Exceptional criminal compliance and corporate due process under Law 15,358/2026

Law 15,358/2026, presented as a framework for combating organised crime in Brazil, does not merely create offences or increase penalties. One of its most sensitive features is the displacement of criminal policy towards the economic and corporate sphere. The company no longer appears only as an instrument, beneficiary, or victim of crime; it becomes the direct target of precautionary measures capable of affecting management, contracts, cash flow, shareholders or quota-holders, employees, and business continuity (Brazil, 2026).

Article 10 makes this displacement clear. It authorises, even during the investigative stage, the immediate removal of partners or shareholders and judicial intervention in the management of a legal entity where there are concrete indications that it benefits from an ultra-violent criminal organisation, a paramilitary group, or a private militia. Although framed as protective and precautionary, the measure allows judicial substitution of business management before any final adjudication of liability (Brazil, 2026).

It is in this sense that one may speak of criminal compliance by exception. Compliance, ordinarily associated with risk prevention and internal controls, begins to operate as compulsory judicial management of the suspect company. The court-appointed intervenor may reorganise the legal entity, identify assets and funds, review contracts, protect third parties acting in good faith, and prepare more intrusive measures, such as sale, liquidation, or forfeiture. The grammar of corporate integrity is therefore absorbed into a criminal-law rationality of urgency.

The hypothesis advanced here is that the constitutionality of this measure cannot be affirmed in the abstract, merely because organised crime is serious. It depends on strict criteria of necessity, proportionality, heightened judicial reasoning, effective adversarial proceedings, periodic review, and protection of third parties acting in good faith. Without these filters, intervention risks becoming anticipatory punishment under the language of corporate integrity. The analysis therefore does not reject intervention in advance; it asks which safeguards are necessary for an intrusive measure to remain precautionary rather than punitive.

From corporate prevention to imposed criminal compliance

Corporate compliance has been consolidated as a language of prevention. Its ordinary vocabulary is that of risk management, corporate integrity, internal controls, auditing, traceability, and prevention of money laundering. Even when associated with sanctions, compliance normally operates as a mechanism for anticipating risks and demonstrating an organisational commitment to legality.

Law 15,358/2026 shifts this axis. In Article 10, compliance no longer appears merely as an internal technique of prevention, but becomes part of a form of compulsory judicial management of the company under suspicion. The provision establishes that, during the investigative stage, where there are concrete indications that the legal entity benefits from an ultra-violent criminal organisation, a paramilitary group, or a private militia, the judge shall order the immediate removal of its partners or shareholders and judicial intervention in its management. It further provides that the intervenor must have an unimpeachable reputation, technical expertise, and experience in management or compliance, taking over the company for an initial period of six months, extendable while the grounds persist.

This provision significantly alters the role of compliance within the criminal justice system. It is no longer merely a matter of verifying whether the company had prior prevention mechanisms, nor of assessing whether its internal controls were adequate or deficient. What is instituted is compliance imposed from the outside in, judicially ordered and carried out by a third party appointed by the court. Auditing, asset segregation, contract review, suspension of suspicious transactions, and allocation of resources are mobilised as instruments for containing organised crime.

This does not deny that corporate structures may be used by criminal organisations. Shell companies, captured enterprises, money-laundering vehicles, and legal entities used for territorial or economic control are real problems. The critical issue is whether the legal response preserves the distinction between prevention, investigation, and punishment. When the State replaces management before conviction, blocks operations, and transfers business conduct to an intervenor, the measure approaches provisional criminal-law governance of the company.

That is why the expression criminal compliance by exception seems appropriate. The exception lies not only in the severity of the phenomenon, but also in the intensity of the technique employed. Compliance, which ordinarily seeks to rationalise business activity and prevent unlawful acts, begins to function as a legitimising language for a deep precautionary intervention, capable of reorganising the company, removing partners or shareholders, affecting contracts, and conditioning economic continuity.

