Is Privilege Against Self-Incrimination Applicable to Brazilian Internal Investigations?

Brazilian practitioners face a dilemma regarding conflicting labor and criminal provisions arguably applicable to employees under internal investigations regarding, on one hand, employee cooperation obligations and, on the other hand, privilege against self-incrimination. Applicability is indeed arguable since there are no specific statutory provisions or robust case law regarding internal investigations in Brazil. This paper sheds light on the Brazilian experience regarding internal investigations into misconduct and the interplay between resolution applicants and public authorities; and analyzes theories regarding the enforceability of privilege against self-incrimination within internal investigations considering the Brazilian practice and statutory regime. This article concludes that privilege against self-incrimination applies to internal investigations when private and state action are present and entwined, provides examples of Brazilian public authorities’ active influence over internal investigations and points to practical recommendations to local practitioners.

By Gabriela Costa Carvalho Forsman^[1]

I. INTRODUCTION

Brazilian practitioners face a dilemma regarding conflicting labor and criminal provisions arguably applicable to employees under internal investigations. Applicability is indeed arguable since there are no specific statutory provisions or robust case law regarding internal investigations in Brazil. Local practitioners must therefore abide