Increase in complaints is the result of greater transparency

Valor Econômico - Special Section - Fighting Corruption - 17/08/2012


If Brazil intends to consolidate itself as an economically competitive country, it needs legislation that effectively sanctions legal entities for the practice of corruption. The lack of such a law distorts markets, drives investors away and compromises the country's development. This is the assessment of the Chief Minister of the Union's Comptroller General (CGU), Jorge Hage Sobrinho, presented during the international seminar “The impact of Corruption on Development”, organized by Market and by the Brazilian Institute of Competition Ethics (Etco).

"It is necessary to create more effective means to reach the assets of legal entities, obtain an effective reimbursement of the losses caused, expand the punishable conduct, including to meet the international commitments assumed by Brazil", says Hage, pointing out that several countries already have laws of this nature. species, such as the United States (1977), France (2000), Italy (2001), Chile (2009) and the United Kingdom (2010).

According to the minister, in recent years, in an unprecedented way, corruption has been detected, investigated, disclosed and punished in the administrative sphere. From 2003 until now, CGU expelled 3.826 civil servants. At least 70% of cases are linked to corruption and administrative impropriety. This fight has been carried out, in an innovative way, he points out, through the articulation and cooperation between different public agencies.

In addition to facing corruption, Brazil started to invest in transparency, not only in public resources, but in any information produced or maintained by the State, which is not protected by secrecy and has no personal character. The increase in reports of corruption cases in the country, says Hage, is the result of greater government transparency and greater citizen involvement. The number of visitors to the Transparency and Controllership portal, for example, went from 285 thousand in 2005 to 3,3 million in 2012.

The Access to Information Law, expanded in its objectives, also proves to be an effective instrument, increasingly used by citizens, according to the minister. "In federal agencies, for example, we have already received more than 20 thousand questions via the Access to Information Law and more than 80% of them were answered within the deadline", he says.

Brazil's efforts to increasingly increase transparency and access to information are recognized worldwide, analyzes Hage. Currently, he says, based on the Latin American Corruption Survey 2012, there is a greater perception of the Brazilian citizen in relation to corruption. According to the survey, 88% of respondents said they were aware of a company, individual or civil servant being sued for making or receiving an improper payment.

However, much more needs to be done, says Hage. “Radical changes in Brazilian procedural legislation are necessary so that corruption and improbity are effectively punished”, he says. Among the challenges to be overcome, points out the chief minister of the CGU, are the rationalization of procedural rules, with reduction of resources and other delaying measures (PEC of Resources and CPP Reform), overcoming the “guarantor” excesses of the jurisprudence of the Courts, and approval of important bills to combat corruption (PL on Accountability of Legal Entities for Acts of Corruption, pending in the Chamber of Deputies and PL that regulates the Conflict of Interest between the public and the private sector and expands the quarantine , pending in the Federal Senate). "In addition to the adoption of exclusive public financing for campaigns and awareness of entrepreneurs that playing fair is a good deal".

For ex-minister Marcílio Marques Moreira, chairman of Etco's advisory board, the fight against corruption is just beginning. The most important thing, he notes, is to end mutual distrust between the public administration and the private sector.

Risk control

Valor Econômico - Special Section - Fighting Corruption - 17/08/2012


In a context in which the axis of growth of the world economy is inverted and shifts to emerging countries and in which commodity prices are expected to remain at high levels in the coming years, a window of opportunity opens up for nations, such as Brazil, rich in natural resources. Transforming this cycle of wealth for the benefit of the entire population will depend to a large extent on efficiently managing institutions, conducting public policies and reducing corruption.

“The difference between living a curse and a blessing is essentially linked to governance and reducing corruption,” said Otaviano Canuto, vice president of the World Bank, one of those attending the international seminar “The Impact of Corruption on Development”, organized fur Market and by the Etco institute, on Wednesday, in São Paulo.

In this context, spending control tools, greater transparency on the part of public agencies and advances in the political system are areas that need to be reinforced to curb illicit practices. For the director of public governance and development of the Organization for Economic Cooperation and Development (OECD), Rolf Alter, corruption is a global phenomenon that crosses borders and whose fight must be reinforced in view of the prospect that in the coming years more than US $ 1 trillion in investment projects in the world are carried out by different countries. "A lot of money will be invested and it will be necessary to act across the planet to prevent corruption and promote integrity," he said.

