COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP …
MECHANISM FOR FOLLOW-UP ON THE SG/MESICIC/doc.168/05 rev. 4
IMPLEMENTATION OF THE INTER-AMERICAN 31 March 2006
CONVENTION AGAINST CORRUPTION Original: Portuguese
Ninth Meeting of the Committee of Experts
March 27 – April 1, 2006
Washington, DC.
Español- Português
Federative Republic of Brazil
FINAL REPORT
(Adopted at the March 31, 2006 plenary session)
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COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON THE
IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION
FINAL REPORT ON IMPLEMENTATION IN THE
Federative Republic of Brazil OF THE CONVENTION PROVISIONS SELECTED FOR REVIEW IN THE FRAMEWORK OF THE FIRST ROUND[1]
INTRODUCTION
1. Legal-institutional system [2]
The Federative Republic of Brazil, formed by the indivisible union of the states, the municipalities and the Federal District, is a democratic State under the rule of law, founded upon the principles of sovereignty, citizenry, the dignity of the human person, the social values of work and free enterprise, and political pluralism.
Popular sovereignty is exercised through universal suffrage and by direct and secret ballot, with each person’s vote carrying equal weight. When the law so prescribes, popular sovereignty is also exercised by plebiscite, referendum and popular initiative.[3]
Under Article 2 of the Federal Constitution of Brazil, the Legislative, Executive and Judicial are the three branches of government, all three acting in concert with one another but each independent of the other two and with its own principal function, as well as other different functions spelled out in the Constitution.
Executive power is exercised by the President of the Republic, assisted by the ministers of State. The President and the Vice President of the Republic are elected simultaneously, by an absolute majority. The president serves four years in office, and may be re-elected to another term only once.
Under the presidential system, the President of the Republic serves as chief of State and head of government. As chief of State, the President represents Federative Republic of Brazil in its relations with foreign States (Article 84, subparagraphs VII and VIII) and is the embodiment of the State’s internal unity. The President’s chief function as head of government is that of directing the federal government. The President’s functions include those of instituting the legislative process in the manner and in the cases set forth in the Constitution; approving, promulgating and ordering the publication of laws and issuing executive orders and regulations for faithful enforcement of the law.[4]
Federal legislative power is exercised by the bicameral body that is the National Congress, which has two houses: the Chamber of Deputies and the Federal Senate. The Chamber of Deputies is composed of representatives of the people, elected by the system of proportional representation in every state, territory and the Federal District. An individual elected to a seat in the Chamber of Deputies will serve a four-year term. The Federal Senate is composed of representatives of the states and of the Federal District. Each of those units is represented by three senators, who serve eight-year terms. In those eight-year periods, one-third of the representation from each state and the Federal District will be renewed at the first four-year mark, while the other two thirds will be renewed after the next four years.
The Constitution guarantees the judicial branch’s functional, administrative and financial autonomy. It further provides that its members enjoy life tenure, may not be removed from office (except under certain circumstances), and may not have their salaries cut.[5]
The Public Prosecution is a part of the executive branch, notwithstanding the functional, administrative and financial autonomy granted to it by the Constitution.[6] It is a permanent institution, essential to the jurisdictional function of the State.[7] Its duty is to defend the juridical order, the democratic system and inalienable social and individual interests. The governing principles of the Public Prosecution are unity, indivisibility and functional independence, and its functional and administrative autonomy is ensured.
Under Articles 1 and 18 of the Federal Constitution, the political-administrative structure of the Brazilian State is to serve the basic purposes of national unity and decentralization among its autonomous units, namely the Union, the states, the Federal District and the municipalities.
Federalism is a system involving both political participation and autonomy, which is the federated units’ capacity for self-organization and self-legislation, self-government and self-administration. It presupposes authorities and the constitutional separation of powers, with a view to enabling the units of the Federation to engage in and develop regulatory activities.
The legislative authorities of the Union, states, municipalities and the Federal District are enumerated in the Constitution. While the Union has certain exclusive powers, it does have other powers that it shares in common with, concurrent with, and/or ancillary to the powers of the Federation’s other units.
The structure of the states in the Federation and the municipalities is determined in their respective state constitutions and municipal organic laws and through enactment of state laws and municipal ordinances, all of which must respect the principles and authorities set forth in the Federal Constitution. Even the Federal District is structured on the basis of its own Organic Law.
Self-government by the states of the Union means that governors, deputy governors[8] and state deputies are elected by direct vote, to four-year terms. The state legislatures are unicameral bodies in which parliamentarians convene for the state’s legislative assembly. The municipalities elect their respective mayors and deputy mayors by direct ballot; elections for town/city council members are held every four years. The Federal District elects its Governor and Deputy Governor and the District deputies. The latter are the members of the local legislative body. All these officials serve four-year terms.
The states of the Union and the municipalities administer their own affairs by exercising the administrative, legislative, and taxation authorities that the Federal Constitution confers upon them. The Federal District has the same legislative authorities that states and municipalities enjoy under the Constitution.
2. Ratification of the Convention and adherence to the Mechanism
According to the OAS General Secretariat’s official records, the Federative Republic of Brazil ratified the Inter-American Convention against Corruption on July 10, 2002, and deposited the corresponding instrument of ratification on July 24 of that year.[9]
In addition, the Federative Republic of Brazil signed the Declaration on the Follow-up Mechanism for the Implementation of the Inter-American Convention against Corruption on August 9, 2002.
I. SUMMARY OF THE INFORMATION RECEIVED
1. Response from Brazil
The Committee would like to acknowledge the cooperation received from Brazil throughout the review process, especially the cooperation from the Ministry of Justice, as evidenced by, inter alia, its response to the questionnaire and its readiness to explain or elaborate upon its content. When it presented its response, Brazil also included the laws and documents it deemed relevant, which are listed as an appendix to this report.
For its review, the Committee examined the information sent by Brazil as of August 20, 2005, as well as information that the Secretariat and members of the review subgroup had requested in order to comply with their duties as spelled out in the Committee’s Rules of Procedure and Other Provisions.
2. Document presented by civil society
Under the Rules of Procedure and within the time frame the Committee set during the course of its Sixth Regular Meeting, the Committee also received the document that the Associação Brasileira de Jornalismo Investigativo (ABRAJI) [Brazilian Association of Investigative Journalism] prepared in conjunction with “Transparency International”, in its capacity as a civil society organization.[10]
II. REVIEW OF THE IMPLEMENTATION OF THE SELECTED PROVISIONS BY BRAZIL
1. A. CONSIDERATIONS ON THE SCOPE OF REVIEW IN THE CASE OF BRAZIL
A few comments should be made with respect to the review contained in this report as it relates to the implementation in Brazil of the selected provisions of the Convention.
As noted earlier in the “description of the legal and institutional framework”, the Federative Republic of Brazil is a federal state formed by “the indissoluble union of States, Municipalities and the Federal District” (Article 1 of the federal Constitution).
With respect to the scope of inter-American treaties and conventions ratified by Brazil, we may say, on the basis of constitutional provisions[11] and jurisprudence[12], that they also apply to the States, the municipalities and the Federal District.
Thus, Brazil's response contains information in some cases that goes beyond the federal level to include the state and municipal levels. However, the review in this report will focus on the federal government and, where appropriate, will also make reference to information received with respect to the state and municipal levels.
The Committee observes that the majority of Federal legislation, with respect to topics covered by the Convention, is equally applicable to States and Municipalities.
Bearing in mind the foregoing, the committee recommends that Brazil consider working with the state and municipal authorities to develop cooperation mechanisms in order to expand information on Convention-related issues within their respective jurisdictions and to provide technical assistance for effective implementation of the Convention. (See recommendation in part A of Chapter III of this report).
B. REVIEW OF THE IMPLEMENTATION BY THE BRAZILIAN FEDERAL GOVERNMENT OF THE SELECTED PROVISIONS
1. STANDARDS OF CONDUCT AND MECHANISMS TO ENFORCE COMPLIANCE (ARTICLE III, 1 AND 2 OF THE CONVENTION)
1. CONFLICTS OF INTEREST
1. Existence of provisions in the legal framework and/or other measures and enforcement mechanisms
At the federal level, Brazil has a number of provisions establishing standards of conduct on conflicts of interest, applicable to public agents[13] in the three branches of Brazil’s federal government. The following are among the most important of these provisions:
- The Federal Constitution, Article 37, which establishes: a) the principles of legality, the restriction on making decisions based on personal reasons [impersonalidade], morality, disclosure and efficiency as basic principles of direct and indirect public administration in the three branches of government of the Union, the states, the Federal District and the municipalities;[14] b) the rule prohibiting the holding of more than one remunerated position in government (Article 37, XVI),[15] with certain exceptions;[16] and c) general rules to qualify for offices, positions and functions in government (Article 37, paragraphs I-V).[17] [18] Moreover, it establishes as a condition for eligibility for public office the full exercise of political rights. (Article 14, paragraph 3, II).
- Supplementary Law No. 64 of May 18, 1990, which establishes the conditions for ineligibility of political agents.
- Law 8,429 of June 2, 1992 (Government (Administrative) Impropriety Act)[19], Article 9 of which lists the following as acts of government impropriety involving illicit enrichment: a) “To accept, either for oneself or someone else, monies, personal or real property, or any kind of direct or indirect economic advantage, in the form of a commission, percentage, gratuity or gift from any party that has a direct or indirect interest that can be accomplished or furthered by an act or omission of the civil servant in performing his or her functions” (Article 9, I); b) “To accept any employ or commission or engage in consulting or advisory work for any natural person or legal entity that has an interest that can be achieved or furthered by an act or omission committed in the performance of a civil servant’s functions” (Article 9, VIII); c) “To accept any economic advantages in exchange for arranging the use or investment of any public monies” (Article 9, IX). Likewise, under Article 11, “revealing or allowing any third party to gain access to information regarding any political or economic measure that can affect the price of a commodity, good or service, before that measure is officially announced, shall constitute government misconduct in violation of the principles of public administration” (Article 11, VII).
- Law 8,666 of June 21, 1993 (Law on Government Tendering and Contracting)[20] provides that no employee or executive of a contracting organ or entity or the entity conducting the bidding process may participate either directly or indirectly in that process, in the construction work or service, or in supplying the needed goods (Article 9). It also bans preferential treatment vis-à-vis the parties tendering offers or submitting bids (Article 3).
- Provisions that apply to the Executive Branch include the following:
- Under Law 8,112 of December 12, 1990 (Federal Public Servants Statute),[21], [22] in order to qualify for a position in government a person must be fully entitled to exercise his or her political rights (Article 5o, II). Article 116 of the Statute spells out the duties of public servants. Article 117 establishes the prohibitions to which public servants are subject, salient among them the following: a) “Keeping one’s spouse, domestic partner or relative, up to the second degree of kinship, under one’s immediate supervision, in a position or post of trust,” (Article 117, VIII);[23] b) “Participating in the management or administration of a private enterprise[24], [25] (...) and engaging in business, except as a shareholder, stockholder or partner” (Article 117, X);[26] c) “acting as a broker or intermediary vis-à-vis government offices” (Article 117, XI);[27] and c) “accepting any gratuity, commission, gift or advantage of any kind by reason of one’s authority and/or functions” (Article 117, XII).[28] Articles 118, 119 and 120 are specific provisions concerning the ban against holding more than one remunerated position in government.[29]
- Law 8,027 of April 12, 1990 (Code of Conduct of Federal Public Servants)[30] establishes other prohibitions over and above those found in the Federal Public Servants Statute, such as: a) “Using or allowing third parties to use information to which one is privy by virtue of one’s office, or the prestige or influence of one’s office, in order to achieve, either directly or indirectly, some advantage or gain for oneself or for third parties, to the detriment of the public office” (Article 5, I); b) “Engaging in any activity that is incompatible with the public office or function, or with the work schedule” (Article 5, V).
- The Code of Professional Ethics of Public Civil Servants in the Federal Executive Branch of Government,[31] which spells out principles and moral values of federal public service and the prohibitions on public servants in this branch of government, salient among them the following: a) using their position or function, facilities, friendships, time, position and influence to gain any advantage, either for themselves or others (Section III, XV, a); b) allowing personal interests to interfere with their dealings with the public or their colleagues (Section III, XV, f); c) seeking, requesting, lobbying for, suggesting or receiving any type of financial assistance, bonus or advantage of any kind, either for themselves or for another person and in exchange for influencing another public servant (Section III, XV, g); d) using privileged information obtained in the course of government service, either for their own benefit or to benefit another (Section III, XV, m).