The legitimacy of this intervention will therefore depend on the manner in which it is applied. If understood as an automatic response to the mere suspicion of contact between the company and organised crime, the measure tends to turn compliance into anticipatory punishment. If, by contrast, it is treated as exceptional and based on a concrete demonstration that the legal entity has been criminally instrumentalised, it may preserve lawful activity and distinguish between the company itself, the partners or shareholders involved, and third parties acting in good faith. The decisive point is to prevent the technical language of compliance from neutralising due process.

Judicial intervention as a high-intensity business precautionary measure

The judicial intervention provided for in Article 10 cannot be understood as a mere technique for inspecting the company under suspicion. Although the provision characterises it as a precautionary measure, its effects go beyond the preservation of individualised assets or the occasional interruption of unlawful operations. It authorises, during the investigative stage, the removal of partners or shareholders and intervention in management whenever there are concrete indications that the legal entity benefits from an ultra-violent criminal organisation, a paramilitary group, or a private militia.

The intensity of the measure is apparent in its very normative architecture. Once the intervention is ordered, any financial, corporate, or managerial operation involving funds or financial assets is immediately blocked until the intervenor is appointed. The intervenor must have an unimpeachable reputation, technical expertise, and experience in management or compliance, and takes over management for an initial period of six months, extendable while the grounds persist. During this period, the intervenor may suspend contracts and suspicious transactions, sever ties with persons under investigation, audit accounts, identify and segregate illicit assets, promote forfeiture measures, propose reorganisation or judicial liquidation, and allocate liquid resources to the designated court account.

The measure is therefore directed at the business organisation itself. It affects governance, decision-making, cash flow, contracts, reputation, and the ability to continue operating. It does not merely preserve assets for the proceedings; it provisionally reorganises the company under judicial direction.

This finding is relevant because, in criminal proceedings, a precautionary restriction is not legitimised solely by the formal existence of a statutory provision. As Pedro Machado de Almeida Castro (2017, p. 692) observes, every restrictive State measure in criminal law and criminal procedure must have a prior, written, and strict legal form, in addition to a constitutionally legitimate aim. The author also notes that express legislative provision of less severe precautionary measures reduces the scope for accepting atypical or expansive measures (Castro, 2017, p. 693). Article 10 has an express statutory basis, but this does not remove the requirement of restrictive interpretation, precisely because its effects are broad and potentially irreversible.

The same caution should guide the analysis of the evidential basis of the decision. Caio Badaró Massena (2021, p. 1,638) argues that evidential standards indicate the degree of confirmation that a hypothesis must attain, on the basis of the evidence, in order to be regarded as proven, while also distributing the risk of error between the parties. Although his specific object is preventive detention, the warning is useful for any high-intensity criminal precautionary measure: the decision cannot rely on generic formulae of dangerousness. It must set out the factual hypothesis, the corroboration of the available evidence, and the concrete risk to be neutralised.

This point is even more sensitive because judicial intervention in a company does not affect only those under investigation. It also reaches employees, suppliers, creditors, consumers, uninvolved partners or shareholders, and third parties who contracted in good faith. The decision ordering such intervention must therefore analytically separate the grounds for the measure. Massena (2021, p. 1,652) observes that precautionary decisions must be organised into specific sections, distinguishing assumptions, requirements, and merits, and that procedural danger must be identified on the basis of its own evidence. Transposed to corporate intervention, the judge must demonstrate separately the concrete evidence of benefit to the legal entity, the link with the criminal organisation, the current risk of continuation of unlawful activity, and the insufficiency of less intrusive measures.

This requirement also stems from the logic of compliance. The integrity programme, in its ordinary formulation, is conceived as a set of internal mechanisms for integrity, auditing, whistleblowing incentives, codes of ethics, and policies aimed at preventing, detecting, and remedying deviations, fraud, and irregularities (Brazil, 2024, p. 6). The Office of the Comptroller General also emphasises that there is no single model and that each company must structure, implement, and update its programme according to its own characteristics and risks, in a continuous and gradual process (Brazil, 2024, p. 38). Article 10 reverses this logic: compliance ceases to be a progressive organisational construction and becomes a State technique for replacing corporate management.