A World Bank study between 2005 and 2008 shows progress in some countries in Europe and setbacks by others in combating corruption. Administrative corruption cases, such as gifts and money given by the private sector to speed up decision-making by a public entity, have been reduced. Corruption linked to public procurement - which deals with a larger amount of public money and is more centralized - increased in the same sample of countries. "The success stories took place in the countries that carried out a specific and pragmatic reform, used monitoring and metrics to assess public performance, and created capacity for local public management," said Otaviano Canuto.

Corruption is not a problem that threatens only the Brazilian economy, but also the businesses of companies that seek internationalization. "Today we have more Brazilian companies investing abroad and the geography of interest to them is an area that is still undergoing maturing of institutions, which in some cases are still fragile," said the Director of Policies and Strategy of the National Confederation of Industry (CNI), José Augusto Coelho Fernandes.

Brazil has made progress to increase transparency in relation to Union spending, but it will still be necessary to overcome several obstacles, according to those present at the discussion, especially in small and medium-sized municipalities. One of the advances was the edition of the Law on Access to Public Information, in force since May this year. The chief minister of the Federal Comptroller General (CGU), Jorge Hage Sobrinho, said that more than 20 thousand requests for information have been received, and the bodies that receive the most consultations are Susep, INSS, Central Bank, Ministries of Finance and of Planning. Another government tool to increase data dissemination is the transparency portal, where government expenditure can be analyzed in daily detail.

"Brazil has become a reference in this field," said Hage. “Whoever used the portal before was a specific audience, like the researcher, the journalist and the civil servant. Now the Brazilian citizen is using it ”, said Jorge Hage.

For Josmar Verillo, vice-president of the Board of Directors of Amarribo Brasil, Transparency International's arm in the country, it is necessary to advance the issue mainly in small and medium-sized cities in which political parties act as gangs taking turns in power. "In some cases, royalties are even charged when there is a change in the City Hall, but interest in maintaining a scheme," he said, stressing that in these areas the main beneficiaries are politicians. In his view, it would be necessary to act in several areas. Receiving pressure from international agencies would help. It would also be necessary to revise the Penal Code and remove the privileged forum. "One has the impression that the Judiciary is fragile and that the Penal Code is out of date," he said.

Former Federal Supreme Court Minister Ellen Gracie Northfleet pointed out that, in some cases, public agencies have difficulties in rendering accounts due to bureaucratic demands. "Many are unable to fill everything that is needed," he said. Bureaucracy also reaches companies. She cited an example: in a recent conversation with a large Brazilian businessman who does business in Brazil and is active in the United States, the executive said that to manage the demands of federal, state and municipal public agencies in Brazil, he has a team of one hundred employees, while in the United States there is only one. “These difficulties end up weighing on the entire structure”, he stressed, stressing that another important task in Brazil would be the need to train public agents. "In Brazil, sometimes the mayor is elected for being friendly and for maintaining good relations with the population and not for technical criteria".

New code provides penalty for company that practices corruption

Source: Valor Econômico (São Paulo) - 04/06/2012

If the National Congress approves the changes that are being discussed for the Penal Code, companies and private agents will have more legal certainty in procedural analyzes of economic crimes, with the detailing of concepts and explanation of conducts subject to criminal classification. The proposal for a new code has a specific title for economic crimes. It will contain chapters referring to crimes against the tax order and Social Security; against the national financial system; money laundering; against intellectual and immaterial property; related to the Bidding Law; illicit enrichment; and bankruptcy. Others, related to human rights and the environment, will also be included.

Dating from 1940, the Penal Code will be completely revised, based on a series of suggestions made by a commission of jurists instituted by the Federal Senate. The intention is to improve the text and fill in the gaps resulting from current behaviors, such as the widespread use of the internet.

“The change will bring more security to the market, it will create a more sense of responsibility and ethics for agents. The preliminary draft updates, in the economic area, crimes that are outdated today ”, says Senate legislative consultant, Tiago Ivo Odon.

Among the innovations that will come in the text, is the criminalization of legal entities that practice acts of corruption against the public administration and also in the private sphere. Today, only individuals can be punished for crimes, with the exception of cases involving environmental issues. In both cases, there are penalties such as fines, suspension of activities and even the closure of the company.

The preliminary project is in the final stage of elaboration. The last Senate meeting of committee members is scheduled for June 11. After that, the rapporteur of the text, the regional attorney for the Republic Luiz Carlos dos Santos Gonçalves will consolidate the suggestions approved during the meetings that took place since the end of 2011. The rapporteur's expectation is that there will be no significant change in the final wording that will be given to the preliminary design.