- The Code of Conduct for High-ranking Federal Government Officials,[32], [33] whose objectives include that of setting forth basic rules on conflicts of public and private interests and restrictions on the professional activities of high-ranking officials once they have left public service (Article 1, IV), and minimizing the possibility of a conflict between the private interests and the office of high-ranking officials in the federal government (Article 1, V). The following are some of the most important provisions relating to conflicts of interest:[34] a) the obligation to report to the Public Ethics Commission,[35] any asset management or property management transactions that might be affected by some government decision or policy (Article 5); b) the obligation to disclose any shares or stock held in enterprises that do business with the government (Article 6); c) a prohibition against receiving a salary or any other remuneration from a private source in violation of the law, and a prohibition against accepting gifts (Article 9),[36] travel, hospitality or any other favors from private individuals (Article 7); d) the obligation to report to the Public Ethics Commission any offers of future employment or business, regardless of whether those offers are accepted; e) the rule that stipulates that for a period of four months (quarantine)[37] following their departure from public service, high-ranking government officials shall not engage in any activity incompatible with their previously held position (Articles 14 and 15)[38].
- The Code of Ethical Conduct of Public Agents Serving in the Office of the President and the Office of the Vice President of the Republic,[39], [40] one of its purposes being to prevent situations that could pose conflicts between a public servant’s private interests and public functions (Article 2, IV). It contains prohibitions similar to those in the Code of Conduct for High-ranking Federal Government Officials[41] and provides that public servants are to supply the Ethics Commission for Public Agents Serving in the Office of the President and the Office of the Vice President of the Republic[42] with information relating to: a) any assets or income that could be in conflict with the public interest[43] (Article 5); b) shares or stocks held in any private enterprise that has some type of relationship with an organ or entity in any branch of government (Article 9); c) offers of future employment or business in the private sector, regardless of whether those offers are accepted (Article 13).
- Law 10,871 of May 20, 2004, which applies to public servants in active service in regulatory agencies. It makes provision for the same duties and prohibitions stipulated in Law No. 8,112, of December 11, 1990, and adds that public servants working in regulatory agencies shall not divulge any information to which they are privy by virtue of their position or function, regarding the operations and services rendered by the regulated institutions (Article 23.I). It also prohibits a public servant working in a regulatory agency from providing services, even occasionally, to any enterprise whose business is controlled or audited by said regulatory agency (Article 23.II.a), from engaging in any other professional activity, including operational management of a business, and from holding leadership positions in political parties (Article 23.II.c).[44]
- Provisions that apply to the Legislative Branch, such as the following:
- The Federal Constitution, Articles 54 and 55 of which establish the following prohibitions on senators and deputies, under penalty of loss of office: a) entering into or remaining in a contract with a public legal entity, autonomous government agency, public company, mixed-capital company or public utility company, unless the contract is executed in accordance with uniform clauses; b) accepting or exercising any remunerated position, function or employment, including those from which they may be dismissed without cause in the entities mentioned in the preceding subparagraph; c) owning, controlling or directing a company that in any way benefits by a contract with a legal entity under public law, or discharging some remunerated service therein; d) holding an office or function from which they may be dismissed without cause, in the entities mentioned in subparagraph I.a; e) serving as attorney in a case in which any of the entities referred to in subparagraph I.a has a stake; and f) holding more than one public elective position or office at the same time.[45]
- The Federal Senate’s Code of Ethics and Parliamentary Decorum (Resolution No. 20, 1993); under Article 4 of which, a senator, his or her spouse or domestic partner, or any legal entity controlled by said senator, is prohibited from entering into a contract with any government-controlled financial institution (Article 4, I). A senator is also prohibited from directing or managing any broadcasting business, agency or communications medium (Article 4, II). Moreover, a senator must, a) upon taking office or on being appointed to a permanent or temporary Senate committee, file a declaration of current or past economic or professional activities (Article 6, III); and b) while in office, serving on a committee or in plenary and once examination begins of an issue that has any specific and direct bearing upon assets owned by the senator, file a declaration of interest wherein, based on the senator’s own judgment, he recuses himself from any role in the discussion of that issue and the vote taken thereon, or explains the reasons why, in his judgment, he considers his participation in the discussion and voting to be proper (Article 6, IV).
- The Code of Ethics and Parliamentary Decorum of the Chamber of Deputies (Resolution No. 25, 2001), which establishes obligations over and above those set forth in the Constitution as regards deputies. One of these obligations stipulates that while in office a deputy must, when serving on a committee or in the plenary, file a declaration with either the officers of the Chamber or the committee, as appropriate, declaring his ineligibility to vote when the committee or the plenary takes up an issue that has a direct and specific bearing upon the deputy’s own property holdings (Article 18, III).[46]
- Provisions that apply to the Judicial Branch, prominent among them the following:
- The Federal Constitution, Article 93 of which spells out the requirements to be admitted to the bench[47] and for magistrates’ promotion.[48]
- Supplementary Law No. 35 of March 14, 1979 (Organic Law of the Judiciary), which spells out magistrates’ duties and restrictions, including the following: a) the duty to obey and enforce the law and official orders, with independence, composure and accuracy (Article 35); b) a ban against engaging in commerce or participating in any business partnership, even a mixed-capital company, except as a shareholder or stockholder (Article 36, I); c) a restriction against holding an executive or technical position in civil society, an association or foundation, regardless of its nature or purpose, the only exception being unpaid positions in professional associations (Article 36, II).
- The Penal Procedure Code[49] and the Civil Procedure Code,[50] which spell out the grounds for impediment and recusal in the judiciary.
- Resolution No. 07, passed by the National Council of Justice on October 18, 2005, which prohibits nepotism in the Judicial Branch.
Brazil also has mechanisms to enforce compliance with these standards of conduct, including the following:
- The clauses of the Constitution that guarantee every citizen his right to file suit [ação popular] seeking nullification of any act inimical to administrative morality. Unless bad faith is shown, the party bringing suit shall not be liable for court costs or the burden of loss of suit (Article 5, LXXIII).
- The clauses of the Constitution that provide that acts constituting administrative corruption shall result in suspension of political rights, loss of public office, freezing of personal property and reimbursement of amounts owed to the public coffers, notwithstanding any criminal action that may be called for (Article 37, paragraph 4).
- Law No. 8,429 (Government (Administrative) Impropriety Act), of June 3, 1992, establishes penalties for a public servants guilty of illicit enrichment in the performance of one’s office, position, employment or function in the direct or indirect public administration or public foundations.[51] Article 12 of that law establishes the following penalties, aside from any civil, administrative and criminal penalties called for: loss of unlawfully acquired property or securities; full restitution of whatever damages may have been caused; loss of government post; suspension of political rights; payment of a fine; preclusion from entering into any contract with the government or from enjoying tax or credit benefits or incentives.
- Law No. 8,666 of 1993, which makes it a criminal offense punishable by detention or payment of a fine, for a public servant to lobby the government on behalf of private interests, resulting in the institution of tendering or the conclusion of a contract. The courts will declare any such contracts null and void.
- The Penal Code,[52] which contains specific provisions establishing penalties for misconduct involving conflicts of interests, among them the following: embezzlement of public funds (Article 312); public graft (Article 316); acceptance of bribes (Article 317); breach of public duty (Article 319); using one’s public office or position to lobby the government on behalf of private interests (Article 321); disclosure of confidential information to which one is privy by virtue of one’s office or post (Article 325); a violation of the confidentiality of an offer tendered in competitive bidding (Article 326); influence peddling (Article 332); bribery (Article 333); bribery in international business transactions (Article 337-B); influence peddling in international business transactions (Article 337-C); and soliciting or accepting money or any other advantage in exchange for exercising one’s influence (Article 357).
- Applicable mechanisms in the Executive Branch of Government:
- Law No. 8,112 of December 11, 1990, which establishes the legal regime for civil servants of the Union, autonomous governing agencies and federal public foundations. This statute spells out the rights and duties of civil servants, the restrictions upon them, and the penalties that apply when the provisions of the law are violated, which are: admonition, suspension, dismissal and loss of retirement or leave, removal from a commissioned office and removal from a commissioned function.[53] Dereliction of duty is verified through either an investigation or some disciplinary administrative proceeding, wherein the suspect or the accused is assured the right to confront his or her accuser and to stage a defense. Law No. 8,112 of 1990 provides for the following disciplinary penalties once a disciplinary violation has been established: admonition, temporary suspension, dismissal, loss of retirement and/or leave, loss of appointment and removal from a commissioned office. Law No. 8,112 also provides that public servants who are dismissed or removed (in the case of a commissioned post) for violation of duties that are directly related to conflicts of interests,[54] shall be unfit for a position in the federal government for a period of five years. The disqualification from public service shall be for life when dismissal or removal from the commissioned post is for crimes committed against the public administration, administrative impropriety, misuse of public funds, losses caused to the public coffers, squandering of public assets, or corruption (Article 137, single paragraph).
- The penalties under Law No. 8,027 of April 12,1990, range from admonition, suspension for up to 90 days, dismissal,[55] loss of retirement or leave, all depending upon the seriousness of the misconduct, and as well as any civil, criminal and administrative responsibilities, which are mutually independent and cumulative (Article 8).
- The Code of Professional Ethics for Civil Public Servants in the Executive Branch of the Federal Government,[56] which establishes censure as the penalty for violation of its provisions, to be enforced by the respective Ethics Commission.[57]
- The Code of Conduct for High-ranking Government Officials, Article 17 of which provides that violation of the rules therein established shall carry the following penalties, which shall vary according to the severity of the violation and be applied by the Public Ethics Commission: warning, which shall apply in the case of officials in office; ethical censure, applicable to officials who have already left government service. If the severity of the violation so warrants, the Public Ethics Commission may recommend to the official’s immediate superior that the official be dismissed. The Public Ethics Commission also uses the following preventive control mechanisms: examination of confidential disclosure statements,[58] interpretative resolutions[59] and responses to inquiries.
- Law No. 9,784 of January 29, 1999, which establishes basic rules on administrative procedure within the direct and indirect administration of the Federal Government, in order to protect the rights of the governed and to better achieve the objectives of government. The criteria for the civil servant’s conduct articulated in that law are: objectivity in serving the public and adherence to ethical standards.
- Decree No. 5,480 of June 30, 2005, which concerns the Federal Executive Branch’s Corrective System, including activities to prevent and investigate irregularities by instituting and conducting corrective procedures. The instruments used for corrective purposes are preliminary investigation, inspection, investigation, the general administrative proceeding and the disciplinary administrative proceeding.
- Decree No. 5,483 of June 30, 2005, which requires that an inquiry be launched whenever an authority hears substantiated reports or sees evidence of any form of unlawful enrichment provided for in Law No. 8429 of 1992, among them an increase in a civil servant’s assets that is not commensurate with his or her resources and means.
- Applicable mechanisms in the Legislative Branch:
- The Boards of Ethics and Parliamentary Decorum of the House of Deputies and the Federal Senate conduct the disciplinary proceedings to apply the appropriate penalties in cases involving nonobservance of the rules of parliamentary decorum. The disciplinary measures used in the case of senators are as follows: warning, censure, temporary suspension and loss of office.[60] The penalties that apply in the case of deputies are: censure, suspension of privileges, temporary suspension from office and loss of office.[61], [62]
- Applicable mechanisms in the Judicial Branch:[63]
- The National Council of Justice exercises (external)[64] control over the administrative and financial affairs of the judicial branch and of compliance with the duties of judges (Article 103-B, paragraph 4). The disciplinary measures applicable to the members of the judicial branch are as follows: admonition, censure, compulsory removal, leave of absence proportionate to length of service, compulsory retirement to take effect at differing times determined by length of service, and dismissal.[65]
1.1.2. Adequacy of the legal framework and/or other measures and enforcement mechanisms
The provisions in relation to conflicts of interest that the Committee has examined, based on the information made available to it, are a relevant body of measures for promoting the Convention. Nevertheless, the Committee believes that the following observations are in order:
There are numerous provisions and mechanisms on subjects such as conflicts of interest in public service. However, with the exception of the small number of public agents subject to the Code of Conduct for High Ranking Officials in the Federal Government, the Code of Ethical Conduct of Public Agents Serving in the Office of the President and the Office of the Vice President of the Republic, or the laws creating the regulatory agencies mentioned in Section 1.1.1, above, the Committee finds that no detailed code of conduct exists for the other public agents, specifically to prevent conflicts of interests both while in public service and thereafter; nor are there any mechanisms intended to deal with such situations. The Committee will formulate recommendations in this regard (see recommendations “a”, “b” and “c” of Section 1.1. in Chapter III of this report).[66]
The Committee also notes that the codes of ethics provide for preventive measures that complement the Government (Administrative) Impropriety Act, which impose sanctions. [67]
Prominent among the rules regulating ineligibility for and restrictions on entry into public service is the clause of the Constitution that requires full exercise of political rights as one of the conditions to be eligible for public service, as well as Law 8,112 of December 11, 1990, which contains precisely the same requirement to be considered eligible for a position in government, as well as the specific prohibition contained in Article 137. Under both rules, therefore, any individual sanctioned for acts of government impropriety or whose political rights have been suspended for any other reason is permanently barred from public service in order not to undermine confidence in the integrity of public administration.