Hence the need to understand judicial intervention as a high-intensity corporate precautionary measure. It is justified only where there is a concrete demonstration that the legal entity has been effectively instrumentalised by organised crime and that less severe measures would be insufficient to interrupt the risk. Before removing partners or shareholders and transferring management to the intervenor, the judge must examine alternatives such as partial freezing of assets, independent auditing, suspension of specific contracts, removal of a particular manager, or reporting duties. The abstract gravity of organised crime does not, by itself, authorise the judicial substitution of corporate management.

The problem, therefore, does not lie in the abstract possibility of intervention. In extreme cases, the measure may be necessary to separate lawful economic activity from the criminal structure that exploits it. The risk lies in the trivialisation of the technique. Applied without heightened justification, effective temporal delimitation, and individualisation of the links between the company, its partners or shareholders, and the criminal activity, the intervention ceases to be preservation and begins to operate as an anticipatory economic sanction.

Due business process and restrictive reading of the intervention

The judicial intervention in legal entities provided for by Law 15,358/2026 should be understood as one of the most intense expressions of the precautionary expansion of punitive power over economic activity. Its novelty lies not only in affecting assets or funds linked to organised crime, but in allowing corporate management itself to be replaced during the investigative stage. The company under suspicion is thereby subjected to an urgent criminal-law rationality, in which management, auditing, asset segregation, and compliance are converted into instruments of State risk containment.

This finding does not necessarily lead to the abstract rejection of the measure. It is possible to acknowledge that criminal organisations, paramilitary groups, and private militias use corporate structures to launder money, conceal assets, control markets, or sustain territorial domination. In such extreme cases, judicial intervention may separate lawful economic activity from the criminal structure that has captured or instrumentalised it. The problem arises when the severity of the phenomenon lowers the burden of justification required of the judicial decision.

Intervention must therefore be interpreted as an ultima ratio precautionary measure. The existence of an express statutory provision is indispensable, but not sufficient. The requirement of strict legal form and legitimate constitutional purpose identified by Castro (2017, p. 692) becomes stronger when the measure applies not to a specific asset, but to the business organisation itself, its contracts, reputation, employees, and continuity.

Nor is it enough to invoke “concrete indications” in generic terms. The decision must explain what those indications are, which hypothesis they support, and what current risk justifies the measure. In a high-intensity corporate precautionary measure, the risk of error falls not only on investigated persons, but also on employees, suppliers, creditors, consumers, uninvolved partners or shareholders, and third parties acting in good faith (Badaró Massena, 2021, p. 1638).

From this follow certain minimum criteria for a constitutionally adequate application of Article 10. The decision must demonstrate: the effective instrumentalisation of the legal entity by the criminal organisation; the link between the corporate benefit and the unlawful activity; the insufficiency of less onerous measures; the temporal delimitation of the intervention; the protection of third parties acting in good faith; and the separation between the company, the partners or shareholders who may be involved, and the lawful economic activity. Any extension of the measure, in turn, cannot be automatic. It must depend on renewed justification, based on the concrete persistence of the grounds that originally justified the intervention.

This restrictive reading also preserves the proper meaning of compliance. According to the Brazilian Office of the Comptroller General, the integrity programme consists of internal mechanisms aimed at preventing, detecting, and remedying deviations, fraud, and irregularities, and must be structured according to the characteristics and risks of each company, in a continuous and gradual process (Brazil, 2024, pp. 6 and 38). Judicial intervention reverses this logic by turning compliance into an external, compulsory, and precautionary technique of corporate management.

