by Felipe Colloca e Caio Giuranno

According to the Serasa Experian Bankruptcy and Court-Supervised Reorganization Indicator, in October 2024, Brazil recorded 223 new requests for court-supervised reorganization, representing an increase of approximately 37% compared to the same month of the previous year. Likewise, Bankruptcy filings raised by 50% during the same period.

This scenario requests more attention to the offenses outlined in Law No. 11,101/05, commonly referred to as “bankruptcy crimes” (although these provisions also apply to cases of reorganization).

One often overlooked aspect when analyzing these offenses is the peculiar statute of limitations, inherited from Decree-Law No. 7,661/45, which governed bankruptcy proceedings until Law No. 11,101/05 entered into force.

Unlike the Penal Code, Decree-Law No. 7,661/45 established a two-year statute of limitations for bankruptcy crimes (article 199), without consideration of the abstract or concrete punishment in question. Regarding the beginning of the statute of limitations term, this started from the final judgment of the decision that either concluded the bankruptcy or deemed the arrangement fulfilled (article 199, sole paragraph), a rule confirmed by the Brazilian Federal Supreme Court in Precedent 147. Hence, the statute of limitations did not start upon the completion of the offense.

As a substantive rule, this provision continues to apply when it benefits defendants who committed offenses prior to June 9, 2005, the effective date of Law No. 11,101/05.

Such law reformed bankruptcy and reorganization procedures and modified the statute of limitations framework. It explicitly stated that the statute of limitations is governed by the Penal Code, but with an important caveat: the limitation period begins from the declaration of bankruptcy, the granting of court-supervised reorganization, or the approval of the out-of-court reorganization plan (Art. 182).

In other words, the starting point for the limitation period, which was previously the conclusion of the proceedings, was anticipated to an earlier stage.

It is worth noting that a quick review of bankruptcy crimes reveals that they can be committed before or after the declaration of bankruptcy, the granting of court-supervised reorganization, or the approval of the out-of-court plan. For instance, creditor favoritism (article 172) explicitly states that it can be consummated either before or after these events. On the other hand, the crime of embezzlement, concealment, or misappropriation of assets (article 173) necessarily occurs afterward. This raises the question: why not apply the Penal Code’s general rule for the initial term of the statute of limitations?

The answer lies in article 180 of Law No. 11,101/05, which establishes that the declaration of bankruptcy or the granting of reorganization is an objective condition for criminal punishability in bankruptcy offenses. Since criminal prosecution cannot begin before these events, the legislator considered it appropriate to start the period of limitations only after such acts.

This legislative choice presents certain challenges that require resolution through judicial and jurists’ interpretation, starting with the (im)possibility of initiating a police investigation before the issuance of a judgment in the bankruptcy or reorganization process. On one hand, there may be sufficient evidence to justify preliminary investigations; on the other, the uncertainty surrounding the fulfillment of the condition precedent may lead to fruitless or premature investigations.

Another issue arises concerning offenses committed after the judgment. A literal application of Article 182 of Law No. 11,101/05 could conflict with the principles of reasonableness, proportionality, and the logic of limitation system in criminal law. These conflicts highlight the need for an interpretation that reconciles the special provision with the broader principles of the Brazilian penal system.

To illustrate, if a crime is committed more than two years after the judgment, a literal reading of Article 182 would suggest that the offense is already time-barred before it even occurred. Such an outcome clearly violates the logic of the penal system, which presumes the passage of a minimum period before the statute of limitations can be invoked.

Nevertheless, it is well-established that the statute of limitations serves to ensure that the State exercises its punitive power within a reasonable timeframe, respecting due process. Calculating the limitation period from an arbitrary point, such as the declaration of bankruptcy, undermines this objective by disregarding the time elapsed between the commission of the crime and the initiation of a potential investigation.

Given this incompatibility, legislative or interpretative adjustments may be necessary to align the application of Article 182 with the principles of the Penal Code. Some possible alternatives include:

• Commencing the statute of limitations from the consummation of the crime, while suspending the period until the declaration of bankruptcy or its equivalent occurs (as an objective condition of punishability); or
• Applying Article 182 only to offenses committed before the judgment, while adhering to the general rule for crimes committed thereafter.

In conclusion, the inconsistencies and interpretative challenges surrounding the statute of limitations for bankruptcy crimes in the Brazilian penal system, particularly for offenses committed after the declaration of bankruptcy or the granting of the reorganization, underscore the need for solutions that enhance coherence and legal certainty. While legislative reform are welcome, jurisprudential interpretations can also fill this gap; in any case, it is fundamental that the issue is addressed consistently, thereby strengthening the effectiveness of criminal justice and fostering trust in the legal system.