However, the Committee observes that in the Legislative Branch, it is not possible to disqualify congressman/congresswoman who, with knowledge that disciplinary proceedings aimed at investigating acts of corruption committed by him or her, resigns his/her office as a means to avoid the consequences of that proceeding. The Committee will formulate a recommendation in this regard. (See recommendation d. in Section 1.1 of Chapter III of this report);
1.1.3. Results of the legal framework and/or of other measures and enforcement mechanisms
Brazil’s updated response to the questionnaire reports that “Between August 2000 and June 2005, the Public Ethics Commission issued 1,234 notifications for failure to file information on earnings and assets, and 373 requests to provide additional information for the Confidential Disclosure Statement provided for in the Code of Conduct for Senior Federal Officials.” [68]
As for the results in its area of competence, the Public Ethics Commission points out the following data in the report of its activities in 2004, published at its Web site:[69]
“(…) In the course of the year, specific guidance was provided in 116 cases and general guidance in 461 cases; a total of 266 notifications were issued for failure to observe the rules of the Code of conduct. A handbook of the most commonly asked questions and their answers is constantly updated and distributed to those persons covered by the Code. Interested parties may also consult the handbook at the Committee’s web site: .br/etica.”[70]
“(...) 87.6% of the agencies and organs in the executive branch of the federal government are already governed by standards of conduct; 91% provide instruction in ethics and 84% apply sanctions for nonobservance of the established standards of conduct.” [71]
That Section of the updated response to the questionnaire that concerns the results of the standards of conduct in general, reports the figures for the organs of internal control (Office of the Comptroller General of the Union) and external control (the Court of Accounts of the Union).[72]
In the Committee’s view, the information reported indicates that the work of the Public Ethics Commission is preventive in nature, in that it counsels and instructs officials in the upper echelons of the federal government on how to avoid conflicts of interest.[73]
The Committee also notes that according to the figures that appear in the report of the Public Ethics Commission, less than half of the organs and entities in the executive branch of the federal government are conducting measures to monitor the observance of the standards of conduct. Given the importance of monitoring for purposes of effectively preventing conflicts of interest in public service and because the Committee has not received any information from other Ethics Commissions,[74] it will offer a recommendation in this regard (see recommendation “b” of Section 1.1. of Chapter III of this report).
As for the figures on the Office of the Comptroller General of the Union and the Court of Accounts, the Committee’s view is that the information reported reflects the investigative work and sanctions ordered by the two entities charged with enforcing the standards of conduct. However, the data are not sufficiently discrete to determine the specific conflict-of-interest standards involved.
Finally, because it did not have any additional information prior to the deadline established by the Committee, processed in such a way as to enable it to fully evaluate the results of the standards and mechanisms in this area, the Committee will offer recommendations in this regard (see general recommendations, 7.2 and 7.3 of Chapter III of this report).
2. STANDARDS OF CONDUCT AND MECHANISMS TO ENSURE THE PROPER CONSERVATION AND USE OF RESOURCES ENTRUSTED TO GOVERNMENT OFFICIALS
1. Existence of provisions in the legal structure and/or other enforcement measures and mechanisms
Brazil has a set of provisions pertaining to these standards of conduct, among which the following should be noted:
- The Federal Constitution, which establishes the duty to render accounts for any natural or legal, public or private person who uses, collects, holds in custody, manages, or administers public money, property, and securities, or that answers for the Union, or that assumes pecuniary obligations on its behalf (Article 70, single paragraph). Articles 165-169 of the Political Charter provide for additional general standards pertaining to the national budget,[75] including the following prohibitions, among others: a) initiation of programs or projects that are not included in the annual budget law; b) outlays or the assumption of direct obligations that exceed budget or additional appropriations; and, c) investments that are to be implemented over more than one fiscal year but were not previously included in the multiyear plan, or were not authorized for such inclusion by law (Article 167, subparagraphs I, II and single paragraph).
- Supplementary Law No. 101 of May 4, 2000 (Law of Fiscal Responsibility),[76] which establishes standards of public finance for responsible fiscal management. Articles 48-59 contain provisions related to transparency in fiscal management and society’s controls over the use of public monies, by means of the following measures:
a) extensive dissemination, including by electronic means, of copies of the budget plans, fiscal reports, and audit opinions on the accounts (Article 48, and Article 56, paragraph 3º);
b) encouragement of participation by the public and holding of public meetings to discuss preparation of the multiyear plan, budget guidelines, and the annual budget (Article 48, single paragraph); and
c) ensuring that the accounts presented by the President are available for consultation and evaluation throughout the fiscal year[77] (Article 49).
- Law No. 8112 of 1990, which imposes on civil servants the duty to pay attention to economies of materials and the preservation of public assets (Article 116, paragraph VII).[78] This Law also establishes cumulative civil, criminal, and administrative liabilities in the case of irregular performance of their functions (Arts. 121 and 125).[79] [80]
- Article 5 of Law No. 8429 of 1992, which provides for full compensation of damages in the event of loss of or harm to public assets by fraudulent or intentional act or omission by a public agent or a third party. The definition of the act of administrative dishonesty that causes damage to public property is found in Article 10, and consists of any intentional or fraudulent act or omission that causes the loss of public property, or the diversion, undue appropriation, squandering, or dissipation of such property.[81] Furthermore, among others, failure to report on accounts when obliged to do so also constitutes an act of administrative impropriety against the principles of public administration, (Article 11,VI).
- Law No. 8666 of 1993, which establishes rules or standards for government bidding and contracting,[82] provides a detailed description of the process for procurement and for contracting of work and services, including advertising, purchases, transfers, and leases, and using public resources.
- Decree No. 1171 of 1994, which establishes government probity and the rendering of accounts within legal deadlines as duties of civil servants, and essential conditions for the management of assets.
- There are also relevant provisions in the following laws: Law No. 4320, of March 17, 1964; Law No. 10933, of August 11, 2004 (2004-2007 Multiyear Plan) with amendments to Law No. 11044, of December 24, 2004; Law No. 10934 of August 11, 2004 (Law on Budget Guidelines – 2005); and Law No. 11100, of January 25, 2005 (2005 Budget Law).
Brazil also has mechanisms to enforce the cited standards or rules of conduct, among which the following should be noted:
- Article 70 of the Federal Constitution, which establishes two forms of control of public monies: one external, under the responsibility of the National Congress, with the Court of Accounts of the Union [Tribunal de Contas da União]; and the other internal, assigned to each branch of government.[83] The functions of the Court of Accounts of the Union are established in Article 71.[84] Any citizen, political party, labor union or association may report irregularities or illegal conduct to the Tribunal. In addition, the Political Charter provides that civil action for compensation for illicit acts that harm the public treasury are imprescriptible (Article 37, paragraph 5º).
- Supplementary Law 101 of 2000, which establishes standards for repayments for accountability in fiscal management, including planning and correction for diversions capable of affecting the equilibrium of public accounts. This Law states that the Union, the states, and the municipalities, through each branch of government, must render accounts to the respective Audit Office (Articles 49 and 56). The manner of rendering accounts is defined in Article 58, and the results of the evaluation of the accounts examined or received shall be widely disseminated. (Article 56, paragraph 3º).
- Law No. 8443 of July 16, 1992 (Organic Law of the Court of Accounts of the Union), which assigns investigative, corrective, precautionary, jurisdictional, and punitive functions, among others, to the Court of Accounts of the Union.[85] Articles 56 to 61 provide sanctions applicable to those who have their accounts judged as irregular,[86] and include fines,[87] disqualification from holding a commissioned office or a position of trust in the government for five to eight years, and, in the case of a fraudulent bidder, a declaration of ineligibility to participate in government bidding processes for up to five years (Article 46).
- The Council of Federal Justice, which according to law, [88] is expected to provide administrative and budget oversight of the federal courts at the first and second levels, as the central organ of the system with correctional powers. In addition, its decisions are binding (Federal Constitution, Article 105, single paragraph, subparagraph II).
- The National Council of Justice, established by Article 103-B of the Federal Constitution, is responsible for control of the administrative and financial activities of the Judicial Branch and for ensuring that judges perform their judicial duties (Article 103-B, paragraph 4º).
- Decree No. 3591 of September 6, 2000, which establishes the Internal Control System of the Federal Executive Branch;[89] one of its functions is to verify the legality and evaluate the results of budget, financial, and asset management in the organs and entities of the Federal Government, as well as uses of resources by entities under private law (Article 2º, subparagraph II)
- Law No. 8429 of 1992, which establishes sanctions[90] applicable to public agents who, by fraudulent or intentional act or omission, cause a loss in government assets, or divert, spend inappropriately, or squander public monies or property (Articles 10 and 12, II), independent of criminal, civil, or administrative sanctions stipulated in specific legislation.
- Law No. 8666 of 1993, Article 82 of which states that government agents who engage in acts contrary to the precepts of this Law or acts designed to thwart the objectives of public bidding shall be subject to the sanctions stipulated in Articles 86 to 88 and their regulations, notwithstanding any civil or criminal liability incurred by their acts. In this regard, Articles 86 to 99 refer to the administrative sanctions, offenses, and punishment applicable to public agents.[91]
- Law No. 8112 of 1990, Article 132 of which provides for the dismissal of civil servants in the following cases, among others: crimes against the government, administrative dishonesty, irregular use of public monies, damage to the public coffers, or dissipation of national assets. Moreover, Article 134 establishes that the pensions of inactive civil servants who have engaged in acts punishable by dismissal while in service will be revoked.
- Articles 312 to 327 of the Criminal Code define as criminal offenses and establish the punishment for acts perpetrated by public agents who fail to make adequate use of the public resources entrusted to them, including the following: peculation (Article 312); peculation by another’s error (Article 313); and, irregular use of public monies or revenue.
- Law No. 1079 of April 10, 1950, which refers to the following crimes of duty perpetrated by the President of the Republic, government ministers, ministers of the Supreme Federal Court and the Attorney General of the Republic [Procurador Geral da República][92], Governors, or State secretaries: administrative dishonesty and/or the illegal use of public monies, which, even if they are simply attempts, are punishable with removal from office and ineligibility to perform any public function for up to five years (Articles 2, 4, 11, 13, 39, 40, and 74).
- Decree-Law No. 201 of February 27, 1967, which establishes crimes of duty of municipal mayors [prefeitos]. [93] In addition, Article 7º provides for revocation of the term of city councilors who engage in acts of corruption or practice administrative dishonesty.
2. Adequacy of the legal framework and/or other enforcement mechanisms and measures
The standards and mechanisms for conservation and proper use of public resources that have been reviewed by the Committee, based on the information made available to it, are relevant for promoting the purposes of the Convention.
The country under review has standards that regulate this matter in detail, establish the political, administrative, criminal, and civil liabilities or penalties applicable to offenders, and assign powers and determine procedures to make such sanctions or penalties effective, thereby providing suitable mechanisms for ensuring compliance with those standards.
It is worth noting the use of electronic means, such as the Internet, to disseminate information related to the work of the internal and external control agencies of the Federal Executive Branch, and especially the “Transparency Portal,”[94] which provides access to information on federal resources allocated to States, the Federal District, and Municipalities, and to information on direct federal government expenditures, among other things. In addition, it highlights the importance attached to educating the citizens in control of the use of public monies, illustrated in the booklet drafted in accessible language and entitled “A close look at public money—a guide for citizens to exercise their rights.”[95]
The Committee, however, would like to make the following comments:
- Even though, through the execution process, some practical difficulties for the recovery of public money persists, the Committee recognizes the effort of the Brazilian Government aimed at perfecting its legal system, through Constitutional amendments (Costitutional Amendment 45 – “Judicial Branch Reform”), as well as to simplify and make the civil execution procedure more efficient (Law 11232 of December 22, 2005). The Committee will formulate a recommendation in this regard (see the recommendation for Section 1.2 of Chapter III of this report).
1.2.3. Results of legal framework and/or other enforcement mechanisms and measures
Brazil reports in the updated response to the questionnaire that “from January 2003 to July 2005, the Office of the Comptroller General of the Union (CGU) inspected 801 municipalities (in sixteen drawings of lots) and conducted inspections in 17 States. In addition, the CGU conducted around 800 investigations/audits based on complaints and local reports the Ministério Público and the Federal Police. The Transparency Portal has 211 million records of information on resources executed by the Federal Government and transferred to states and municipalities.” [96]
“In 2004, the CGU carried out 17,273 control missions, including 13,907 inspections, 2,981 management evaluation audits, and 385 account audits in all the states, covering 756 municipalities. The extent of geographical coverage was 13.6% of the 5,560 municipalities in the countries.”[97]
The country under review is also submitting information on how the audits and inquiries proceeded in relation to control and administration activities, in addition to other activities carried out by the CGU.[98]
The Committee believes that although the foregoing information is not broken down to the extent that would allow for a comprehensive assessment of the material, it shows that the Office of the Comptroller General of the Union has been playing an active role in the work of the area under its jurisdiction, and that deserves recognition.