In summary, Law 15,358/2026 is right to recognise that the fight against organised crime requires attention to its economic structures. However, by authorising the removal of partners or shareholders and judicial intervention in management during the investigative stage, it creates a measure of very high intensity, situated at the boundary between precautionary preservation and anticipatory punishment. The constitutionality of the intervention will depend on strict containment. Without heightened judicial reasoning, effective adversarial proceedings, periodic review, and protection of third parties acting in good faith, criminal compliance by exception ceases to preserve lawful activity and begins to function as a technical language for the suspension of guarantees.

Conclusion

Law 15,358/2026 correctly recognises that organised crime may operate through companies, contracts, assets, and financial flows. However, the judicial intervention provided for in Article 10 cannot be treated as an ordinary precautionary measure. By allowing the removal of partners or shareholders and the replacement of corporate management during the investigative stage, the law creates a high-intensity restriction that affects governance, reputation, contracts, employees, and economic continuity. For that reason, the measure must be interpreted restrictively and supported by concrete evidence, not by generic references to risk or organised crime (Castro, 2017, p. 692; Badaró Massena, 2021, p. 1638).

Criminal compliance by exception must therefore remain an exceptional response to the effective instrumentalisation of the company by organised crime. The decision ordering intervention must demonstrate the link between the legal entity and the unlawful activity, the insufficiency of less onerous measures, the protection of third parties acting in good faith, and the temporal limits of the intervention. This restrictive reading also preserves the ordinary meaning of compliance as an internal, gradual, and risk-based process of prevention, detection, and remediation (Brazil, 2024, p. 6 and 38). Without these limits, judicial intervention ceases to protect lawful economic activity and begins to operate as anticipatory punishment under the technical language of corporate integrity.

References

BADARÓ MASSENA, Caio. Prisão preventiva e standards de prova: propostas para o processo penal brasileiro. Revista Brasileira de Direito Processual Penal, Porto Alegre, v. 7, n. 3, p. 1631-1668, set./dez. 2021.

BRAZIL. Controladoria-Geral da União. Programa de Integridade: Diretrizes para Empresas Privadas. Volume II. Brasília: CGU, 2024.

BRAZIL. Lei nº 15.358, de 24 de março de 2026. Institui o Marco Legal do Combate ao Crime Organizado no Brasil (Lei Raul Jungmann); tipifica os crimes de domínio social estruturado e de favorecimento ao domínio social estruturado; e altera os Decretos-Leis nºs 2.848, de 7 de dezembro de 1940 (Código Penal), e 3.689, de 3 de outubro de 1941 (Código de Processo Penal), e as Leis nºs 8.072, de 25 de julho de 1990 (Lei dos Crimes Hediondos), 7.210, de 11 de julho de 1984 (Lei de Execução Penal), 11.343, de 23 de agosto de 2006, 10.826, de 22 de dezembro de 2003, 9.613, de 3 de março de 1998, 4.737, de 15 de julho de 1965 (Código Eleitoral); 13.756, de 12 de dezembro de 2018; e 14.790, de 29 de dezembro de 2023. Brasília: Presidência da República, 2026. Disponível em: https://www.planalto.gov.br/ccivil_03/_ato2023-2026/2026/lei/l15358.htm. Acesso em: 11 jun. 2026.

CASTRO, Pedro Machado de Almeida. Medidas cautelares pessoais, poder geral de cautela e a taxatividade mitigada. Revista Brasileira de Direito Processual Penal, Porto Alegre, v. 3, n. 2, p. 691-716, maio/ago. 2017.

Nota do autor

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Como citar: SANTA CECÍLIA, Arthur Phillipe Milanez. SP Exceptional criminal compliance and corporate due process under Law 15,358/2026. Jornal de Ciências Criminais do IBCCRIM, 11 jun. 2026. Disponível em: https://jcc.ibccrim.org.br/artigos/exceptional-criminal-compliance-and-corporate-due-process-under-law-15358-2026/. Acesso em: 11 jun. 2026.

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