June 27, 2023
The Anticorruption Statute enforcement has been effective for almost 10 years, but is still going through a maturing process, delayed, perhaps, by the lack of precedents.
As it approaches its 10-year mark, the Anticorruption Statute (the Brazilian FCPA/UK Bribery Act, Statute #12,846 of 2013) was expected to have its provisions related to the statute of limitations properly settled, especially by the Office of the Comptroller General (“CGU” in the Portuguese acronym), to which the legislation conferred a central role in coordinating its application. However, divergences regarding Article 25 of the Statute persist and need to be solved by Brazilian courts.
The first divergence is with respect to the beginning of the limitations period. It is clear from the head of Article 25 that the legislators established a specific rule for violations that last over a certain period of time: the limitations period begins to run on the date when the violation ceases, rather than on the date on which the violation becomes known by the authorities (which is the general rule for other situations). However, CGU understands that this specific rule is only applicable when the violation is known prior to its cessation.
The wording of the provision leaves no room for CGU's acknowledged “extensive interpretation”, which actually violates the statutory principles that must be observed when applying administrative sanctions. It is not even reasonable to understand - as CGU does - that the government has authority to arbitrarily choose the most convenient beginning of the limitations period, with the intention of gaining more time. After all, the purpose of the statute of limitations is to penalize those who fail to exercise their rights within specific periods set by legislation, in order to uphold legal certainty.
CGU’s interpretation is also grounded on a mistaken premise (the violations that last over time are inherently more severe than those that are instantaneous, and therefore warrants “more severe treatment”). In Criminal Law, continuing crimes do not carry more severe penalties when compared to instantaneous crimes. In fact, the penalties are even more beneficial since they are not cumulatively applied.
Furthermore, violations that last over time are normally easier to be identified by the authorities. For this reason, the rule of the beginning of the limitations period being based on the ceasing of the violation (rather than on the knowledge of the violation) is justified, considering it intends to protect the individuals from the government inertia. A similar model is applied in Brazilian Criminal Law.
The second divergence is with respect to the interruption of the statute of limitations. The sole paragraph of Article 25 provides that the interruption will take place with the filing of a “procedure aiming to investigate the offense”. CGU understands that only the administrative procedure governed by the Anticorruption Statute (“PAR” in the Portuguese acronym) may interrupt the statute of limitations.
However, PAR is defined as the “procedure aiming to investigate the liability of a legal entity” (Article 8). In the sole paragraph of Article 25, legislators could have explicitly used this expression if their intention was to refer to PAR, as they did in Articles 10 and 11, but instead they opted to use the expression "procedure aiming to investigate the offense" (and not the liability). Legislators did so precisely because of the difference between these two types of procedures: the procedure aiming to investigate the offense focuses on the facts, while the procedure aiming to investigate the liability is concerned with the outcome of PAR, with the imposition or not of administrative sanctions to the legal entity.
The processing of Bill #6,826/2010 (which resulted latter in the Anticorruption Statute) corroborates this conclusion. According to the original text, the statute of limitations would be interrupted by “any act aiming to investigate the offense”. Representative Onyx Lorenzoni then proposed an amendment to modify the provision, suggesting that the interruption could take place with the act of filing “a procedure aiming to investigate the liability of a legal entity”. However, this proposal was not approved by the rapporteur in the House of Representatives. Therefore, it seems that the legislators' intention was indeed to link the interruption of the statute of limitations to the beginning of the government's investigative activities, filing an administrative procedure with this purpose (whether it corresponds directly to PAR or not).
In conclusion, although it seems clear that the best interpretation of the statute of limitations rules foreseen in the Anticorruption Statute is not the one given by CGU, the fact is that, despite being close to completing 10 years, the Statute’s enforcement is still going through a maturing process, which may have been delayed due to the lack of precedents regarding its most controversial provisions. Therefore, it is crucial for these discussions to be brought before the Brazilian courts, allowing for clear and objective guidelines to be established. This will prevent arbitrary and unlawful punishments based solely on the subjective - and often flawed - sense of justice of the government.
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