Moreover, the Committee believes that it is appropriate to take into account the information on the work of the Court of Accounts of the Union (TCU) provided in the Section of the response for reporting the results of the standards of conduct and mechanisms in general, there it is explained that “in 2004, 5,904 external control proceedings were conducted; 6,837 proceedings were judged conclusively; 8,556 rulings were issued; 1,325 appeals were judged; 1,044 officials had their accounts judged as irregular; 18 officials were disqualified from holding a commissioned office or a trust position in the Federal Public Administration; 21 companies were declared ineligible to participate in bidding processes of the Federal Public Administration; and, there were 1,029 inspections or investigations, 414 of which were conducted in public works.” [99]
With regard to the foregoing information, the Committee notes the small number of officials who were disqualified from holding a commissioned office or a trust position in the Federal Public Administration compared to those whose accounts were judged irregular by the TCU. However, the information presented is not detailed enough for the Committee to fully assess the use of sanctions on the persons who violated the standards in the matter and whether they were enforced.
In the same Section, it is reported that of the 540 account proceedings judged conclusively in the first quarter of 2005, “204 (37.78%) were judged irregular, and led to the conviction of 268 officials and the imposition of fines and/or amends totaling R$ 65.036.408, 69, which were updated monetarily and increased by moratorium interest, when owing, up to the date of 3/31/05. In addition, in 17 other inquiries or investigative processes based on complaints or local reports, fines were imposed on 29 officials for irregularities, for a total of R$ 129,005.92.”[100]
Finally, because no further information, in addition to that already mentioned, has been broken down in such a way that the Committee could make a full evaluation of the results of the standards and mechanisms in this area, the Committee will formulate recommendations in this regard (see general recommendations 7.2 and 7.3 for Chapter III of this report).
3. MEASURES AND SYSTEMS REQUIRING GOVERNMENT OFFICIALS TO REPORT TO APPROPRIATE AUTHORITIES ACTS OF CORRUPTION IN THE PERFORMANCE OF PUBLIC FUNCTIONS OF WHICH THEY ARE AWARE
1. Existence of provisions in the legal framework and/or other measures and enforcement mechanisms
Brazil has a set of provisions concerning these standards of conduct and mechanisms, among which the following should be noted:
- The Federal Constitution, which establishes that persons responsible for internal control[101] have the obligation, if and when they become aware of any irregular or illegal act and to alert the Court of Accounts of the Union, or be held jointly and severally liable (Article 74, paragraph 1). It further stipulates that any citizen, political party, association, or union may report any irregularities or illegalities to the Court, in accordance with the law[102] (Article 74, paragraph 2).
- Law No. 8027 of 1990, which provides for standards of conduct for public civil servants of the Union, autonomous government agencies, and public foundations, establishes the duties of such civil servants, including the following ones: a) to be loyal to the institutions they serve (Article 2, II); and b) to lodge a complaint against illegal acts, omissions, or abuses of power (Article 2, XI).
- Law No. 8112 of 1990, which establishes the Legal System for Public Civil Servants of the Union, autonomous government agencies, and public federal foundations, and specifies the duties of such servants, including the following: a) to be loyal to the institutions they serve (Article 116, II); b) to comply with orders of superiors, unless they are clearly illegal (Article 116, IV); c) to report to a higher authority any irregularities they have knowledge of by virtue of their public function (Article 116, subparagraph VI); and, d) to lodge a complaint against any illegal acts, omissions, or abuses of power (Article 116, subparagraph XII). Law 8112/90 further stipulates that the authority who takes cognizance of an irregularity in the public service must immediately take steps to resolve it, through an investigation or an administrative disciplinary process, while ensuring that the accused has ample defense.
- The Code of Professional Ethics of Public Civil Servants of the Federal Executive Branch,[103] which, inter alia, refers to the duty of civil servants to report immediately to their superiors any act or fact contrary to the public interest, requesting the appropriate steps to be taken (Section II, XIV, m).
- Law No. 8,429 of 1992 Government (Administrative Impropriety Act), which establishes that public agents at any level or rank are required to ensure strict observance of the principles of legality, the restriction on making decisions based on personal reasons [impersonaldade], morality, and openness in the performance of the functions assigned to them (Article 4º). According to Article 11, an act of administrative dishonesty that contravenes the principles of public administration refers to any act or omission that violates the duties of honesty, impartiality, legality, and loyalty to its institutions, including undue delay in performing a public function, or failure to do so (Article 11, II).
- Supplementary Law No. 75 of 1993, which establishes the organization, powers, and statutes of the Ministério Público da União [Office of Public Prosecutor of the Union], and in its Article 236, states that it is the duty of its members to take the appropriate steps in the event of irregularities of which they have knowledge or which occur in the offices under their responsibility.
- Law No. 7347 of July 24, 1985, which disciplines public civil acts responsible for damages to the environment, consumers, goods and rights of artistic, esthetic, historic, tourist, or scenic value, and other diverse, collective interests,[104] and establishes that any person may—and civil servants must—report the act to the Ministério Público, giving it information on the nature and purpose of the civil act and indicating the elements of proof.
Brazil also has mechanisms to enforce these standards of conduct, including the following ones:
- The Penal Code,[105] which, in its Article 320, provides for a sentence of fifteen days to one month or a fine for public officials who, by indulgence or leniency, fail to hold accountable subordinates who commit a violation in the performance of their functions or, if they do not have the authority to do so, who fail to report such a case to the competent authority.
- Decree-Law No. 3688 of October 3, 1941 (Law on Criminal Violations), which punishes with a fine failure (omission) to report to the competent authority crimes occurring in public service to which they were privy in the performance of public functions (Article 66, I).
- Law No. 8429 of 1992 Government (Administrative Impropriety) Act), which establishes in its Article 12 the following sanctions applicable to public agents in cases of administrative dishonesty that violate the principles of the public administration: full restitution of whatever damages may have been caused; loss of government post; suspension of political rights, payment of a fine, preclusion from contracting with the government or from receiving fiscal or credit benefits or incentives.
- Law No. 8112 of 1990, which establishes the punishment of dismissal of civil servants in cases of administrative dishonesty and dereliction of duty[106] (Article 132, IV and XIII). There are similar provisions in Article 5º of Law No. 8027/1990.
- Supplementary Law No. 75 of 1993, which, in its Articles 239 to 243, establishes disciplinary sanctions for employees of the Ministério Público of the Union who fail to perform their legal duties.
- Law No. 1079 of 1950, which defines as an indictable offense/ breach / crime of duty against government probity committed by political agents in the Executive Branch of the Union and the States,[107] failure to hold their subordinates accountable when they appear to have committed offense in the performance of their duties or acts contrary to the Constitution.
1.3.2. Adequacy of the legal framework and/or other measures and enforcement mechanisms
The standards and mechanisms in relation to the measures and systems requiring public officials to report acts of corruption in government service to the appropriate authorities that the Committee has examined, based on the information available to it, are relevant for promoting the purposes of the Convention.
The Committee notes the importance of the obligations established in this area through the standards indicated at the previous session, and especially the specific provisions contained in Decree-Law No. 3688/41, Law 8112/90 and Law 8429/92.
On the other hand, in order to encourage civil servants to perform their duty to report, the Committee considers it useful to continue to take steps to strengthen the measures of protection for these civil servants, so that they are protected against any threats or reprisals resulting from compliance with this obligation, as well as increase their awareness of this obligation. The Committee will make recommendations in this regard (see recommendations “a” and “b” in Section 1.3, Chapter III, of this report).
The Committee would also like to acknowledge the existence of electronic means for presentation of reports to the Office of the Comptroller General of the Union and the Court of Accounts of the Union. Moreover, the Committee notes that, despite the fact that the Constitution prohibits anonymity, the Court of Accounts of the Union has legal mechanisms for protection of reporting parties, such as the confidential or secret investigation of reports and the inapplicability of sanctions to persons making disclosures in good faith.
1.3.3. Results of the legal framework and/or other measures and enforcement mechanisms
The updated response of Brazil to the questionnaire refers to various mechanisms for disclosures of acts engaged in by public officials in the Federal Government.[108] It goes on to say that “there is broad access to the system, covering all citizens, private individuals and civil servants. Thus the data examined in these systems include all disclosures, requests, and information, and it is impossible to individualize these data.”[109]
According to the information available on the website of the Office of the Comptroller General of the Union,[110] since 2001, 8,326 reports have been filed, of which 4,519 are under examination and 3,807 were settled.
The updated response of Brazil also reports that “despite the fact that the reporting mechanisms do not require civil servants to identify themselves as such, the electronic system of the Office of the Comptroller General of the Union recorded 90 reports from federal civil servants, 12 reports from municipal public employees, and 5 from state public employees between 2001 and 2005.”[111]
The limited nature of the available information does not allow the Committee to make a full assessment of the results in this area. Taking this into account, the Committee will make recommendations in this regard (see general recommendations 7.2 and 7.3, in Chapter III of this report).
2. SYSTEMS FOR REGISTERING INCOME, ASSETS AND LIABILITIES (ARTICLE III, PARAGRAPH 4 OF THE CONVENTION)
1. Existence of provisions in the legal framework and/or other measures
Brazil has a set of provisions related to the systems in question, among which the following should be noted:
- Law No. 8730 of November 10, 1993, which establishes the obligation to register assets and income in order to hold an office or post or work in the Executive, Legislative, and Judicial Branches.[112] According to Article 1, this declaration must be made[113] at the time of taking office, or upon assuming a post, position, or functions, as well as at the end of each fiscal year, and at the end of the term of office or mandate, and at the time of dismissal, resignation, or final separation or retirement from office of public servants. The form and content of the registration are established in Article 2.[114] Article 3 contains provisions regarding the consequences of failure to file said declaration.[115]
- Law No. 8429 of 1992, which requires civil servants to file the declaration of property and securities comprising ones private assets (Article 13) upon taking office or entering government service. This Law contains additional provisions on the content of declarations[116] (Article 13, paragraph 1) and on the requirement that it be updated annually and on the date that civil servants discontinue their government service, office, post or functions (Article 13, paragraph 2). Civil servants who fail to submit the declaration by the established deadline, or who submit a false declaration, shall be punished by dismissal, without prejudice to other applicable sanctions (Article 13, paragraph 3º).[117] In the case of unlawful enrichment, civil servants or third party beneficiaries will lose the property or securities added illegally to their assets. (Article 6º).
- Decree No. 5483 of June 30, 2005, which regulates Article 13 of Law No. 8429 for the Executive Branch of the Federal Government, and introduces the mechanism of asset inquiries. Article 7 prescribes that the Office of the Comptroller General of the Union, within the scope of the Federal Executive Branch, may examine changes in the assets of civil servants if it deems such action necessary, in order to verify that they are commensurate with the civil servant’s resources and means. In the event that an inconsistency is determined in those assets, the Office of the Comptroller General of the Union will initiate a procedure of inquiry into their assets[118] or requisition the competent organ or entity to initiate such a procedure (Article 7º, single paragraph). Moreover, Article 8 stipulates that on becoming aware of a well-founded report or signs of unlawful enrichment, or a change in assets that is not commensurate with the resources and means of a public agent, in accordance with the terms of Article 9 of Law No. 8429 of 1992, the competent authority may decide to initiate an inquiry into assets to determine the facts.
- Law No 8112 of 1990, which, at paragraph 5 of Article 13, establishes that, on entering public service, civil servants must present a declaration of the property and securities comprising their assets.
- Law No. 9504 of September 30, 1997, which requires candidates for elected posts to submit a declaration of their assets to the Electoral Board [Justiça Eleitoral] upon registering as candidates (Article 11, paragraph 1, IV).
Article 4 of the Code of Conduct for the Senior Federal Administration and Resolutions 1, 5 and 9 of the Public Ethics Commission provide that persons covered by the code must within 10 days send to the Commission a Confidential Declaration of information on their financial holdings (assets, rights and debts) that would or potentially could lead to a conflict with the public interest, indicating the means for avoiding such conflict. [119]
2.2. Adequacy of the legal framework and/or other measures
The standards related to systems for registering income, assets, and liabilities examined by the Committee, based on the information available to it, are relevant for promoting the purposes of the Convention.
However, the Committee is of the view that it would be advisable for Brazil to consider strengthening its systems in this area.