There was no concern to "harden" or "soften" the legislation, says the prosecutor. “The correct expression is to make it proportional, according to the actual or potential severity of the behavior from which the penalty should be sought. They are already existing texts, but often old ones. The commission's intention was to modernize them ”.

Another change advocated by lawyers, in the legislation related to tax and social security crimes, is the impediment of filing a complaint to the Court if the debtor presents himself in court and makes a kind of security deposit, as a guarantee that he will pay off the debt in the future, or a debt installment agreement. Today, the jurisprudence of the higher courts already allows for criminal exclusion, if the debtor installs the debt or settles it before the complaint is offered.

For the rapporteur, the most emblematic change, however, is the inclusion of crimes against the financial system in the text. What is proposed is to use what is already in the law in force on these cases, of 1986, with reformulations. He recalls that the current legislation that criminalizes these conducts was passed after the scandal known as Coroa-Brastel. At the time, with the failure of a broker, thousands of people were injured.

“We have the phenomenon of emergency legislation in Brazil. A serious criminal case takes place, and the following week, a law comes along. They are usually laws that do not go through in-depth reflection. This is a law that has been controversial over these twenty years, ”he says. The new code, explains the rapporteur, will explain different penalties for conduct of singular fraudulent management (one case), period (recurrent practice) and reckless management.

This latter conduct is defined as credit operations that represent a concentration of risk not permitted by the rules of the national financial system. If the rules are not foreseen, operations with risk in sufficient volume to cause the institution to collapse in the event of default will be characterized.

A penal type that will be incorporated into the code, within the conducts of crimes against the financial system, is the use of privileged information by people who work in stock exchanges, with access to internal data about a company's investments - the so-called “insider trading ”. Today this type of conduct is already provided for in the Brazilian Corporation Law with a penalty of one to five years in prison, plus a fine of up to three times the amount of the unlawful advantage obtained as a result of the crime. According to the draft text, the minimum penalty is increased by one year. The maximum penalty and fine are maintained as in current legislation.

Some suggestions made by the commission of lawyers are similar to proposals under analysis by deputies and senators. Tomorrow, for example, the Senate should approve a set of measures to improve the fight against money laundering.

The final text is due to be presented to senators later this month, with a symbolic vote by the commission of lawyers. Then, the work will be forwarded to the Senate President, José Sarney (PMDB-AP). The Constitution, Justice and Citizenship Commission (CCJ) will analyze the proposal and join all projects related to the subject under examination by Congress.

Corruption and development

Source: Valor Econômico - 02/05/2011

I begin the collaboration on this page feeling honored and, also, anxious to contribute to a respectful debate between positions that may be divergent. Without disagreement, debate is difficult; without respect, it is impossible. I propose today an issue that I know is burning, that of corruption. I grew up, believing that corruption and underdevelopment went together. Some thought that Brazil was underdeveloped, because it was corrupt; without getting to that, I considered our country corrupt, because it was underdeveloped. But is it really so?

Because, worldwide, we see that the richest and most developed countries also show a lot of corruption. Neither I, nor any entity that studies corruption, has consistent data on its real dimension. Even the most used indicator, that of Transparency International, speaks of perception of corruption. It is possible that major corruption goes unnoticed. We may never know about it. When the Government portal revealed spending on corporate cards, even the ones that caused the most outrage were minor; certainly, big corrupt people leave no clue. But, in any case, what is read about the most developed nations, with the exception of Scandinavian countries, points out astounding scandals. Let's not just talk about Berlusconi's Italy, Chirac's France, the accusations against former Spanish prime ministers or the 1976 Dutch crisis, when it was learned that the queen's husband had received a bribe from Lockheed. Let us focus on the American invasion of Iraq and the contracts it has provided.

Corruption is not just delay, because it exists in rich countries

In 2003, I was teaching at the University of Maryland. On your College Park campus, I saw a debate about the impending invasion. An advocate explained that it would cost taxpayers nothing because it would be paid for with Iraqi oil. Never before had I seen a thief being so explicit. But the truth is that not only was Iraq's black gold delivered to whom the invaders wanted, but the United States budget was bled to the bone. However, complaints of benefits to companies linked to the then US vice president did not lead to any more demanding investigation. By comparison, the fact that Chirac, in France, and those suspected of us by the PT's monthly allowance, are indicted today, is a significant differential, although many believe that none of this will result in convictions.

