Corrupt companies are free from punishment

Valor Econômico - Special Section - Fighting Corruption - 17/08/2012
The employee of a company may even be caught giving a box to a public official to release a permit, pretending not to have seen that the work does not correspond to the approved plan or defrauding a bid. Hence the company is punished for bribery goes a long way because tasting maracutaia is practically impossible. At most, in the most serious cases, it is considered untrue and is prohibited from providing new services to the Government. The loss is paid by the taxpayer.

Impunity is on its way to an end. Bill 6.826/2010, known as the Anticorruption Law, drafted by the Executive Branch, is slowly passing through the Chamber of Deputies. “We are moving towards an agreement and the PL will probably be approved after the October elections”, comments deputy Carlos Zarattini (PT-SP), PL's rapporteur.

The rapporteur's hope is to approve the PL in the Special Committee so that it can proceed directly to the Senate. But there is always a risk that 10% of deputies will present a request asking for the bill to be considered by the plenary of the Chamber, further delaying the work. The delay is not just due to the bureaucracy of legislative procedures. “The powerful corporate lobby works to mischaracterize and delay the approval of the PL”, comments Zarattini. The lobby's biggest target is strict responsibility, considered the essence of the project. The legal instrument allows punishing the company that benefited from a harmful act, regardless of whether the action is proven. The company will be held responsible if it has obtained any benefit. "Strict liability is non-negotiable," he says.

Until now, the punishment of those involved in cases of bribery or corruption is practically unfeasible due to the lack of specific legislation for legal entities - be they companies, class entities, or non-governmental organizations. The relations between the private sector and the public administration are governed by Law 8.666 / 93, of Bidding. Companies that fail to comply with the provisions may be warned, fined and considered unfair. "Disqualification is contested in the courts because it is difficult to prove the involvement of companies," explains Zarattini. "When employees are caught trying to bribe public officials, they claim that employees acted on their own."

With the approval of PL 6.826 / 2010, Brazil will leave a delicate position for not complying with international treaties. This is the case of the 1997 Convention on Combating the Corruption of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development (OECD). Brazil, Argentina and Ireland are the only of the 34 signatory countries that have not created specific legislation for punish corrupt companies.

"Another issue that the country is not addressing with due attention is the illicit enrichment of public officials, although it is a signatory to a United Nations (UN) convention on the issue" comments Josmar Varillo, from Amarribo Brasil. The latest news from Bill 5.686 / 2005, authored by the Executive, was a request by deputy Amauri Teixeira (PT-BA) to include it on the voting agenda of the Chamber of Deputies in September last year.