On October 19, 2023, the OECD Working Group on Bribery (WGB) published the Phase 4 Report on Brazil’s implementation with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and raised harsh criticism and concerns about impunity in cases of transnational corruption in the country, which did not have a final resolution or were annulled by the Judiciary, especially by the Supreme Court.
The report brought specific cases in which there was annulment of evidence, such as the evidence of the Odebrecht leniency agreement, and criticized the Brazilian Supreme Court for taking a position and thus deciding against the possibility of the competent authorities, including the Office of the Comptroller General (CGU), the Federal Prosecution Service (MPF) and the Department of Federal Police (DPF), to promote ties and informal contacts with foreign counterparts and such practice. According to the WGB, it would be crucial and internationally accepted to maintain informal contacts, given that the Abuse of Authority Law and recent disciplinary actions (civil and criminal) negatively affect the possibility of investigations in cases of corruption.
The lead examiners recommend that Brazil take all necessary steps, as a matter of priority, to ensure that the factors prohibited by Article 5 of the Convention may, in no circumstances, influence the investigation, prosecution and resolution of foreign bribery cases or jeopardize in any other way the independence of prosecutors including through: (i) putting safeguards in place to protect the Office of the Prosecutor General from politicization or the perception of politicization; and (ii) reinforcing guarantees against possible political bias by law enforcement agents as well as against the possible arbitrary use of disciplinary or other accountability measures as a means of retaliation against prosecutors involved in sensitive anti-corruption and related enforcement actions. The lead examiners also recommend that the Working Group follow up on whether sufficient measures are in place to prevent political interference in the Federal Police and other investigative agencies.
However, while any and all international recommendations are necessary, the OECD has failed to adequately review domestic legislation, which sets mandatory parameters for international cooperation and the sharing of evidence where necessary.
According to the 2014 Manual on International Legal Cooperation in Criminal Matters, made available on the website of the Federal Government of Brazil[1], it identifies that, based on the United Nations Convention against Corruption adopted by the United Nations General Assembly on October 31, 2003 and signed by the Brazil on December 9, 2003, in the city of Mérida, Mexico, and approved by the National Congress through Legislative Decree No. 348, of May 18, 2005 and, through Decree No. 5687, of January 31, 2006, it is necessary that international legal cooperation is not informal. On the contrary, it must be established in accordance with its internal legal system (article 43).
Therefore, the Department of Justice was designated to play the role of Central Authority for international legal cooperation, mission accomplished through the Department of Asset Recovery and International Legal Cooperation (DRCI) and the Department of Foreigners (DEEST), under the terms of Decree No. 6061/2007.
In other words, it is impossible for Prosecutors, Police Chefs and other Police or Investigative Authorities to exercise international cooperation measures in isolation, requiring intermediary through the Department of Justice, which did not happen adequately in the case of Odebrecht and other corruption investigations in international level in Brazil.
Let us see that Brazilian legislation managed to cover the fundamental guarantee of each and every citizen, Brazilian or foreign, based on the principles of human rights, and such laws guarantee the country itself the fairness of all criminal proceedings. Despite the mandatory provision of jurisdiction for the investigation of crimes, it is necessary to comply with national standards to allow those under investigation to carry out a lawful investigation. The opposite of this will inevitably lead to the nullity of judicial decisions, as occurred in the Lava Jato operation.
Therefore, it is necessary to remove the political aspect of cases of this magnitude, whose scandals of annulment of decisions occur all over the world.
To be able to regain international trust, Brazil and OECD member countries need to place trust in Brazilian national institutions. For such cases, Brazilian laws appear to be more complete and adequate to combat corruption and not provide opportunities for impunity. In fact, legal operators are responsible for technical and procedural knowledge of the rules, in order to avoid the aforementioned nullities.
[1] https://www.gov.br/mj/pt-br/assuntos/sua-protecao/lavagem-de-dinheiro/drci/publicacoes/manuais/cooperacao-juridica-internacional-em-materia-penal/cartilha-penal-09-10-14-1.pdf