Recently, Brazilians have received the news that the Brazilian Congress would has softened the rules to combat administrative improbity with concern, when a bill was approved which amended the Administrative Improbity Law. It now recognizes the crime only if agent's intent can be proved, that is, if the conduct was caused by fault, in the action or omission, they would no longer be held responsible. It turns out that such a measure is a massive shot in the fight against corruption, as it fosters the famous cliché "I don’t know!" The public agent's omission becomes an affirmative defense, and it is up to the Prosecution to prove that the intent existed.
However, Brazil has already ratified numerous international conventions on combating corruption in the opposite direction, which only highlights the setback of this new positioning by the Brazilian Congress. Among the international conventions ratified by the country, the following stand out:
1. OECD Anti-Bribery Convention – sanctioned on August 24, 2000 and promulgated by Decree #3,678 on November 30, 2000;
2. United Nations Convention against Corruption – sanctioned on June 15, 2005 and promulgated by Decree #5,687 on January 31, 2006;
3. United Nations Convention against Transnational Organized Crime – sanctioned on January 29, 2004 and promulgated by Decree #5,015 on March 12, 2004; and
4. Inter-American Convention against Corruption – sanctioned on March 29, 1996 and promulgated by Decree #4,410 on October 7, 2002.
1.1. ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT (OECD) ANTI-BRIBERY CONVENTION
The OECD Anti-Bribery Convention establishes rules to criminalize the bribery of foreign public officials in international business transactions and provides for many related measures to increase the effectiveness of the program. As a result, Brazil sanctioned Law #10,467 of June 11, 2002, which added (i) Article 337-B to the Brazilian Penal Code, which defined active corruption in an international commercial transaction as a crime, (ii) Article 337-C in the Brazilian Penal Code, which defined influence peddling in an international commercial transaction as a crime and (iii) Article 337-D in the Brazilian Penal Code, which defined the concept of foreign public officials, following the trend initiated with the US anti-corruption law, the Foreign Corrupt Practices Act (FCPA).
1.2. UNITED NATIONS CONVENTION AGAINST CORRUPTION
The United Nations Convention against Corruption covers five main areas of action: (i) preventive measures, (ii) criminalization and law enforcement, (iii) international cooperation, (iv) asset recovery and technical assistance, and (v) information exchange. A relevant points of this Convention is the reference to codes of conduct for public officials, in order to establish rules of conduct and disciplinary measures to be applied in case of violations of conduct, especially those regarding acts of bribery. On the other hand, the United Nations Convention against Corruption focuses not only on the public sector, but also on the private , aiming to improve accounting standards and transparency.
1.3. UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
The United Nations Convention against Transnational Organized Crime has become the main international instrument in the fight against such a crime. Relevant initiatives have been incorporated such as criminalizing participation in organized criminal groups, mutual legal assistance and international police cooperation, creation of domestic crimes (such as money laundering, corruption, obstruction of justice), standards on asset confiscation and seizure , the adoption of new structures for extradition, technical assistance, and training to improve the capacity of national authorities.
1.4. INTER-AMERICAN CONVENTION AGAINST CORRUPTION
The Inter-American Convention against Corruption emphasized the need for States to cooperate in the fight against corruption, given its international reach, suggesting the adoption of mechanisms to detect, punish, and eradicate corruption in signatory Countries.
Therefore, there are relevant general principles brought by these conventions, but the lack of an Anti-Corruption Agency and of more effective laws in the definition and punishability of crimes prevents a more effective fight against the evil of corruption. The Brazilian Constitution has many fundamental rights which have been extensively interpreted and which make punishing the corrupt and corrupter very difficult in Brazil.