggrieved or third party of good-faith;

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§ 1º The Union and the States, within the framework of their competencies, will regulate the form of the targeting of the goods, rights and values the loss of which has been declared, ensured, as to the processes of jurisdiction of the Federal Justice, its use by the federal bodies entrusted with the prevention, combat, criminal action and the trial of the crimes envisaged in this Act, and, as to the processes of jurisdiction of State Justice, the preference of local bodies with identical function.

§ 2º The instruments of economic value without economic value whose loss in favour of the Union or the State is enacted will be unutilized or donated to the criminal museum or the public entity if there is an interest in its conservation. " (NR)

" Art. 8º The judge shall determine, in the hypothesis of the existence of an international treaty or convention and by request of competent foreign authority, assecuratory measures on goods, rights or values arising from crimes described in the art. 1º practiced abroad.

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§ 2º In the lack of treaty or convention, the goods, rights or private values subject to assecuratory measures by request of competent foreign authority or the proceeds from its disposal will be broken up between the requesting State and Brazil, in the proportion of half, resurrected the right of the aggrieved or third of good faith. " (NR)

"CHAPTER V

OF PERSONS SUBJECT TO THE MECHANISM OF CONTROL"

" Art. 9º Subject to the obligations referred to in the arts. 10 and 11 the physical and legal persons who have, in permanent or eventual character, as principal or accessory activity, cumulatively or not:

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Single paragraph. .....................................................................

I-the stock exchanges, commodity exchanges or futures and the trading systems of the organized over-the-counter market;

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X-the physical or legal persons who exercise real estate promotion activities or purchase and sale of real estate;

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XII-the physical or legal persons who trade luxury or high-value goods, intermeate their commercialization or exert activities involving large volume of resources in kind;

XIII-the commercial joints and public records;

XIV-the physical or legal persons who preshas, even if eventually, advisory services, consulting, contacting, auditing, counseling or assistance, of any nature, in operations:

a) of purchase and sale of real estate, commercial establishments or industrial or societal shareholdings of any nature;

b) of fund management, securities or other assets;

c) of opening or management of bank accounts, of savings, investment or of securities;

d) of the creation, exploitation or management of companies of any nature, foundations, trust funds or analogous structures;

and) financial, societariate or real estate; e

f) of divestment or acquisition of rights on contracts related to professional sports or artistic activities;

XV-physical or legal persons acting in the promotion, intermediation, marketing, agencing or negotiation of transfer rights of athletes, artists or fairs, exhibitions or similar events;

XVI-the transport and guard companies of values;

XVII-as physical or legal persons who market high-value goods of rural or animal origin or intermeate their marketing; and

XVIII-the overseas dependencies of the entities mentioned in this article, by means of their matrix in Brazil, relatively to residents in the Country. " (NR)

" Art. 10. .................................................................................

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III-should adopt internal policies, procedures and controls, compatible with their size and volume of operations, which enable them to meet the willing in this article and art. 11, in the disciplined form by the competent bodies;

IV-should enroll and maintain their updated enrollment in the regulatory or supervisory body and, in the absence of this, in the Financial Activities Control Board (Coaf), in the form and conditions by them established;

V-should cater to the requisitions formulated by the Coaf in the periodicity, form and conditions by it established, and shall be to preserve, in the terms of the law, the secrecy of the information presaged.

............................................................................................. " (NR)

" Art. 11. .................................................................................

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II-should report to the Coaf, refrain from giving science of such an act to any person, including that to which the information refers, within 24 (twenty-four) hours, the proposal or realization:

a) of all transactions referred to in the inciso II of the art. 10, accompanied by the identification of which it treats the inciso I of the aforementioned article; and

b) of the operations referred to in the inciso I;

III-should communicate to the regulatory body or scrutinizer of its activity or, failing that, the Coaf, in the periodicity, form and conditions by them established, the non-occurrence of tenders, transactions or operations liable to be communicated in the terms of the inciso II.

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§ 3º The Coaf will make the incoming communications available on the basis of the inciso II of the caput to the respective bodies responsible for the regulation or surveillance of the persons referred to in art. 9º. " (NR)

" Art. 12. ..................................................................................

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II-fine variable non-superior variable pecuniary:

a) at twice the value of the transaction;

b) at twice the actual profit obtained or that presumably would be obtained by the realization of the operation; or

c) to the value of R$ 20,000,000.00 (twenty million reais);

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IV-cassation or suspension of authorization for the exercise of activity, operation or operation.

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§ 2º The fine will be applied whenever the people referred to in art. 9º, by fault or dolo:

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II-do not comply with the willing in the incisos I to IV of the art. 10;

III-cease to meet, within the established period, the requisition formulated pursuant to the inciso V of the art. 10;

............................................................................................. " (NR)

" Art. 16. The Coaf will be composed of public servants of reputed and recognized reputation, designated in act of the Minister of State for Finance, among the members of the effective personnel framework of the Central Bank of Brazil, of the Commission of Values Securities, from the Superintendence of Private Insurance, from the Attorney General of the National Farm, the Registry of the Brazilian Federal Revenue Agency, the Brazilian Intelligence Agency, the Ministry of Foreign Affairs, the Ministry of Justice, the Federal Police Department, the Ministry of Social Welfare and the Controller-General of the Union, meeting the indication of the respective State Ministers.