Or let's think historically. One of the phases of greater economic development in the United States, the end of the XNUMXth century, is also the heyday of “robber barons”, thieving barons, a nickname given to industrialists and financiers who had no qualms about dealing with employees, suppliers, competitors and the tax evasion. Its indecent practices did not prevent the country from growing economically.

I consider it very good that, in our days, movements advocate for a business environment marked by honesty. Having ethical guarantees is essential - sustains André Franco Montoro Filho in a well argued article from the book “The culture of transgressions”, edited by ETCO - for capitalism to work. I hope he is right. But I think this is just a form of capitalism, which has not worked at all times or in all places. It is certainly preferable for society as a whole; it must improve the lives of employees, competitors, especially small business owners, and the role of the state. But that does not mean that this is necessarily the dominant tendency of capitalism.

Does this mean that we must resign ourselves to corruption? No way. However, first, we must not confuse their perception with their reality. Today, the good news is that corruption is reported more than under the dictatorship. But that does not mean that the exception regime was more honest - just that it was more difficult to discover and report the misuse of public money. Society is more demanding. It is necessary that both the organs of Justice and the press improve their means of identifying and reporting acts of corruption. But there is also a second aspect that we must point out.

It is often heard today that being ethical adds value. In certain cases, it is true. The company that promotes a recall, the governor who corrects a policy, the journalist who acknowledges an error may suffer a negative impact on his image in the short term, but after that they gain greater confidence from their respective public. They lose at retail, they win at wholesale. Our time values ​​these behaviors, and that is a good thing. Only politicians, companies and newspapers also profit from, shall we say, less orthodox practices. From the examples of good practices, we cannot infer that ethics is always good business. Because it is not always. And, above all, it shouldn't be business.

There is no ethics without the risk of injury and failure. When we preach that ethics is advantageous or even profitable, we forget that it is often not. “Today, to be ethical, sometimes you have to be a hero,” says a character in John LeCarré's novel “The House of Russia”. Not all of us will have the stuff or disposition for heroism. But we must recognize that the reasons for fighting corruption and ensuring fairness in politics, the economy and society are, after all, really ethical. Fighting corruption to improve the economic environment is very good, but it is not enough. Promising young people - businessmen, politicians or journalists - a world that is both profitable and decent is taking the risk of not strengthening their moral fiber. When you have a choice, will you know how to do it? Will they have the courage to face the damage that decency sometimes requires?

Renato Janine Ribeiro is a professor of ethics and political philosophy at the University of São Paulo.


Corrupt: are we all or just the others?

Source: Portal Exame - São Paulo / SP - BLOGS - 09/12/2010

Author: Bolívar Lamounier

A Transparency International survey released today by Folha de S. Paulo shows that less than 6% of Brazilians admit to having practiced small bribes to obtain benefits from public health, education and tax agents. This tiny index places us alongside 23 other countries blessed by the patron saint of the honest.

The problem, according to the same survey, is that 64% of Brazilians think that corruption has increased in the last three years. In other words, there is almost no corruption, although we are almost all corrupt.

Discrepancies like this seem inevitable to me in this type of research - not so much because of their subjective character, but because the interviewee is asked for a somewhat embarrassing "confession" and then invites him to generically vituperate society's ills.

As today is the International Day to Combat Corruption, I will put my wooden spoon on the subject of corruption, reproducing excerpts from a text I wrote in 2007 for a seminar promoted by the ETCO Institute on the “culture of transgression”.

The media have recently been hammering the key to “amoralism” as they have spread across all social strata. That diagnosis sounds right to me.

In fact, millions of citizens do not even identify what is transgressive about certain transgressions; so many others view them with complacency or indifference, and many admit to having committed or to commit them frequently.

I even wonder if Brazilian society has simply jumped from a somewhat amoral pre-modernity (that of Portuguese colonialism) to a “modernity” that is also, only on a much larger scale.

A first point to emphasize is therefore the weakness of our normative order, that is, of our norms and values ​​as beacons for behavior in society. In fact, among us, guidelines and restrictions derived from tradition, family, religion or morals have never been very effective in inhibiting or curbing transgressive behavior.

It cannot be recalled that, in Brazil, Christian churches never exercised an authority over their flocks that was even remotely comparable to that which they displayed in Europe and the United States. I lack the competence to discuss whether the aforementioned weakness occurred due to the scarcity of material resources available to the clergy, the lack of vocations or in fact to the alleged absence of sin below the equator.

