In less than five years of existence, the law 12.846/2013 better known as the “Brazilian Anticorruption Act” has posed great challenges to the national juridical system of public prosecution as well as to the application of civil and administrative sanctions. The law did not introduce the criminal responsibility of companies, but only its objective culpability for acts of corruption.In a public debate organized by FRONT (Study Group of Transnational Criminal Processual Law) from the Institute of Public Law of Brasilia (IDP), legal authorities on this matter discussed the main questions of the moment concerning the Anticorruption Act, with focus on the coordination between institutions and legal cooperation among countries.
The event, entitled: “Anticorruption Act: Coordination and Cooperation, National and International”, organized by the IDP professor, Maria Rosa Loula, with the mediation of the Superior Court of Justice (STJ) Minister, Villas Bôas Cueva, raised concrete questions faced by the public administration, Public Prosecutor´s Office and lawyers in the application of the leniency agreement institute, created by the Act.
The debate had the participation of the Minister of Transparency and National Comptroller´s Office (CGU), Wagner Rosário, former member and Chief Prosecutor of the National Council of Economic Law (CADE), Gilvandro Araújo, professor of IDP and member of the Federal Prosecutor´s Office (MPF), Vladimir Aras, and the partner of FeldesnMadruga and PH.D in Law, Antenor Madruga.
“The law attributed to CGU the responsibility to punish companies involved in corruption practices”, observed Wagner. However, it is not possible to undertake this task without active participation from other institutions of the States´ defense such as the General Attorney´s Office (AGU), for instance. He emphasized the importance of the leniency commissions created to monitor concrete cases, always with appointed members from CGU, AGU and MPF, as fundamental instruments of coordination. “We have reached common grounds in the interpretation of the law amongst ourselves. Even though, sometimes, the independent actions of individual prosecutors non-aligned with the orientations produced by the MP thematic chambers, sometimes, get in the way. There are also other institutions, such as the Audits Office (TC), for example, that are not yet involved in this effort”.
Vladimir Aras observed that there is a great concern on the part of MPF to promote the necessary balance between the principal of functional independence of prosecutors, guaranteed by the Constitution, with the necessity of building the institutional unit of MPF. He mentioned the work of the 5th and 2nd thematic chambers of MP, dealing respectively with corruption and criminal matters, in the establishment of general guidelines for the work of prosecutors in concrete cases, as exemplary of this effort.
Gilvandro Araújo spoke about his previous experience in CADE in the criminalization of private agents involved in economic crimes, as the precursor of the current leniency agreement in Brazil. “There is a great difficulty to incorporate the logic of agreement between companies and the public administration and this is at the root of challenges faced”, said Gilvandro. According to him, it is imperative to design a broad policy of combat and effective punishment of corruption, without wishing to address the full complexity of this crime using only one legal institute, such as the leniency agreement.
Antenor Madruga underlined the fact that there is only one public interest to sanction effectively and impartially corruption acts committed by companies, as opposed to many different public interests, supposedly guarded by different institutions. “We see a great change in the national corruption scenario, specially on the business side, that has stopped to naturalize the payment of bribery, as the result of Operation Car Wash”.
Maria Rosa Loula, professor at IDP, raised questions of what would be the best way to establish guidelines for the role of different public institutions in the application of the Anticorruption Act, largely flexible and open in its original text. She mentioned the example of the State of Mato Grosso, where a state decree limits the way in which each organ of the state administration should act and furnishes general parameters for the calculation of fines imposed on businesses, currently one of the most recurring problems in Brazil. “Would it not be more democratic to do this coordination by a decree?”.
The challenges of coordination on the administration level, repeat itself in the international arena. Sophisticated corruption schemes typically involve actions in different countries. That is why effective punishment and safeguard of the right of companies to be protected from double incrimination, depends on coordination between authorities of different jurisdictions.
The leniency agreement with Odebrecht, involving facts taking place in Brazil, the United States, Peru and Argentina, among other countries, was mentioned as an example. “The proof that the company turns in voluntarily against itself as part of a leniency agreement in Brazil cannot be used to start prosecution of the same company in other countries”, said Vladimir Aras. “As a lawyer I have great concern when counseling a client to collaborate with authorities since there is not enough legal security, yet, to safeguard against double incrimination, be it promoted by different authorities of the same State, or in other jurisdictions”, concluded Antenor.Back