............................................................................................. " (NR)

Art. 3º Law No. 9,613, 1998, passes the increased invigoration of the arts. 4º-A, 4º-B and 11-A and of the arts. 17-A, 17-B, 17-C, 17-D and 17-E, which make up the Chapter X-General Provisions:

" Art. 4º-A. The early disposal for preservation of value of goods under constriction shall be enacted by the judge, of trade, the application of the Public Prosecutor's Office or by request of the interested party, upon autonomous petition, which will be autured in trimming and whose autos will have separate tramway in relation to the main proceedings.

§ 1º The application for divestments should contain the relationship of all the remaining goods, with the description and specification of each of them, and information about who holds them and place where they are located.

§ 2 ° The judge will determine the assessment of the goods, in the autos trimmed, and subpoena the Public Prosecutor's Office.

§ 3º Feat the assessment and address possible disagreements on the respective laude, the judge, by sentence, will approve the value assigned to the goods and determine whether to be disposed at auction or preview, preferably electronic, by value not less than 75% (seventy and five percent) of the assessment.

§ 4º Realized the auction, the amount ascertained will be deposited into paid judicial account, by adopting the following discipline:

I-in the proceedings of jurisdiction of the Federal Justice and District Justice Federal:

a) deposits will be effected in the Federal Economic Box or in public financial institution, upon appropriate document for that purpose;

b) deposits will be passed down by the Cash Federal Economic or by another public financial institution for the National Treasury Single Account, regardless of any formality, within 24 (twenty four) hours; and

c) the values returned by the Cash Economic Federal or by public financial institution shall be debited to the Single Account of the National Treasury, in subaccount of restitution;

II-in the processes of jurisdiction of the Justice of the States:

a) the deposits will be effected in financial institution designated in law, preferably public, of each State or, in their absence, at public financial institution of the Union;

b) deposits will be passed to the account one of each State, in the form of the respective legislation.

§ 5º Mediant order of the judicial authority, the value of the deposit, after the transit on trial of the sentence handed down in the penal action, shall be:

I-in case of sentencing judgment, in the proceedings of jurisdiction of the Federal Justice and Justice of the Federal District, definitively incorporated into the Union's patrimony, and, in the processes of jurisdiction of State Justice, incorporated into the patrimony of the Respective state;

II-in case of an extinctive absolute sentence of punishability, placed at the disposal of the respondent by the financial institution, plus the remuneration of the judicial account.

§ 6º A depositary financial institution will keep track of the values deposited or returned.

§ 7º Will be deducted from the amount ascertained in the auction all the tributes and fines incidents on the well disposed, without prejudice to initiatives that, within the framework of the competence of each individual of the Federation, come to unburden goods under judicial constriction of those burden.

§ 8º Made of the deposit referred to in § 4º of this article, the autos of the divestment will be attached to those in the main proceedings.

§ 9º Term only devolutive effect of the appeals brought against the decisions rendered in the course of the procedure laid down in this article.

§ 10. Overcoming the transit on trial of sentencing criminal sentencing, the judge will enact, in favor, as the case, of the Union or the State:

I-the loss of the values deposited in the paid account and bail;

II-the loss of the undisposed goods in advance and of those to which it was not given prior destination; and

III-the loss of the unclaimed goods within 90 (ninety) days after the transit on trial of the sentencing sentence, ressaved the right to injured or third in good faith.

§ 11. The goods to which the incisors II and III of § 10 of this article are concerned shall be awarded or taken up for auction, by depositing the balance in the respective account of the respective ente.

§ 12. The judge shall determine to the competent public record that issue document of habilitation to the circulation and use of the goods placed under the use and custody of the entities referred to in the caput of this article.

§ 13. The resources arising from the early disposal of goods, rights and values arising from the crime of illicit drug trafficking and which have been the subject of dissimulation and concealment under this Act remain subject to the discipline defined in law specific. "

" Art. 4º-B. The arrest order of persons or the assecuratory measures of goods, rights or values may be suspended by the judge, heard the Public Prosecutor's Office, when his immediate execution can compromise the investigations. "

" Art. 11-A. International transfers and withdrawals in kind are to be communicated in advance to the financial institution, in the terms, limits, deadlines and conditions set by the Central Bank of Brazil. "

" CHAPTER X

GENERAL PROVISIONS "

" Art. 17-A. They apply, in a subsidiary, to the provisions of the Decree-Law No. 3,689 of October 3, 1941 (Code of Criminal Procedure), in what are not incompatible with this Act. "

" Art. 17-B. The police authority and the Public Prosecutor's Office will have access, exclusively, to the cadastral data of the investigated which informs personal qualification, affiliation and address, regardless of judicial authorization, held by the Electoral Justice, by the telephone companies, by the financial institutions, the internet providers and credit card-administrators. "

" Art. 17-C. The forwarding of financial and tax institutions in response to the court orders of breach or transfer of secrecy shall be, where determined, on a computer basis, and presented in archives that enable migration of information for the autos of the process without restyling. "

" Art. 17-D. In the event of an indictment of a public servant, this shall be removed, without prejudice to remuneration and too much rights provided for in law, until the competent judge authorizes, in reasoned decision, his return. "

" Art. 17-E. The Registry of the Brazilian Federal Revenue Office shall retain the tax data of the taxpayers by the minimum term of 5 (five) years, counted from the beginning of the financial year following that of the respective income statement or that of the payment of the tax. "

Art. 4º Revoga-if the art. 3º of Law No. 9,613 of March 3, 1998.

Art. 5º This Law comes into effect on the date of its publication.

Brasilia, July 9, 2012; 191º of Independence and 124º of the Republic.

DILMA ROUSSEFF

Marcia Pelegrini