The Superior Court of Justice (STJ) decided that the case on crime involving money laundering of drug trafficking with cryptomorps by people linked to the First Command of the Capital (PCC) should be analyzed by the Justice of the State of São Paulo and not by the Federal Justice.
The case involves the suspicion of money laundering by the sister of one of the traffickers linked to the PCC. She would have opened „companies in order to capture people to invest in cryptomites (bitcoins), in order to conceal the origin of illicit resources from drug trafficking.
Adriana Roberta, sister of Álvaro Daniel Roberto (a member of a drug gang linked to the criminal faction) became suspected of using cryptomoins to hide the origin of dirty money. The police investigation was opened by the 2nd Civil Police Station in Campinas/SP.
The problem is that the 4th Criminal Court of Campinas (SP) when confronted with the case understood that this was a matter for the National Financial System and it would be up to the Federal Justice to judge the case. The basis was that the facts in the investigation „relate to the alleged practice of crimes against the National Financial System, the popular economy and money laundering, so it would be up to the Federal Justice, unless better judgment, to know them and judge them“.
The Federal Judge of the 9th Circuit of Campinas, on receiving the case, sent it back to the State Courts because he understood that it would not be „faced with the commission of any crime against the National Financial System or crime against the Capital Market (Law no. 6.385/76), which would have the ability to attract the present investigation to the scope of Federal Justice“.
STJ decision on PCC cryptomoracs
There was no other way out but for the STJ to decide who should try this case. According to the decision of Minister Felix Fischer, „there is no evidence of damage to goods, services or interest of the Union, sufficient to attract federal jurisdiction.
Fischer based his decision on similar cases already seen by the STJ, in which the court mentioned that the „crime known as ‚money laundering‘ and typified in Article 1 of Law No. 9,613/1998, will only fall under federal jurisdiction when practiced against the financial system and economic-financial order, or to the detriment of goods, services or interests of the Union.
The Federal Public Prosecutor’s Office, when consulted, had also already opined „in the sense of knowing the conflict to declare the competence of the Court of Law of the 4th Criminal Court of Campinas – SP“.
According to Minister Felix Fischer, the Criminal Court of Campinas (SP) had stated that the jurisdiction to decide on the case would be the Federal Court arguing that
That was not the view of the minister, however, who said that „there is no evidence of damage to goods, services or interest of the Union, sufficient to attract federal competence. Fischer based his decision on similar cases already seen by the STJ, in which the court mentioned that the „crime known as ‚money laundering‘ and typified in Article 1 of Law No. 9,613/1998, will only fall under federal jurisdiction when practiced against the financial system and economic-financial order, or to the detriment of goods, services or interests of the Union.
This is not the first time that a case of a negative conflict of jurisdiction involving cryptomorphs has reached the STJ. Fischer, when deciding the case involving money laundering for the CCP with cryptomoreds, even cited one of the first of them as dealing with a discussion about a suspected financial pyramid in Embu das Artes (SP).
At the time, the third Section of the STJ was unanimous in deciding that it would be up to the state courts to handle the case. The ministers were eventually accompanied by the Rapporteur Minister Sebastião Reis Júnior. The rapporteur said that the negotiation of Bitcoin Machine could not be investigated on the basis of the crimes provided by federal legislation.
„In fact, I believe that the conduct investigated does not bind to the crimes provided for in Articles 7, II of Law 7492/1986, and 27-E of Law 6385/1976, notably because the cryptomime, until then, is not considered as currency or securities,“ said the rapporteur.
The reason for this is that the transaction with cryptomime has no regulation and there is no legal provision for it to be supervised or authorised by the Securities Commission or the Central Bank, given that it is neither a type of security or currency in itself.