Currency Evasion: How to defend yourself at court

Brazilian citizens and foreign residents in Brazil have been facing the risk of  criminal proceedings under the so-called crime for unreported transfer abroad of currency and other valuables.

However, this criminal type is in defiance of the Brazilian Constitution.

The legislation in force is ruled under article 22 and its sole paragraph of Law 7.493, of June 16, 1986, and article 65 of Law number 9.069/95.

Such article 22 imposes a penalty of 2 to 6 years of imprisonment plus a fine for those who carry on an unauthorized exchange operation with the purpose of promoting remittance of currency abroad from Brazil (currency evasion).

Its sole paragraph submits to the same penalties whomever under any pretense, and without legal permit, shall carry on the remittance of money or currency abroad from Brazil, or who shall keep deposits abroad not reported to the competent federal agency in Brazil.

On its turn, article 65 of Law n. 9.069/95 states that such a crime is considered to have occurred under three distinctive hypotheses:

a) when a currency exchange is carried out without the participation of a banking establishment in sending financial resources abroad, whenever any such remittances shall exceed an amount equivalent to R$ 10.000,00 (ten thousand Brazilian Real);

b) whenever a transfer of currency abroad is made in excess of an equivalent to R$ 10.000,00 (ten thousand Brazilian Real), without an intervening bank institution to implement such a transfer, and

c) whenever any such transfer in excess of R$ 10.000,00 (ten thousand Brazilian Real) is made in cash and not accompanied by the respective Statement of Values Carried (Declaracao de Porte de Valores – DPV).

Pursuant to the Brazilian Central Bank Circulars 3225/2004, 3278/2005 and 3313/2000 the same penalties of article 22 shall be imposed on any individual who shall keep bank deposits abroad not reported to the Central Bank, whenever any such amounts shall exceed an amount greater than US$ 100,000.00 or its equivalent in other currencies.

Based upon a careful study of the pertinent Brazilian legislation and the Brazilian Federal Constitution, PRADO GARCIA ADVOGADOShas reached a solid conclusion that such legislation and its criminal type are unsustainable, to the extent that they violate individual rights and constitutional guaranties.

Therefore, our clients are being advised to file for “habeas corpus” at the police proceedings level or under the undergoing criminal cases in Court, in order to obtain a decree that shall release them from any such criminal accusations and cases. In all such cases already terminated with a Court decree recognizing the occurrence of any such crimes, PRADO GARCIA ADVOGADOS recommends the filing of a criminal revision request at Court, as admitted by the Criminal Proceedings Code.

A criminal revision request may be coupled with a request for recovery of the retained assets as well as for payment of damages.

For further information, please send us an e-mail to advocacia@pradogarcia.com.br or reach us by phone at 55.11.3242.8799.