The OECD Working Group on Bribery reaffirms the importance of the independence of prosecutors and judges and is concerned that Brazil’s achievements in fighting corruption may be seriously jeopardised by recent legislative developments.
On 26 June 2019, the Brazilian Senate adopted a Bill which, in addition to some positive developments in tackling corruption, introduces an overly broad definition of the offence of abuse of authority by judges and prosecutors, characterised by some subjective elements. The Working Group is seriously concerned that, if approved, this broad definition could serve as a mechanism for corrupt individuals to unfairly attack justice-seeking prosecutors and judges for appropriately doing their jobs and have a significant chilling effect on anti-corruption prosecutions and investigations in Brazil and beyond. It could also affect Brazil’s ability to fully meet its obligations under the Anti-Bribery Convention, in particular under Article 5 on independent investigations and prosecutions.
The Working Group had already voiced similar concerns on the Bill in the past. Some of its current provisions do, however, appear to address a number of Working Group recommendations made to Brazil during its Phase 3 evaluation in October 2014. In particular, it would increase the sanctions and extend the limitation period to allow more time to prosecute and sanction individuals in foreign bribery cases. By contrast, other provisions are vague and undefined. For example, certain provisions state that the offence is committed for “mere whim or personal satisfaction” without any definition. This is overly subjective and could lead to abuse in its application.
In October 2016, the Working Group commended Brazil for its progress in implementing the recommendations it received during its Phase 3 evaluation in October 2014. Of the Working Group’s 39 recommendations to Brazil, 18 had been fully implemented and 13 partially implemented. The Group encouraged Brazil to continue its efforts to implement the remaining 8 recommendations. Since its Phase 3 evaluation, Brazil has successfully investigated, prosecuted and sanctioned foreign bribery offences in prominent multi-jurisdictional cases.
The Working Group invites the Brazilian authorities to address the identified shortcomings in the ongoing legislative process, keeping in mind the provisions of Article 5 of the Convention.
While recognising the exemplary work already accomplished by Brazil, and fully respecting the Brazilian legislative process, the Working Group strongly encourages Brazil to continue its positive trend of reforms while preserving its prosecutors and judges’ full capacity to investigate and prosecute foreign bribery. Brazil will provide a written report to the Working Group on the status of the Bill in October 2019.