Firstly, the Committee refers to the comments made by Brazil in its updated response to the effect that “there is still no requirement to divulge (publicly) the declarations in question, which are kept in confidence by the authority to which they were addressed. The income declaration is only disclosed to control or regulatory agencies (Federal Revenue Secretariat, Court of Accounts of the Union, Office of the Controller General of the Union).” [120] However, it should be noted that the declaration of assets of candidates to elected posts stipulated in Law 9504/97 is an exception to the aforesaid provision, since, according to the information provided by Brazil in its updated response to the questionnaire, such declarations “are freely accessible by any citizen.”[121]
Taking into account the specific reference in the Convention to the system for the publication of declarations, “whenever appropriate,” the Committee believes that it would be advisable for Brazil to further regulate the conditions, procedures, and other appropriate aspects with a view to making these declarations public, and to enabling public access to the declarations stipulated in Law 9504/97, in particular. The Committee will formulate a recommendation in this regard (see recommendation “a” in Section 2, Chapter III of this report).
Secondly, taking into account the provisions that provide for the possibility for the declaration of assets to be used for the purpose of identifying a possibility situation of unlawful enrichment,[122] the Committee considers that in order to ensure that such purpose is consistent with and duly complementary to criminal legislation, the country in question should consider criminalizing unlawful enrichment. The Committee will formulate a recommendation in this regard (see recommendation “b” in Section 2, Chapter III of this report).[123]
Thirdly, it is noted that the provisions contained in Laws 8429/92 and 8730/93, and in Decree 5483/05 clearly state the purpose of using the declarations to detect possible cases of unlawful enrichment. However, the Committee deems it advisable that those declaration also be used by the country in question as a suitable instrument to prevent conflict of interests. The Committee will formulate a recommendation in this regard (see recommendation “c” in Section 2 of Chapter III of this report).
However, in view of the power of the Court of Accounts of the Union and the Office of the Comptroller General of the Union to verify the legitimacy of the source of property and income added to the assets of a public servant (Article 2, paragraph 7, b, of Law 8730/93 and Article 7 of Decree No. 5483/05, respectively), the Committee believes it would be useful for Brazil to consider strengthening the provisions pertaining to examination or verification of the contents of these declarations, to ensure that both entities have systems that would allow them to ensure the effectiveness of such verification, using methods such as sampling, and setting goals and deadlines in this regard. The Committee will formulate a recommendation in this regard (see recommendation “d” in Section 2 of Chapter III of this report).
2.3. Results of the legal framework and/or other measures
According to Brazil’s updated response, “in the Office of the Comptroller General of the Union, there are currently 95 investigations of the assets of public servants in process.”[124]
Due to the limited nature of the foregoing information, the Committee is unable to fully evaluation of the results in this area. Therefore, the Committee will formulate recommendations in this regard (see general recommendations 7.2 and 7.3 in Chapter III of this report).
3. OVERSIGHT BODIES FOR THE SELECTED PROVISIONS (ARTICLE III, PARAGRAPHS 1, 2 AND 11 OF THE CONVENTION)
1. Existence of provisions in the legal framework and/or of other measures
At the federal level, Brazil has a set of provisions relating to oversight bodies charged with the responsibility of ensuring compliance with the provisions stated in Article III, paragraphs 1, 2, 4 and 11 of the Convention, among which those relating to the following bodies should be noted:
- The Federal Public Prosecutor's Office (MPU), which according to the federal Constitution is headed by the Prosecutor General of the Republic (Article 128, paragraph 1), and is responsible for defending the legal order, the democratic regime, and the indispensable social and individual interests (Article 127), in conformity with Article 129 of the Constitution and with Supplementary Law 75 of 1993.
- The Court of Accounts of the Union (TCU)[125], the external control body, the powers of which are defined by Article 71 of the Constitution and by Article 1 of law 8443 of 1992. Its responsibilities include examining the accounts rendered each year by the President of the Republic and other officials responsible for public properties securities and monies of agencies and entities of the Federal Public Administration, as well as to conduct inspections and audits of the accounts, finances, budgets, operations or property of the administrative units of the legislative, executive and judicial branches and other entities.
- The Office of the Comptroller General[126] of the Union, the central body of the internal control system for the Federal executive branch[127], provides direct and immediate assistance to the President of the Republic in the performance of his duties, with respect to matters that, within the scope of the executive branch, have to do with defending public property and increasing transparency of management, through activities of internal control and public audit and those of the magistrate offices and the Ombudsman’s Office (Annex I, Article 1 of Decree 4,785 of 2003)[128]. Decree 4,785 of 2003 also conveys additional powers to the Office of the Comptroller General of the Union: a) to duly process the substantiated reports or complaints it receives regarding harm or threat of harm to public assets, ensuring that such reports or complaints are fully cleared up; b) in the event of some omission or oversight on the part of a competent authority, to request an inquiry or other government procedures and proceedings, or to intervene in those already in progress in some federal agency or organ to put them on the proper course, which may even mean invoking appropriate administrative sanctions; c) to refer to the Office of the Attorney General of the Union those cases that involve government impropriety and those that may entail forfeiture of property, reimbursement to the public coffers or other measures within the jurisdiction of that office; when necessary, the Comptroller-General’s Office may also refer matters to the Court of Accounts, the Secretariat of Federal Revenues, and the organs of the executive branch’s internal control system; when there is evidence of a crime, it may enlist the Federal Police Department and the Public Prosecutor’s Office, even in the case of patently slanderous reports or complaints. [129]
- The Combined Federal Government Financial Administration System – SIAFI [130]- is a control mechanism for activities related to the financial administration and accounting of the Federal Executive Branch, and is available 24 hours a day, seven days a week, in order to keep all its budgetary, accounting and financial transactions running.[131]
- An unnumbered decree of May 26, 1999 created the Public Ethics Commission. Its functions include[132] that of assisting the President of the Republic and the Ministers of State in taking decisions regarding any official act that could constitute a breach of the Code of Conduct for High-ranking Federal Officials; receiving complaints regarding actions taken by officials in violation of the provisions of the Code of Conduct for High-ranking Federal Officials, and investigating the veracity of those complaints, which must be properly investigated and substantiated; this also means identifying the party bringing the complaint and, when the process has been completed, reporting to the complainant the measures taken.
- A Decree of May 18, 2001 provided that the sectoral ethics commissions in the executive branch of the federal government –referred to in Decree No. 1,171 of June 22, 1994- are to serve as liaison with the Public Ethics Commission. Within the respective organs and entities, their function is to monitor the observance of the Code of Conduct for High-ranking Federal Officials and inform the Public Ethics Commission of any situations that might constitute a breach of the provisions of that Code, and promote the adoption of standards of ethical conduct specific to their servants and employees.
- The Internal Rules of the Chamber of Deputies (Article 265) and Federal Senate (Article…) provide that each chamber’s administrative services structure includes units to coordinate and execute management of accounts, budget, finances, operations, and assets and the internal control system.
- The National Council of Justice (CNJ) is the external control body that oversees the administrative and financial affairs of the judicial branch and compliance with the duties of judges. It is composed of magistrates in the lower courts, members of the Public Prosecutor’s Office, attorneys and civil society (Article 103-B of the Federal Constitution). Its functions, as defined in Article 103-B(4), include those of protecting the autonomy of the judicial branch, ensuring compliance with the Statute of the Judiciary and the lawfulness of the administrative actions taken by members of the judicial branch, and receiving claims filed against members or organs of the judicial branch.
- The National Board of the Public Prosecutor’s Office oversees the administrative and financial affairs of the Public Prosecutor’s Office and ensures that its members perform the duties of their office (Article 130-A of the federal Constitution). It is made up of members of the Public Prosecutor’s Office, judges, attorneys and civil society.
- In addition, there are other oversight bodies, including the Ethics Commission for Public Servants in the Offices of the President and the Vice President of the Republic,[133] the sectoral ethics commissions1[134], and the Parliamentary Investigation Commissions of the National Congress.[135]
3.2. Adequacy of the legal framework and/or of other measures
On the basis of the information available, the committee notes that Brazil has a series of provisions relating to oversight bodies to ensure compliance with the provisions of paragraphs 1, 2, 4 and 11 of Article III of the Convention, and that those provisions are pertinent for promoting the purposes of the Convention.
Nevertheless, the committee believes it would be useful for Brazil to continue to adopt measures tending to strengthen the oversight bodies, as well as the institutional mechanisms for coordinating those bodies, in order to combat corruption effectively. In particular, the committee suggests that Brazil strengthen the Public Ethics Commission, or any other Ethics Management System that may be created within the Federal Executive Branch, giving it a more permanent and institutional nature, and assuring it the necessary budgetary resources to carry out its functions, given their importance in preventing and combating corruption. The committee will formulate a recommendation to this respect (see the recommendation in Section 3 of Chapter III of this report).
3.3. Results of the legal framework and/or of other measures
In its updated response to the questionnaire[136], Brazil provides information on the results achieved through the Office of the Comptroller General of the Union and the Court of Accounts of the Union, as well as data on the Public Ethics Commission, which were examined in Section 1.1.3 above.
With respect to the Office of the Comptroller General of the Union, the committee notes that in 2004 it recorded receipt of “some 10,000 documents relating to reports on misappropriation of public funds or irregular conduct by public servants, or supplementing or responding to investigations already initiated”[137], of which 2,136 complaints and representations were admitted and duly processed.[138]
In 2004 the office of the Comptroller General of the Union concluded its analysis of 2,234 complaints and ordered the initiation of 141 investigations and disciplinary proceedings. In addition, “it supervised the conduct and reviewed the findings of 207 disciplinary proceedings”.[139] It also reports that 1,020 penalties were imposed on federal civil servants during the period January 1, 2002 to July 30, 2005.
Brazil notes that “in 2004, the Court of Accounts of the Union adjudicated 5,904 external control procedures; final decisions were handed down in 6,837 cases; 8,556 judgments were delivered; 1,325 appeals were heard; irregularities were found in the accounts of 1,044 defendants; 18 of those found guilty of irregularities were disqualified from performing any commissioned office or position of trust in the Federal Government; 21 businesses were declared ineligible to bid on contracts with the federal government. Some 1,029 audits were conducted, 414 in public works”. [140]
“(…) In the first quarter of 2005, the Court of Accounts had 1,204 cases involving external control issues; 1.028 cases were concluded. During that same period, the Court of Accounts received 15,060 personnel actions, 13,195 of which were evaluated. The following table shows the actions and decisions, classified by issue, and the number of personnel actions received and evaluated during the quarter. [141]
Brazil also submitted tables tracking the evolution of the number of external control proceedings between 2002 and the first quarter of 2005.
The committee considers that based on information submitted, it can be inferred that the Federal Comptroller General and the Court of Accounts are exercising their supervisory functions. The committee also notes the application of penalties to public servants by both entities, however the information presented is not sufficiently broken down to determine which penalties were applied and in which cases. Moreover, with respect to the Court of Accounts, in addition to the considerations noted in Section 1.2.3, above, the committee notes a considerable discrepancy between the number of persons whose accounts were found to be irregular and the number who were disqualified for commissioned office or positions of trust in the federal public administration. The committee will formulate a recommendation on this point (see recommendation in Section 3 of Chapter III of this report).
Finally, lacking additional information that would allow a comprehensive assessment of the results of the provisions and mechanisms in this area, the committee will formulate recommendations in this respect (see general recommendations 7.2 and 7.3 in Chapter III of this report).
4. MECHANISMS TO PROMOTE THE PARTICIPATION OF CIVIL SOCIETY AND NONGOVERNMENTAL ORGANIZATIONS IN EFFORTS TO PREVENT CORRUPTION (ARTICLE III, PARAGRAPH 11 OF THE CONVENTION)
4.1. GENERAL PARTICIPATION MECHANISMS
4.1.1. Existence of provisions in the legal framework and/or of other measures
Brazil has a series of provisions and measures relating to these mechanisms, among which the following should be noted:
- Article 5 (XXXIII) of the federal Constitution establishes the right to public information; Article 5 (XXXIV - a) enshrines the right of petition; Article 5 (LXXIII) provides for the right to file suit to invalidate any act detrimental to government morality or public assets or those of an entity in which the State has an interest (ação popular)[142]; Article 5 (LX) requires that all proceedings shall be made public; Article 14 (III), taken together with Article 61 (2), provides for popular legislative initiative; Article 31 (3) requires that municipal accounts be available for inspection by any taxpayer for a period of 60 days each year; Article 37 provides that government acts and contracts are to be a matter of public record; and Article 74 (2) establishes that any citizen, political party, association or labor union has standing to denounce irregular or unlawful acts before the Court of Accounts of the Union.
