Positive and debatable aspects of the new anti-corruption laws
This was the theme of a lecture by ex-minister Gilson Dipp, of the STJ, at a meeting of the ETCO Advisory Council
Among the topics on which the ETCO-Brazilian Institute of Ethics in Competition works, none has had as much news in recent years as the fight against corruption. In 2013, after gigantic popular demonstrations, the new Anti-Corruption Law and the Criminal Organizations Law were approved, which instituted instruments such as the award and the leniency agreements. In 2014, there was the Lava Jato operation, with its repeated phases and revelations that have kept the theme in focus all the time.
To contribute to the reflections on the matter, the last 2015 meeting of the ETCO Advisory Council, held in Rio, on November 27, had a special guest: former Minister Gilson Langaro Dipp, of the Supreme Court of Justice. With the experience of who was also minister of the Superior Electoral Court, president of the group that prepared the draft of the new Penal Code and member of the National Truth Commission, he gave a lecture to share with the counselors his vision of the new laws and their possible impacts. Then he gave the following interview to ETCO in Action.
ETCO - Recently, Minister Carmen Lúcia Rocha, of the Federal Supreme Court, said she was appalled at the scorn at which acts of corruption are practiced today in Brazil and said she believed that the crime will not win justice. In your opinion, is corruption winning justice?
Gilson Dipp - I think Brazil is advancing in the legal system, in the judicial system. The Lava Jato operation is the largest and most effective criminal proceeding in Brazil in terms of effectiveness, in terms of convictions. You have never seen anything like it. I think we are winning a stage. Impunity, which is the main driver of corruption, is appearing. There is no point in making corruption a heinous crime if there is no punishment. The certainty of impunity is what fuels this entire chain. I think Brazil is improving a lot, we are living in a new era. Now, we have to be aware that we are still starting a process. Much will still be said and decided, much decision will be reformed, many involved may not even be denounced. Many may have a reduced sentence, many will be released.
ETCO - Do you see any negative points in the way the law has been applied?
Gilson Dipp - I have some doubts, not about the effects, but about some methods used to fight corruption. For example, in terms of pre-trial detention. Pre-trial detention needs to have a time limit and motivation of its own, as a threat to the economic order or to investigation. I am concerned about using preventive prisons to give satisfaction to society. This may be leading to some distortions.
ETCO - Is Justice prepared for this new moment?
Gilson Dipp - In spite of all these facts and all the new laws, whether the Anti-Corruption Law, the Criminal Organizations Law, or the award-winning plaintiff, we do not have our own Brazilian doctrine, much less jurisprudence on the subject, so all of this will depend on the evolution of events. It is an unprecedented case. In the case of awarded claims, for example, I am concerned to see that the Supreme Court and the first degree judge are acting on the same facts, on the same people, and making decisions that can be contradictory.
ETCO - Recently, Andrade Gutierrez signed a leniency agreement and promised to return about R $ 1 billion. Before, Camargo Corrêa had committed to return R $ 800 million. Former Petrobras executives who made a winning statement also made millionaire returns. This is also unprecedented.
Gilson Dipp - Such asset recovery has never been seen. I have been studying this subject for a long time and, until recently, it was practically impossible. But today there is a confusion of powers that could harm future leniency agreements. I am concerned to note that whoever is doing the screening and giving the last word is not the Federal Comptroller General, but the Public Prosecutor's Office, which has its own and exclusive attributions and different constitutional powers. I know of companies that did not make a leniency agreement because they were told to deal with the prosecutor. This is a distortion of the law. Today, it may be working, but I don't know if it will work tomorrow.
ETCO - Do we need more laws to fight corruption?
Gilson Dipp - In Brazil, we have the habit of launching packages of laws on occasion. It happened after the events of June 2013, because of all that public commotion. There were packages from the Executive, the Public Ministry and even the OAB. Many proposals are good, but they need to be well debated, and this is a long process. When this process is rushed just to satisfy society's yearnings or perceived corruption, it can cause a number of problems.
ETCO - Is this the case with the Anti-Corruption Law?
Gilson Dipp - I think it is being applied at an inappropriate time, at a peculiar moment, because it was not made for Lava Jato, it was made for Brazil, for the future. I do not believe in the effectiveness of the Anti-Corruption Law because it is a criminal law disguised as a civil and administrative law. Therefore, in the future, a series of questions will arise from companies, including from management, from Justice, when certain aspects are questioned. It is not the case now because everyone is scared. But, the moment normality returns, the defects of the law will appear.
ETCO - What do you think of the campaign 10 Measures Against Corruption, promoted by the Federal Public Ministry, to change laws and procedural aspects related to this type of crime?
Gilson Dipp - It seems to me that it is an opportunistic package. There are some good proposals that need to be discussed a lot, such as the classification of illicit enrichment. I also agree that there needs to be a change in Brazilian law regarding the amount of judicial remedies. But there are controversial points, such as the proposed arrest after a high school sentence. The Constitution says that the presumption of innocence occurs until the conviction is final. To change that, we would have to change the constitution. And even if such a law is passed, from prison after second degree conviction, there will always be a constitutional institute for habeas corpus. Now, increasing the penalty for corruption, turning it into a heinous crime, does not solve it.
ETCO - What is your assessment of ETCO's work?
Gilson Dipp - I have always appreciated the ideals of transparency, fair competition and ethics that the Institute advocates. Institutions with ETCO credibility can influence changes in habits, changes in attitudes and even help to formulate or interpret laws, helping the country to move forward.
Article: The precariousness of the rule of law
Stability and clarity are minimum requirements for law enforcement. This is not what you see in Brazil. Standards are changed frequently, often with deplorable technical quality. The interpretation given to the norms also changes continuously, without plausible justification.