The advances and problems of the Anti-Corruption Law

Former STF minister, Nelson Jobim, at the closing lecture of the AIDE seminar
Former STF minister, Nelson Jobim, at the closing lecture of the AIDE seminar

Theme was discussed at a seminar of the International Academy
Direct and Economy, which was sponsored by ETCO

The new anti-corruption laws represented an advance for Brazil, but created legal confusion that will have to be resolved by the courts. In addition, they are insufficient to correct the serious problem of embezzlement of public money in the country.

These were two of the main conclusions of the Anti-Corruption Law - Limits and Consequences for Business seminar, promoted by the International Academy of Law and Economics (AIDE) on September 18, in São Paulo. The event was sponsored by ETCO-Brazilian Institute of Competition Ethics.

The seminar brought together lectures by more than twenty experts from the legal, economic and academic circles, who addressed various aspects of the new laws. Including the prohibition, defined in a vote in the Supreme Federal Court (STF) on the same day of the seminar, on the contribution of companies to political campaigns. The subject was approached by ex-STF minister Nelson Jobim, who showed skepticism about his results. According to him, the problem is not the financing coming from companies or individuals, but the high cost of the campaigns, whose reduction requires deeper changes in the political system.

Delay and loss of credibility

Former Minister Gilson Dipp, of the Supreme Court of Justice (STJ), was one of those who addressed the legal confusion that has settled in the Brazilian legal system in recent years, with the Anticorruption Law overlapping others that deal with related issues, such as the Administrative Improbity Act, the Criminal Organizations Act, the Money Laundering Act and the Penal Code. "We have a chaotic legal universe," he said. Because of this confusion, the ex-minister of the STJ foresees much delay in the final judgment of corruption cases. "This can lead to a loss of credibility for the law and the bodies responsible for applying them," he warned.

But Dipp believes that the Anti-Corruption Law has filled an important gap in the fight against corruption by instituting strict corporate liability. This provision means that companies involved in corruption can be condemned regardless of whether their owners or managers are aware of the fact. It is enough for the company, through any of its representatives, including external ones, to have participated in the crime.

Due to the importance of the topic, the responsibility of the legal entity deserved two panels of the seminar: one on the sanctions provided for in the administrative sphere and the other, in the judicial sphere, chaired respectively by jurists Bernardo Cabral and Ivette Senise Ferreira, vice president of OAB-SP. Lawyer and academic Hamilton Dias de Souza, a member of the ETCO Advisory Council, was one of the panelists who discussed the punishments at the judicial level.

The lawyer Ives Gandra Martins, president of honor of AIDE, regretted the absence, in the Anticorruption Law, of new instruments to curb the crime of concussion, practiced by public agents who demand bribes and other advantages to hire suppliers or release their payments. "If a company of 20 thousand, 30 thousand employees is placed against the wall - either 'enter the club' or will not win any competition -, does it have a choice?", He asked.

Capitalist remedy

Despite the legal problems, many speakers consider that, as a whole, the country is advancing in the fight against corruption, also taking into account the performance of the investigation and control bodies. Some believe, however, that it is necessary to adopt new mechanisms to prevent this type of crime.

In the master class that opened the seminar, jurist Modesto Carvalhosa spoke about the path taken by the United States, which reduced corruption in public works using a capitalist remedy: the so-called "performance bonds". It is a type of insurance that guarantees the term, quality and price of works contracted by the government. This system, according to him, makes the insurer control the work very strictly, starting with the quality of the project that gives rise to the bidding process.

Judge Fábio Prieto, president of the Federal Regional Court of the 3rd Region, agreed. “You can't put a guy who earns R $ 10 to inspect a R $ 4 billion project,” he criticized. "To solve, you need to put someone the same size."