- Law No. 7,347 of 1985 regulates public civil actions for damages caused to the environment, to the consumer, to property and rights of artistic, aesthetic, historical, tourist and landscape value, and other diffused or collective interests,[143] and stipulates that any person may call for action by the Public Prosecutor’s Office, providing it with information on facts relating to civil litigation and indicating elements of evidence.
- Article 14 of Law No. 8,429 of 1992 (Government (Administrative) Impropriety Act) provides that any person may request investigation of an impropriety by reporting it to the government authorities.
- Article 53 of the Organic Law of the Court of Accounts of the Union (Law No. 8,443 of 1992) provides that any citizen, political party, association, union or professional association may file a complaint with respect to irregularities and violations of the law. .br
- Law No. 9,790 of March 23, 1999 institutes the idea of partnerships that civil society public interest groups (Organizações da Sociedade Civil de Interesse Público)[144] may enter into with government, with a view to establishing cooperative ties to further execution of activities in the public interest.
- Law No. 10,683 of 2003 gives the Federal Comptroller General's Office the power to receive and follow up on substantiated representations or complaints from any citizen, and to ensure a proper investigation (Article 18).[145] In addition, it provides that the Public Transparency and Anticorruption Council shall be composed with equal representation of the Federal Government and of organized civil society.
- Decree No. 4,785 of July 21, 2003 created the Office of the Ombudsman-General (Ouvidoria-Geral) of the Republic. Its duties include, inter alia, publicizing ways in which members of the public can participate in monitoring and supervising the delivery of public services (Article 10 (IV)).[146]
- Government portals on the Internet,[147] such as Rede Governo (“Government Network”)[148] where any interested person can obtain information on available public services, in addition to information on tendering procedures, including the possibility of monitoring or participating in Federal Government procurement conducted via the worldwide web through electronic tendering.
4.1.2. Adequacy of the legal framework and/or of other measures
Based of the information available, the committee notes that Brazil has provisions and measures relating to participation by civil society and nongovernmental organizations in efforts to prevent corruption.
Nevertheless, bearing in mind the methodology for reviewing implementation of Article III (11) of the Convention,[149] the committee will express some considerations and will formulate some specific recommendations on this matter in the appropriate Sections.
4.1.3. Results of the legal framework and/or of other measures
In its updated response to the questionnaire, Brazil points to the increase in the number of ombudsman’s units within the federal government during fiscal year 2003/2004. “In December 2004, there were 114 ombudsman’s offices in operation, an increase of 185% over December 2002 and 34% over December 2003”. [150]
Brazil reports that “in 2004, the Office of the Ombudsman-General of the Union received 2,045 statements and 1,409 documents of other types such as the following: requests to reopen cases already filed; and forwarding of additional information relating to cases under study. In all, some 3,454 documents were processed. As for the type of documents, some 87% involved claims, 5% were suggestions, 2% were laudatory remarks, and the remaining 6% were documents of other kinds”.[151] In filing these communications, the great majority of citizens (89%) used the Internet or e-mail, 9% wrote letters, and 2% employed other means, such as personal visits. The results up to December, 2004 are as follows: proceedings completed (90%); proceedings under study (4%); and proceedings suspended (6%).
Brazil also points to the holding of regional meetings of government ombudsmen, and the Second National Forum of Government Ombudsmen, as well as preparation by the Office of the Ombudsman General of the Union of “communications intended to guide and enlighten the public about what the Ombudsman’s Offices in the executive branch of the federal government are, how to use the services those offices offer and about the public’s right to monitor and be the watchdog of public service.”[152]
The committee notes that these measures reflect progress in strengthening the ombudsman's' offices and it reiterates the importance of using channels such as the Internet to facilitate the dissemination of public information and to encourage citizens to participate in efforts to prevent corruption.
However, the limited nature of the available information does not allow the committee to make a comprehensive assessment of results in this area. Bearing this in mind, the committee will formulate appropriate recommendations (see general recommendations 7.2 and 7.3 in chapter III of this report).
4.2. MECHANISMS FOR ACCESS TO INFORMATION
1. Existence of provisions in the legal framework and/or of other measures
Brazil has a series of provisions and measures relating to the above-noted mechanisms, among which the following should be noted:
- The federal Constitution, which establishes the principle that government laws, actions and contracts are a matter of public record (Article 37). In addition, the Constitution guarantees citizens the following rights:
▪ Right to information: every citizen has the right to obtain from government agencies information of private interest to that citizen or information of collective or general interest. The information is to be provided within the legally prescribed time period; otherwise, the party that fails to do so will be held accountable. The only exception regards information that must be kept confidential for the sake of the safety of society and the security of the State (Article 5 (XXXIII))[153].
▪ Right of petition:[154] all persons are guaranteed the right to petition public authorities, without payment of any fee, in the defense of rights or against unlawful acts or abuses of power, and to obtain records in government offices in order to protect rights and to clarify situations of personal interest (Article 5 (XXXIV).
▪ Habeas data:[155] pursuant to Article 5 (LXXII).[156]
- Law 8,159 of January 8, 1991, guarantees the right of full access to public documents (Article 22), with the exception of those the disclosure of which would pose a risk to the security of society or of the State, and those necessary to protect the privacy, honor and reputation of persons (Article 23 (1)).
- Law 11,111 of May 5, 2005, regulating the final provision of Article 5 (XXXIII) of the Constitution, provides (Article 2) that access to public documents of private or general interest may be restricted only when confidentiality is required for the security of society or the State. Article 4 establishes the Commission for Investigation and Analysis of Confidential Information, within the Office of President of the Republic.[157]
- Law 8,666 of 1993 requires monthly publication, in an official organ or in a notice that is widely accessible to the public, of a listing of all procurement purchases by the direct or indirect administration, identifying the good purchased, its unit price, the quantity purchased, the name of the vendor and the total value of the transaction. In addition, purchases for which bidding is not required may be grouped by items (Article 16).[158]
- Law 10,934 of 2004 (establishing guidelines for the 2005 budget) stipulates (Article 15) that the 2005 budget must be approved and executed in such a way as to maintain the transparency of fiscal management, with due regard to the principle of publicity and broad access for society to all information relating to each of those steps. It also requires the executive and legislative branches to publish, via the Internet, information useful for tracking management of the public finances (Article 15 (1 and 2)).[159]
4.2.2. Adequacy of the legal framework and/or of other measures
Based of the information available, the committee considers that the provisions and measures relating to access to information are pertinent for promoting the purposes of the Convention.
However, the Committee considers it relevant for Brazil to consider the advisability of integrating and systematizing in a single regulatory text the provisions that ensure access to government information. The Committee will formulate a recommendation on this point (see the recommendation in Section 4.2 of chapter III of this report).
4.2.3. Results of the legal framework and/or of other measures
The updated response to the questionnaire reports that “Brazil has a variety of mechanisms that give the public access to information under government control. These mechanisms can be used in both administrative and judicial proceedings. As stated previously, the rule is that all information must be a matter of public record. Because Brazil has no central clearinghouse for receiving requests for information, statistics are hard to come by. Even so, a number of the replies received did provide hard figures.”[160]
The limited nature of the available information does not permit the committee to offer a comprehensive assessment of results in this area. Bearing this in mind, the committee will formulate recommendations (see general recommendations 7.2 and 7.3 in chapter III of this report).
3. MECHANISMS FOR CONSULTATION
1. Existence of provisions in the legal framework and/or of other measures
Brazil has a series of provisions and measures relating to the above-noted mechanisms, among which the following should be noted:
Law 8,666 of 1993 requires that a public hearing be held when the estimated value of a tender or of a series of simultaneous or successive tenders[161] for engineering works and services exceeds R$150 million. That public hearing must be held at least 15 working days before the bidding documents are published, and must be announced at least 10 working days before it is held, through the same media used to publicize the tendering. At that meeting, interested parties have the right to obtain all relevant information and to comment on it (Article 39).
Decree 4,176 of March 28, 2002 provides that the Civil Affairs Office may, at its discretion, publish the basic text of any draft federal law for public consultation. Such publication shall be made via the Internet[162] for a maximum period of 30 days. At the end of that time, and after any suggestions received have been analyzed, the final version of the draft is sent to Congress (Article 50).
Complementary Law No. 101 of 2000 (the Fiscal Accountability Act) requires that public hearings be held to discuss preparation of the multiyear fiscal plan, budget guidelines, and the annual budget (Article 48) and that public consultations must be held where citizens can examine the accounts (Article 49).
Law No. 9,784 of 1999, regulating administrative procedure in the Federal Government, provides (Article 31) that widely publicized consultations shall be held whenever the matter involves issues of general interest.
Law No. 10,257 of July 10, 2001, (the Cities Statute), provides (Article 43) that the citizenry must be consulted regarding implementation of urban public policies in the municipalities.
4.3.2 Adequacy of the legal framework and/or of other measures
On the basis of the available information, the committee considers that the provisions and measures relating to consultation mechanisms are pertinent for promoting the purposes of the Convention.
Nevertheless, the committee believes that Brazil should consider continuing the encouragement of the use of existing consultation mechanisms, when appropriate, with procedures that will offer greater opportunity to hold public consultations prior to the design of public policies and the final approval of legal provisions. The committee will formulate a recommendation on this point (see the recommendation in Section 4.3 of chapter III of this report).
3. Results of the legal framework and/or of other measures
In its updated response,[163] Brazil points to the existence of mechanisms to consult the public. For example, public consultation is mandatory in the case of large-scale government procurements and is handled by the respective sectoral agency. The response also stresses the importance of public consultation on laws that would heavily impact society, as “a means of stimulating citizen involvement” and giving people “an opportunity to make their own suggestions and criticisms regarding the proposed laws.”[164]
The committee notes that the Section of the web site of the Office of Civil Affairs of the Presidency referring to public consultations[165] indicates that, since 2002, 11 consultations were held in accordance with decree 4176, five of which were held in 2005.
The limited nature of the available information does not allow the committee to make a comprehensive assessment of results in this area. Bearing this in mind, the committee will formulate recommendations (see general recommendations 7.2 and 7.3 in Chapter III of this report).
4.4. MECHANISMS TO ENCOURAGE PARTICIPATION IN PUBLIC ADMINISTRATION
4.4.1 Existence of a legal framework and/or other measures
Brazil has a series of provisions and measures relating to such mechanisms, among which the following should be noted:
- Article 1 of the Federal Constitution declares that all power emanates from the people, who exercise it by means of elected representatives or directly. Article 204 provides that government action in the area of social assistance shall be carried out in a decentralized manner, and that the public will participate through representative organizations in the formulation of policies and in the control of actions taken at all levels.
- Decree No. 4,923 of December 18, 2003 governs the Anti-Corruption and Government Transparency Council. The purpose of this Council, which is made up of government authorities and representatives of civil society (Article 3), is to suggest and debate measures to improve oversight methods and systems and enhance the transparency of government affairs, and measures to fight corruption and impunity (Article 1). Its powers include (Article 2) suggesting procedures that help strengthen and consolidate measures to improve transparency and fight corruption and impunity in the federal government, and serving as a body for coordinating and mobilizing civil society organizations to combat corruption and impunity.
- Resolution 19 of March 14, 2001 created the Parliamentary Ombudsman's Office within the Chamber of Deputies. Article 1 establishes its powers, which include those of receiving, examining, and forwarding to the competent bodies all complaints or representations[166] from any citizen or legal person relating to unlawful acts or malfunctioning of legislative and administrative services of the Chamber, and proposing measures to correct such violations and unlawful acts. The Ombudsman's Office is responsible to the citizens and institutions with respect to the measures of interest taken by the Chamber on legislative and administrative proceedings, and holding public hearings with segments of civil society.[167]
- Decree No. 5,683 of January 24, 2006 created the Office of the Ombudsman-General of the Union, as an integral part of the Office of the Magistrate General of the Union, with jurisdiction to provide technical coordination services to the ombudsman’s offices in the executive branch of government (Annex I, Article 14(I)); to publicize ways in which the public can participate in evaluating the delivery of public services (Annex I, Article 14(V); and to propose measures to correct and prevent failings and omissions in the delivery of a public service (Annex I, Article 14,(III).[168]
- Article 48 of Supplementary Law No. 101 of 2000, provides for transparency in fiscal management and requires broad disclosure, including via electronic media accessible to the public, of the plans, budgets, budgetary guideline laws, rendering of accounts, and the respective prior opinions. Transparency will also be assured by encouraging public participation and holding public hearings during the process of preparing and discussing plans, budget guidelines, and budgets.
- Decree 4,176 of March 28, 2002 provides that the Civil Affairs Office may, at its discretion, publish the basic text of any draft federal law[169] for public consultation, for a maximum period of 30 days. Following the consultation, and after any suggestions received have been analyzed, the final version of the draft is sent to Congress (Article 50).
