São Paulo The explosion of fraud involving investment funds in Brazil is explained more by oversight failures than by gaps in market rules, according to members of the Public Ministry.
In a panel at a conference on funds at AASP (Association of Lawyers), in São Paulo, two attorneys and a prosecutor criticized this Friday (23) the delay of the CVM (Securities Commission) in taking cases to the criminal sphere.
The diagnosis was made by public prosecutors Andrey Borges de Mendonça and Marco Antônio Ghannage, from the MPF (Federal Public Ministry), and prosecutor João Paulo Gabriel de Souza, who is part of Gaeco, a group specialized in combating organized crime at the São Paulo Public Ministry.
According to Mendonça, the crimes he reported in recent years always involved the "same managers and administrators".
The prosecutor stated that the problem today is less regulatory than inspection, which allows malicious people with the intention of committing crimes to concentrate on niche markets where what he called "a blind eye" is done.
The prosecutor mentioned Planner Investimentos as an example of an institution that, according to him, "has appeared since Lava Jato".
"Alberto Youssef, 2014, and in 2026 it appears again. I don't want to pre-judge anyone, but I want to draw attention to this: why did it take us so long to notice these open fractures?", he asked.
In 2015, reports revealed that documents analyzed by the Federal Police in Operation Lava Jato recorded payments from a company owned by money changer Alberto Youssef to Planner between 2009 and 2013. Last year, the brokerage was the target of searches in Operation Compliance Zero, in investigations into Rioprevidência investments in securities linked to Banco Master.
When consulted, Planner said that it was never investigated or accused in Lava Jato. The broker explained that, in 2015, it was cited in a report, to which it responded at the time, and that 11 years later no proceedings had been initiated against the institution involving any episode.
"Planner repudiates the mention of the name of the institution by a representative of the Federal Public Ministry, in a public demonstration. It is especially serious that a public authority makes references of this nature, stating, at the same time, that it did not intend to pre-judge anyone", said the broker.
For prosecutor João Paulo Gabriel de Souza, Carbono Oculto's investigations showed that, in investment funds, there was a "total mismatch between the existence of the norm and compliance with the norm".
According to him, in the case of fintechs, also used by the money laundering scheme, there were regulatory loopholes that were corrected after the operation. In investment funds, on the other hand, the rules existed but were not followed.
More than a year after the start of the operation, the prosecutor says it has still not been possible to identify the final beneficiaries of some of the fund structures used to launder organized crime money.
Souza described pipelines set up within the financial system. In them, the money left shell companies and passed, in a matter of minutes, through layers of funds and other companies, which prevented the identification of the true final beneficiary.
"It seems to me that if this state of affairs was observed, it is because the agents were in fact very comfortable doing this. And normally this happens when you don't have supervision, you don't have repression", said the prosecutor.
"Organized crime is opportunistic. Wherever there is an opportunity to launder money with less risk, it will be present."
Prosecutor Marco Antônio Ghannage said that communication between the municipality and the MPF is slow and difficult, which makes the criminal investigation lose depth and delays the freezing of assets.
He cited as an example funds used by Banco Master, which were already investigated by the CVM before the case gained repercussion, without the investigations being taken to the criminal sphere.
The case of Infinity funds also illustrates the problem. The CVM punished the manager for operations carried out between 2014 and 2018 that financed companies within the group itself with money from funds sold as low-risk fixed income, including to municipal pension schemes.
Only in May of this year did the Federal Court block up to R$673.9 million in the assets of those being investigated, at the request of the MPF, which stated that it was awaiting the conclusion of the CVM's administrative investigation to finalize the criminal investigation.
Andrey Mendonça made an even harsher criticism when he said that he trusts the CVM's technical staff, but not necessarily in the decisions of the board, made up of political appointees.
"We have to be aware of what the institutions are like. The technical sector of the CVM is obviously technical, with quality people, but we have a composition of political appointment directors. We cannot take away this consideration, that is very clear to me", he said.
"The technical sector is what I focus on in my work. The board's decisions don't always seem to me to be technical decisions, with all due respect."
He denied the view that the Public Ministry should not file complaints against managers who signed agreements with the CVM, generally with the payment of administrative fines and without recognition of guilt.
The prosecutor assesses that the board's agreements and decisions must be considered, but they cannot leave the MP hostage nor prevent him from denouncing those involved. He also criticized the fact that the municipality does not always communicate to the MP the signing of these agreements.
In many cases, white-collar crimes receive low sentences and expire before the Public Prosecutor's Office can file charges.
The president of the CVM, Otto Lobo, followed the criticism from the audience and did not object to the members of the Public Ministry.
Before the panel, Lobo spoke about changes in the CVM's supervisory structures, such as the use of artificial intelligence and tokenization in real-time supervision via DLT (distributed ledger technology, of which blockchain is the best known form).
According to him, the fund industry reached R$11.5 trillion in net worth, and traditional inspection methods lost ground in the face of the advancement of operations.
The three members of the MP defended formal channels for exchanging information between the bodies. Mendonça said that cooperation today depends on personal relationships, on people who know each other and exchange details via WhatsApp, in a "voluntaristic" way.
For João Paulo de Souza, these flows should be created by law, along the lines of what already happens with Coaf (Financial Activities Control Council), which passes on financial intelligence information to investigative bodies.