Another important point, whether we like it or not, is that corruption (transgressive behavior) has become widespread - this not only among us, everywhere - as the bad side of a currency whose good side is economic modernity: increased mobility social, the multiplication of opportunities, the growing access of the lower income groups to an infinity of goods and services.

In this perspective, this omnipresent transgression today is the secular version of the fall of paradise or, if you prefer, a perverse correlate to modernity. It is associated with the “desecration” of the world and the generalized legitimization of desire in motivating individual behavior.

In the 50s - the Panglossian era of “developmentalism” -, numerous intellectuals and politicians from all over Latin America believed that industrialization and urbanization would proceed without bumps and that the benefits of modernity would soon be distributed among the strata of society.

Two gross prediction errors. But the worst is that they also predicted or at least implicitly assumed that the outcome of such processes would be a well-integrated, peaceful society with substantially lower crime rates.

After half a century, if there is any shared perception among Brazilians, it is certainly that we have been achieved by history. The reality is that all of us, poor and rich, live in a society - as they say - anomic, frayed and shockingly violent.

But it is not fair to throw so much responsibility on the shoulders of sociologists and economists 50 years ago. If they projected a relatively painless trajectory, it was because they could not foresee the effects of four or five decades of industrialization, accelerated demographic growth, massive and highly concentrated urbanization in large metropolitan areas, fifteen years of “forced march” economic growth followed by a quarter of a century of near-stagnation, and three decades (from the early 60s to 1994) of virtually uninterrupted super-inflation.

How could all this have happened without further extending pre-existing poverty and social inequalities? How can we imagine a soft-landing, a smooth reintegration, in a society that has failed so many ruptures and contradictions?

But attention, attention. I definitely do not subscribe to the theory that sees crime as a direct consequence of poverty or income inequalities; or both combined with what I called the “desecration” of the world above. There are other variables at play.

What I am saying is that Brazilian modernization - for the reasons I summarized above -, was tremendously destructive to the social and normative fabric, even admitting its previous weakness in a country of colonial and slave formation.

To all that has been said so far, it is obviously necessary to add the role of the State. In theory, transgression must be controlled by preventive, dissuasive and repressive action by the State. But between the thesis and the reality there is in general a great distance. No state is 100% effective in this mission.

In Brazil, in addition to tolerating or not being able to prevent many harms, the State has directly or indirectly produced as many. In his role of applying laws (law enforcement), he has not been able to control the volume of transgressions, indeed, nor to prevent such behaviors from spreading. And I don't even have to stop at the porosity of the national territory to transgressive networks of extreme danger, such as drug trafficking. Or in the fact that the police bodies themselves, which are materially charged with restraining transgressive actions, are vulnerable to corruption in its numerous forms.

The tax burden and the high proportion of GDP it represents are also worth examining from the perspective of probable “transgressogenic” effects. Nobody is unaware that the current burden sterilizes enterprises and discourages entrepreneurs in all classes, restricts job creation and legitimizes, so to speak, tax evasion.

What about political corruption, clientelism and “state privatization”?

There are those who simply see current political corruption as a "survival" or "natural" extension of that old "patronage" of the countryside and rural areas, driven by ambitions that were generally content with naming the rural teacher or the postal agent.

Yes, of course, that old patronage partly survived. Its preferred habitat is today the periphery of large cities. In fact, when clientelism lost its rural bases, it became squalid as a source of political influence.

What was important in the second half of the 20th century, was that the State had become large as a buyer of goods and services; in this way, numerous positions and functions of ipso facto government have become levers of power and enrichment. The scale of operations has extended remarkably.

With pedestrian “stewardships” and the maintenance of office machines on the floor, and going through the eternal public works contract of the size of highways, ports and airports, it even today includes the contracting of exquisite services, such as direct administration advertising and state-owned companies.

With their keen nose, hundreds of pirates soon qualified to sail these new seas. Knowing the public machine like nobody else, they soon arrived in the archipelago of favors, government purchases, fraudulent bids and “unaccounted resources”.

Schematically, what I meant by the above comment was that, by breaking the barrier of underdevelopment, Brazil also broke what little it had of a normative order, and just started to build institutions and values ​​comparable, in this respect, to those of the more developed societies .

Most likely, the desired reintegration of society will happen - if it will happen - after an extended period of time. For this, higher levels of development will be a necessary, but not sufficient, condition.

Much will depend on the progressive reduction of social inequalities, the supply of opportunities, the strengthening of civilized standards of coexistence, a profound reorientation in the structure and way of acting by the State, and an unrelenting fight against drug trafficking and the resulting crime. .