- Law No. 8,142 of December 28, 1990 provides for community participation in managing the Single Health System (SUS), through the Health Conference and the Health Council, bodies that are responsible for defining health guidelines and for formulating strategies and overseeing the implementation of health policies, respectively, including economic and financial aspects.
- Law No. 10,257 of 2001 (the Cities Statute) stipulates that one of the general guidelines of urban policy is democratic management[170] through participation by the public and by representative associations of various segments of the community in formulating, implementing and monitoring plans, programs and projects for urban development (Article 2 (II)).
4.4.2. Adequacy of the legal framework and/or other measures
On the basis of the information available, the committee considers that the provisions and measures relating to mechanisms to encourage participation in government management are pertinent for promoting the purposes of the Convention.
The committee notes, in particular, the establishment of ombudsman's offices in various bodies of the executive branch, as well as in the legislative branch, and the efforts that Brazil has made to publicize information on the legislative process through the web pages of the Senate and the Chamber of Deputies, where any citizen can follow the progress of legislation of interest.
However, the committee suggests that Brazil consider strengthening and continuing to implement the existing participation mechanisms. The committee will formulate a recommendation on this point (see the recommendation in Section 4.4 of chapter III of this report).
4.4.3. Results of the legal framework and/or other measures
In addition to the results indicated in Section 4.1.3 on the Ombudsman General of the Republic, Brazil provided the following information in its updated response: “… a number of vehicles exist in Brazil to enable civil society to participate in the adoption of public policies. Nevertheless, the nature of each law and regulation and the framework in which it is applied make it difficult to quantify the impact that public consultation has had in combating corruption. [171]
“However, the media have quoted from government websites, for example the site of the Public Ethics Commission, when reporting on corruption-related issues.”[172]
The limited nature of available information, however, does not allow the committee to make a comprehensive evaluation of the results in this area. Bearing this in mind, the committee will formulate recommendations (see general recommendation 7.2 and 7.3 in chapter III of this report).
4.5. MECHANISMS FOR PARTICIPATION IN THE FOLLOW-UP OF PUBLIC ADMINISTRATION
4.5.1. Existence of a legal framework and/or other measures
Brazil has a series of provisions and measures relating to these mechanisms, among which the following may be noted:
- Law 8,666 of 1993 requires that public hearings be held for public tenders above a certain value, or for a series of simultaneous or successive tenders.[173]
- Decree No. 1,171 of 1994 provides that an ethics commission[174] is to be created in every organ of direct and indirect administration of the federal government, autonomous entities and foundations. These commissions are to provide public servants with guidance and counsel on professional ethics, how to deal with persons, and how to handle government property. They examine any charges of misconduct and conduct proceedings that may result in censure (Annex, para. XVI). The Ethics Commission may also look into any inquiries, complaints or reports filed by a citizen or an association against a public servant or the office or sector in which misconduct has occurred, when such complaints require analysis and deliberation in order to address or protect the exercise of public office or performance of the public function (Annex, para. XVII).
- Law No. 9,784 of 1999 regulates administrative procedure in the Federal Government. Articles 31 and 32 provide that the public shall be allowed to participate in government, either through public consultations or public hearings, whenever the matter involves issues of general interest. The competent authority must seek the public’s participation in such cases.
- Complementary Law No. 101 of 2000 (the Fiscal Accountability Act) requires that public hearings be held to discuss preparation of the multiyear fiscal plan, budget guidelines, and the annual budget (Article 48) and that public consultations must be held where citizens can examine the accounts submitted by the Head of the Executive Branch. Those accounts must be available throughout the fiscal year in the respective legislative branch and in the technical body responsible for their preparation (Article 49).
- Decree No. 5,481 of 2005 provides that those organs and agencies of the federal executive branch required to submit accounts must make publicly available, including by electronic means, their management report, audit report and audit certification, with the opinion of the internal control body and the decision of the responsible Minister of State or an official of similar rank, within thirty days following submission to the Court of Accounts of the Union.
- Decree 5,482 of June 30, 2005 governs the dissemination of data and information on federal budget and financial execution by agencies and entities of the federal government, via Internet, and regulates the Federal Government's Transparency Portal. The available information includes: “I: spending by agencies and entities of the federal public administration; II: transfers of federal revenues to the states, the Federal District and the municipalities; III: decentralized transactions with budgetary resources in favor of individuals or nongovernmental organizations of any kind; and IV: lending operations conducted by official development finance institutions” (Article 1).
- Government Directive No. 3,746 of December 17, 2004 established the Ministry of Justice’s transparency program and instituted internal measures to strengthen preventive instruments. This government directive states that the Ministry of Justice’s internet portal[175] will carry summaries of agreements, travel by public officials, as well as other items involving a transfer of public funds.[176]
- Agreements and technical cooperation established with nongovernmental organizations such as Transparência Brasil and AVANTE Qualidade, Educação e Vida.[177]
4.5.2. Adequacy of the legal framework and/or other measures
Based of the available information, the committee considers that the provisions and measures relating to mechanisms for participation for the follow-up of public administration are pertinent for promoting the purposes of the Convention.
It notes, in particular, the provisions of Complementary Law No. 101 of 2000, which seeks to ensure fiscal transparency through public participation and public hearings in the process of preparing and debating fiscal plans, budget guidelines and budgets. According to information provided by Brazil, “under the Fiscal Accountability Act, the executive branch must consult the public when drafting the Budgetary Guidelines Bill, the Annual Budget and the Multi-year Plan Bill. In practice this means that before any bill is sent to the legislative branch, public hearings must be held so that the public can express its views. This is because transparency and public oversight of fiscal management are mandatory.”[178]
On this point, the committee notes that the provisions and measures described above may contribute to promoting participation by civil society and by nongovernmental organizations in efforts to prevent corruption, and thus to promoting the objectives of the Convention.
Nevertheless, the committee considers that the country might do more to encourage participation by civil society and by nongovernmental organizations in monitoring public management, by offering training and assistance so that they can make proper use of existing information and mechanisms. The committee will formulate recommendations on this point (see recommendations a) and b) of Section 4.5 in chapter III of this report).
The committee also wishes to stress the efforts Brazil has made through the electronic media to disseminate official information, especially on the budget and on legislative activity, and it highlights the importance of the “Transparency Portal of the Federal Executive Branch”, as well as the web pages of the three branches of government and their respective open TV channels. The committee also recognizes the efforts of the Ministry of Justice through its “Transparency Program” web site to publish information on budget and financial execution, contracts, agreements, travel and per diems relating to the Ministry. The committee considers it advisable to suggest that this initiative be expanded to other ministries, pursuant to Article 2 of Decree No. 5482 of June 30, 2005, and will formulate a recommendation to this effect (see recommendation c) in Section 4.5 of Chapter III of this report).
4.5.3. Results of the legal framework and/or other measures
In its updated response,[179] Brazil provides information on access to the “Transparency Portal”. Although no detailed information is provided, the committee notes the considerable number of visits and requests for pages (with an average of nearly 25 pages requested per user visit) in a period of less than nine months.
However, the limited nature of the available information does not allow the committee to make a comprehensive assessment of results in this area. Bearing this in mind, the committee will formulate recommendations (see general recommendations 7.2 and 7.3 in Chapter III of this report).
5. ASSISTANCE AND COOPERATION (ARTICLE XIV OF THE CONVENTION)
5.1. MUTUAL ASSISTANCE
5.1.1. Existence of provisions in the legal framework and/or other measures
Brazil has a set of provisions in this area, among which note should be made of the bilateral treaties in effect[180] and ratified multilateral instruments, such as the United Nations Convention Against Corruption, the United Nation Convention Against Transnational Organized Crime, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD), and the MERCOSUR Protocol for Mutual Legal Assistance in Criminal Matters (Argentina, Uruguay, and Paraguay).
In addition, Brazil reports in its updated response to the questionnaire[181] that it can meet requests for international legal cooperation even in the absence of a treaty with the requesting country, on the basis of the principle of reciprocity.
In the same context, Law 9613 of March 3, 1998, which pertains to the crimes of “laundering” or concealment of property, rights and securities, establishes, in the absence of a treaty or convention, the sharing of property, rights, or securities seized or confiscated at the request of the competent foreign authority or resources derived from their sale, by dividing them half and half between the requesting state and Brazil, except for the rights of injured parties or third parties of good faith.
It is also important to note the active participation of the Ministry of Justice (and especially the Department for Recovery of Assets and International Legal Cooperation – DRCI)[182] in important initiatives, such as the Hemispheric Network for Exchange of Information for Mutual Assistance in Criminal Matters and the Pilot Project for Secure Electronic Mail among Central Authorities in this area, within the framework of the OAS, the Iberamerican Network for Legal Cooperation (IBERRed), and the International Network for Legal and Judicial Cooperation for Portuguese Speaking Countries (CPLP).
5.1.2. Adequacy of the legal framework and/or other measures
The foregoing provisions and measures are adequate and can help achieve the purposes of the Convention to promote and facilitate mutual assistance among the States Parties. They can also facilitate fulfillment of the objectives of the Convention related to investigation and criminal prosecution of acts of corruption, in the event they are used for such purpose.
However, based on the information presented by Brazil in its updated response,[183] to the effect that it does not have a specific law that regulates compliance with requests for international legal cooperation, and additionally considering that the country under review could benefit from an increase in the number of bilateral and multilateral agreements on the matter,[184] the Committee will formulate a recommendation along these lines (see recommendation 5.1 in Section 5 of Chapter III of this report).
5.1.3. Results of the legal structure and/or other measures
Brazil notes in its updated response to the questionnaire the existence of 40 proceedings of active legal assistance involving requests for international legal cooperation in matters of corruption now being processed by the Department for Recovery of Assets and International Legal Cooperation of the Ministry of Justice. In 2002, according to previous information, Brazil made 12 requests for legal assistance pertaining to the crime of corruption, of which none were denied.[185]
As for requests received, according to the information presented, the country in question has not yet received any requests for international legal cooperation based on the Inter-American Convention against Corruption.[186]
5.2. MUTUAL TECHNICAL COOPERATION
1. Existence of provisions in the legal framework and/or other measures
Brazil’s updated response to the questionnaire notes that “in order to effectively combat the crime of corruption, with a view to facilitating implementation of investigations, Brazil has been disseminating and promoting extensive negotiations of judicial cooperation agreements, in addition to national and international talks, meetings, and seminars with magistrates, members of the MP, and government agents.”[187]
The following are some of the seminars held:
a) Conference on the Inter-American Convention Against Corruption, held in Brasilia on May 8, 2003, organized by the Ministry of Justice and the Organization of American States (OAS).
b) Forum on Implementation of Policies on Conflict of Interests in the Government Service, organized jointly by the Organization for Economic Cooperation and Development (OECD) and the Inter-American Development Bank (IDB), in cooperation with the Organization of American States (OAS) and the Brazilian government, held in Rio de Janeiro on May 5 and 6, 2004.
c) OECD Conference on combating bribery of public officials in international business transactions, held on September 27 and 28, 2004 in Brasilia.
d) Fourth Global Forum on Combating Corruption, an event organized by the Office of the Comptroller General of the Union, and held June 7 to 10, 2005.
e) Second Meeting of Central Authorities and Other Experts in Mutual Legal Assistance in Criminal Matters and Extradition of the OAS, held in Brasilia September 1 to 3, 2005, and organized by the National Justice Secretariat of the Ministry of Justice and the Organization of American States, in partnership with the Ministério Público Federal and the Ministry of Foreign Affairs.
In addition, Brazil further reports[188] that “on June 14, 2002, a memorandum of understanding was signed to establish a Network of Government Institutions for Public Ethics in the Americas, comprising eight countries, with a view to promoting assistance and the exchange of technical information and experiences to enhance programs for transparency, combating corruption, and strengthening public ethics and probity being developed in these countries. The Public Ethics Committee and the Office of the Comptroller General of the Union are members of the Committee for Brazil. The Network has its own website, which has a registry of documents, a forum for exchanging experiences, and a chat line for teleconferences.”
5.2.2 Adequacy of the legal structure and/or other measures
The Committee considers it positive that Brazil, according to its updated response, has concluded agreements and carried out technical cooperation activities related to the fight against corruption, and that, for this purpose, it has linked up with international agencies, multilateral financial institutions, and other states parties of the CICC. These measures are regarded as relevant for the purposes of the Convention in this area.
5.2.3. Results of the legal structure and/or other measures
Taking into account the information provided in its updated response, Brazil has developed technical cooperation programs related to the struggle against corruption The Committee therefore believes that the country in question should be encouraged to continue its cooperation efforts in this area, and a recommendation will be formulated to that effect (see recommendation 5.2 in Section 5 of Chapter III of this report).
