巴西反腐举措

Public Anti-Corruption Initiatives

• Legislation: Corruption is addressed in the Penal Code and in specific federal laws. The Penal Code contains provisions establishing penalties for misconduct, such as embezzlement of public funds, public graft, acceptance of bribes, breach of public duty, offering bribes, bribery in international business transactions, and violation of the confidentiality of an offer tendered in competitive bidding. This legal framework is assessed as 'very strong' by Global Integrity 2006. The legal framework has allowed Brazil to sign and ratify four important international conventions: the OECD Anti-Bribery Convention, the United Nations Convention against Corruption (UNCAC), the OAS Inter-American Convention Against Corruption and the United Nations Convention against Transnational Organized Crime. The framework is continually being evaluated by the Follow-Up Mechanism of the OAS Convention. Access the Lexadin World Law Guide for a collection of legislation in Brazil.

• Government Strategies: After a series of scandals involving the Legislative and the Executive during the first two years of his first term, President Lula da Silva released a package of measures aimed at curbing corruption, with an emphasis on high level corruption in the civil service. The package consists of a bill and four decrees addressing the ethics of government entities and seeking to combat the culture of impunity in the Federal administration. A comptroller's office was created in each ministry to supervise and ensure complete transparency of all contracts, deals and expenses. By December 2008 there were 68 anti-corruption bills awaiting debates and voting in the congress and senate.

• Anti-Corruption Agency: Brazil does not have a specialised independent anti-corruption bureau. Brazil's high level of decentralisation has by many observers been reported as one of the main obstacles for the implementation of solid anti-corruption initiatives by the federal government. Several agencies scattered between Brazil's 27 states and 5,651 municipalities have mandates to deal with corruption. Implementation and enforcement deficits of the legal and institutional framework are cited as the main challenges facing the fight against corruption in Brazil.

• Comptroller General: The Controladoria-Geral da União (CGU), created in 2003, is the central body of internal control of the Federal executive branch. It undertakes inspections and audits of municipalities and states. To promote transparency and prevent corruption, it also carries out different awareness raising campaigns aimed at the private sector. The CGU is often cited as a relatively efficient agency, which manages to carry out inspections despite resource constraints and questionable independence from political influence. Several initiatives formalised as decrees (not requiring legislative approval) as well as new laws (submitted to Congress for discussion and approval) have been developed by the CGU.

• Council for Public Transparency and the Fight against Corruption: The Conselho da Transparência is a forum established within the CGU that includes representatives from both civil society and state bodies, and serves as an advisory entity with no executive or enforcement power. It cannot impose reform programmes on ministries, which has led Transparency International to question the impact of the initiative. In 2006, a bill designed to regulate conflicts of interest and post-public employment at the federal executive level, was drafted by the CGU and the Council for Transparency and submitted to congress. By September 2009, the bill had still not passed.

• Coordination of Public Anti-Corruption Policies: In 2003, an agency for the National Strategy to Fight Corruption and Money Laundering (ENCCLA) was set up with the objective of coordinating different bodies involved in the development of policies to fight money laundering. In 2006, combating corruption was added to the ENCCLA goals, which today brings together 57 different bodies including law enforcement authorities, the judiciary and relevant ministries and agencies. Each year new goals are developed and responsibilities are coordinated between the bodies in order to meet these goals. Another effort to prevent corruption is the National Programme of Capacity Building and Training for the Combating of Money Laundering (PNLD), which has been developed to provide training to public officials and other entities involved in combating money laundering and corruption. It is noted by an OECD report that although both the ENCCLA and the PNLD appear to be efficient initiatives to raise awareness and provide training on corruption issues, neither of them have so far focused on foreign bribery. However, especially the ENCCLA has been accredited as an important forum to promote the coordination of action to combat corruption in all its forms.

• Supreme Audit Institution: The Tribunal de Contas da União (TCU) is tasked with controlling the administration by performing accounting, financial, budgetary, revenue-related and operational studies as to the legality, legitimacy and cost-effectiveness of public funds. States and municipalities are audited by the state-level Court of Accounts. In the states, it is generally held that the Court of Accounts is not politically independent, and although some observers also question the independence of the federal TCU, it is generally agreed that the federal institution is more active and influential than the state Courts of Accounts.

• Ombudsman: Brazil does not have an independent Ombudsman institution. Instead, so-called Ouvidores, that is 'hearers', working in each ministry, receive complaints, transmit them to appropriate offices, follow up on these complaints and respond to them. The Ouvidores are appointed by the corresponding minister and are neither independent nor protected from political interference. Ouvidores cannot initiate investigations. They may only communicate complaints between the ministries or offices in question.

• E-Governance: Public services are increasingly available online through the Portal for Services and Information of the Government. This is an attempt to make public services more efficient and remove some of the possibilities for extracting bribes for public services. The Portal has a commercial section with news and information for companies. The government has also established the Transparency Portal, where information on budgets, spending and transparency initiatives can be found.

• Public Procurement: Public procurement is regulated by Law 8666/93. The law requires open competitive process for purchases by government entities and parastatal companies. International bidders can participate and price should be the decisive factor in choosing suppliers; however procurement of telecommunications and information technology is excluded from this rule, as local products are allowed to receive preferential treatment. Public tenders are widely advertised and the government must publish the results of public procurement. The Portal for Services and Information of the Government contains a section on public tenders (in Portuguese), where public tenders are published and bids can be made online. According to the US Commercial Service 2009, 75% of the bids were made electronically in 2008. Unsuccessful bidders have the possibility of contesting procurement decisions. Companies guilty of corruption are blacklisted; however in practice the number of blacklisted companies is very small, due to the difficulty of proving corruption.

• Whistle-Blowing: Various mechanisms are available to citizens and companies to report on criminal offences. An instrument known as disque-denúncia (hotline) has been developed for private citizens to which criminal offences and corruption can be reported. Corruption in the federal government can be reported to the CGU, which has a whistleblower mechanism on its website. Also the Federal Prosecutor's Office has an online complaint mechanism on its website. Despite these initiatives, several business surveys indicate that many employees will rarely report illegal practices if they are still employed by the company, given the risk of retaliation. Also representatives of various NGOs have expressed the view that whistle-blowing has little chance of prospering in Brazil, since whistleblowers seldom trust the enforcement of the laws in place to protect them.

• General Comments on the Public Anti-Corruption Initiatives: Brazil is often cited for its strong legal framework aimed at curbing corruption, and the country is occasionally used as a role model when establishing legal anti-corruption frameworks in developing countries. Nevertheless, several observers agree that although the laws are in place, the institutions tasked with curbing corruption face an almost insurmountable task due to the pervasiveness of corruption in the political system. Brazil's decentralised federal structure, in which local authorities hold wide discretionary powers, makes fighting corruption difficult to coordinate. Several observers point to the inefficiencies of anti-corruption institutions operating at local levels. Although anti-corruption is officially a priority of the Lula government, the federal government and the Congress struggle with keeping clear of corruption allegations. Cases involving high-level politicians keep surfacing, which threatens to undermine public trust in the political system. Consequently, it is fair to conclude that the public anti-corruption initiatives in Brazil are formally strong and well-developed, but that the fight against corruption faces serious obstacles in terms of implementation and lack of political support.