Notwithstanding, the Committee deems it advisable that Brazil determine specific areas in which it would be useful to receive cooperation, and that it seek the necessary support from other countries or multilateral cooperation institutions. The Committee will formulate a recommendation to that effect (see recommendation 5.3 in Section 5, Chapter III of this report).
6. CENTRAL AUTHORITIES (ARTICLE XVIII OF THE CONVENTION)
6.1. Existence of provisions in the legal framework and/or other measures
In its updated response to the questionnaire, Brazil reports that the Ministry of Justice was designated as Central Authority for matters of mutual assistance and mutual technical cooperation, pursuant to the terms of the Convention. It also reported that the National Secretary for Justice was the responsible official, and provided her address and other contact related information. This designation was formally communicated to the General Secretariat of the OAS on March 21, 2006.[189]
The work carried out by the Ministry of Justice, through its “Department for Recovery of Assets and International Legal Cooperation,” charged with handling all requests for the assistance and cooperation to which the Convention refers, should also be highlighted. According to the update to its response, other organs are also collaborating, such as the Office of the Advocate-General of the Union, the Public Prosecutor’s Office, the Investigative Police, the Financial Transactions Oversight Board (COAF), the Federal Revenue Office and Interpol and (…) and the Center for International Legal Cooperation (CCJI) of the Attorney General's Office, pursuant to joint decree MJ-PGR-AGU 01 of October 28, 2005.
2. Adequacy of the legal framework and/or other measures
The provisions and other measures adopted by Brazil and examined by the Committee with regard to central authorities, based on the information made available to the Committee, are pertinent for promoting the purposes of the Convention.
6.3. Results of the legal framework and/or other measures
Brazil notes in its updated response to the questionnaire that “there is no record of any request for assistance made under this Convention”. [190]
III. CONCLUSIONS AND RECOMMENDATIONS
Based on the review carried out in Chapter II of this report, the Committee is offering the following conclusions and making the following recommendations regarding the implementation, in the Federative Republic of Brazil, of the provisions contained in Article III (1) and (2) (standards of conduct and mechanisms to enforce compliance); Article III (4) (systems for registering income, assets and liabilities); Article III (9) (oversight bodies, exclusively with regard to their performance of functions relating to compliance with the provisions of paragraphs 1, 2, 4 and 11 of Article III of the Convention); Article III, 11 (mechanisms for encouraging the participation of civil society and nongovernmental organizations in efforts to prevent corruption); Article XIV (assistance and cooperation), and Article XVIII (central authorities) of the Convention, all of which were selected for review within the first round.
A. IMPLEMENTATION OF THE CONVENTION AT THE STATE AND MUNICIPAL LEVELS
As noted above in Section A of chapter II of this report, the committee recommends that Brazil should consider working with the state and municipal authorities to develop suitable cooperation mechanisms in order to expand information on Convention-related issues within their respective jurisdictions and to provide technical assistance for effective implementation of the Convention.
B. CONCLUSIONS AND RECOMMENDATIONS AT THE FEDERAL LEVEL
1. STANDARDS OF CONDUCT AND MECHANISMS TO ENFORCE COMPLIANCE (ARTICLE III, PARAGRAPHS 1 AND 2 OF THE CONVENTION)
1. Standards of conduct intended to prevent conflicts of interests and enforcement mechanisms
Brazil has considered and adopted measures intended to create, maintain and strengthen standards of conduct and enforcement mechanisms to prevent conflicts of interests, as outlined in Chapter II, Section 1.1 of this report.
In light of the comments made in that Section, the Committee suggests that Brazil consider strengthening the implementation of laws and regulatory systems on conflicts of interests, ensuring that they apply to all public officers, so as to permit practical and effective application of such systems. To comply with this recommendation, Brazil may wish to take the following measures into account:
a. Bearing in mind the existing legislative initiative, consider incorporating, into a single body of rules, a regime on the system of conflicts of interests that applies to all public officers, so that all public servants, the governed and users know precisely what their duties and rights are and thereby, eliminate the existing gaps in coverage of the present rules. However, such a measure would not preclude the existence of rules targeted at specific sectors that may require special treatment or more restrictive rules.
b. Develop or strengthen, as appropriate, mechanisms to monitor and resolve cases of conflicts of interest for all public officers, in keeping with the previous recommendation.
c. Establish, as appropriate, proper restrictions upon those who leave public service, such as prohibiting them from having any role in matters in which they were involved by reason of their office or position, or with any entity with which they were recently associated, for a reasonable period of time.
d. Implement measures to ensure that the resignation of those parliamentarians, with knowledge of the possibility that disciplinary proceedings based on alleged acts of corruption are likely to be instituted against them, does not hinder those proceedings and avoid the applicable sanctions.
2. Standards of conduct and mechanisms to ensure the proper conservation and use of resources entrusted to government officials in the performance of their functions and enforcement mechanisms
Brazil considered and adopted measures designed to create, maintain, and strengthen standards of conduct to ensure the proper conservation and use of resources entrusted to government officials in the performance of their functions, as stated in Chapter II, Section 1.2 of this report.
In view of the comments formulated in this Section, the Committee suggests that Brazil consider the continued strengthening of the implementation of rules of conduct to ensure the proper conservation and use of resources entrusted to public officials. To comply with this recommendation, Brazil may wish to take into account the following measure:
- Strengthen control mechanisms in general, in order to ensure even further, enforcement of the sanctions imposed.
1.3. Standards of conduct and mechanisms concerning measures and systems requiring government officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware
Brazil has considered and adopted measures to establish, maintain, and strengthen standards of conduct and mechanisms concerning measures and systems requiring public officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware, as noted in Chapter II, Section 1.3 of this report.
In view of the comments made in this Section, the Committee suggests that Brazil consider strengthening the standards and mechanisms requiring public officials to report to the appropriate authorities acts of corruption in the performance of public functions of which they are aware. To comply with this recommendation, Brazil may wish to take the following measures into account:
a. Continue to take measures tending to strengthen measures of protection for public officials who report acts of corruption in good faith, to protect them from possible threats or reprisals against them as a result of compliance with this obligation.
b. Increase the awareness of public officials of the purposes of the duty to report to the appropriate authorities, acts of corruption in the performance of public functions of which they are aware.
2. SYSTEMS FOR REGISTERING INCOME, ASSETS, AND LIABILITIES (ARTICLE III, PARAGRAPH 4 OF THE CONVENTION)
Brazil has considered and adopted measures intended to establish, maintain, and strengthen systems for registration of income, assets, and liabilities of persons who perform public functions in certain posts as specified by law, in accordance with Chapter II, Section 2 of this report.
In light of the comments made in that Section, the Committee suggests that Brazil consider strengthening the systems for registration of income, assets, and liabilities. To comply with this recommendation, Brazil may wish to take the following measures into account:
a. Regulate conditions, procedures, and other aspects related to publication, where appropriate, of records of income, assets, and liabilities, in keeping with the fundamental principles of the legal system of the Federative Republic of Brazil.
b. Criminalize the act of unlawful enrichment (see Chapter II, Section 2.2 of this report).
c. Optimize systems for analyzing the content of declarations of income, assets and liabilities, with a view to making them a useful tool for detecting and preventing conflict of interests or violations of law, where appropriate.
d. Strengthen the provisions related to review or audit of the content of declarations, so that the Court of Accounts of the Union and the Office of the Comptroller General of the Union have procedures that allow them to enhance the effectiveness of these processes, in keeping with the fundamental principles of the legal system of the Federative Republic of Brazil (see Chapter II, Section 2.2 of this report).
3. OVERSIGHT BODIES WITH RESPECT TO SELECTED PROVISIONS (ARTICLE III, PARAGRAPHS 1, 2, 4 AND 11 OF THE CONVENTION)
Brazil has considered and adopted measures designed to create, maintain and strengthen oversight bodies for effective compliance with the provisions selected for analysis in the first round (Article III, paragraphs 1, 2, 4 and 11 of the Convention), as indicated in Chapter II, Section 3 of this report.
In light of the comments formulated in that Section, the committee suggests that Brazil consider the following recommendation:
- Continue strengthening the oversight bodies in their functions relating to application of paragraphs 1, 2, 4 and 11 of Article III of the Convention, especially the Public Ethics Commission, with a view to making such oversight effective; give them greater support as well as the necessary resources to carry out their functions; and strengthen mechanisms that will enable institutional coordination of their activities, as applicable, and on-going evaluation and supervision.
4. MECHANISMS TO ENCOURAGE PARTICIPATION BY CIVIL SOCIETY AND BY NONGOVERNMENTAL ORGANIZATIONS IN EFFORTS TO PREVENT CORRUPTION (ARTICLE III, PARAGRAPH 11, OF THE CONVENTION).
Brazil has considered and adopted measures to create, maintain and strengthen mechanisms to encourage participation by civil society and nongovernmental organizations in efforts to prevent corruption, as indicated in Chapter II, Section 4 of this report.
In light of the comments formulated in that Section, the committee suggests that Brazil consider the following recommendations:
4.1. General mechanisms for participation
The Committee did not find it necessary to formulate recommendations in this section.
4.2. Mechanisms for access to information:
- Continue strengthening the mechanisms for access to government information.
To comply with this recommendation, Brazil may wish to take the following measure into account:
- Consider the advisability of integrating and systematizing in a single regulatory text the provisions that ensure access to government information.
4.3. Mechanisms for consultation
- Continue strengthening the mechanisms for consultation.
To comply with this recommendation, Brazil may wish to take the following measure into account:
- Continue promoting the use of existing mechanisms, in order to allow the consultation by interested sectors, on the design of public policies and the drafting of bills, decrees or resolutions in the various agencies of government.
4.4. Mechanisms to encourage active participation in public administration
- Strengthen and continue implementing mechanisms to encourage participation by civil society and nongovernmental organizations in efforts to prevent corruption
To comply with this recommendation, Brazil may wish to take the following measure into account:
- Establish mechanisms, in addition to those now in existence, for strengthening and encouraging participation by civil society and by nongovernmental organizations in public administration, and especially in efforts to prevent corruption, and promote understanding of established participation mechanisms and how to use them.
4.5. Mechanisms for participation in monitoring public administration
- Strengthen and continue to implement mechanisms to encourage participation by civil society and nongovernmental organizations in monitoring public administration.
To comply with this recommendation, Brazil may wish to take the following measures into account:
a. Where applicable, promote ways in which public officials can allow, facilitate or help civil society and nongovernmental organizations develop activities for monitoring public administration and preventing corruption.
b. Design and implement specific programs for publicizing mechanisms for participation in monitoring public administration and, as appropriate, provide training and assistance to civil society and nongovernmental organizations for making use of those mechanisms.
c. Give further publicity to official information through various electronic channels (see Chapter II, Section 4.2.2 of this report).
5. ASSISTANCE AND COOPERATION (ARTICLE XIV OF THE CONVENTION)
Brazil has adopted measures in relation to mutual assistance and mutual technical cooperation, in accordance of the provisions of Article XIV of the Convention, as discussed in Chapter II, Section 5 of this report.
In view of the comments made in this Section, the Committee suggests that Brazil consider the following recommendations:
1. Establish legislation on mutual assistance and continue negotiating bilateral agreements on the subject, in addition to becoming a party to other pertinent international instruments that facilitate such assistance.
2. Continue efforts to exchange technical cooperation with other states parties concerning the most effective ways and means to prevent, detect, investigate, and punish acts of corruption.
3. Determine and prioritize specific areas in which Brazil considers that it needs the technical cooperation of other States Parties or multilateral cooperation institutions to strengthen its capacity to prevent, detect, investigate, and punish acts of corruption.
6. CENTRAL AUTHORITIES (ARTICLE XVIII OF THE CONVENTION)
Brazil has complied with Article XVIII of the Convention by designating the Ministry of Justice as the central authority for the purposes of the international assistance and cooperation under the Convention. as discussed in Chapter II, Section 6 of this report.
In view of the comments made in this Section, the Committee suggests that Brazil consider the following recommendation:
- Officially notify the OAS Secretary General of the central authority designated, in accordance with established procedures.
7. GENERAL RECOMMENDATIONS
Based on the analysis and the contributions that appear throughout this report, the Committee suggests that Brazil give due consideration to the following recommendations:
7.1. Design and implement, as appropriate, programs to provide training for public officials responsible for implementing the systems, standards, measures and mechanisms considered in this report, in order to ensure that they are adequately understood, managed and implemented.
7.2. Select and develop procedures and indicators, as appropriate, for verifying follow-up of the recommendations made in this report, and notify the Committee, through the Technical Secretariat, in this regard. For the purposes indicated, Brazil could consider taking into account the list of the most widely used indicators, applicable in the Inter-American system that were available for the selection indicated by the country under analysis, which has been published on the OAS website by the Technical Secretariat of the Committee, as well as information derived from the analysis of the mechanisms developed in accordance with recommendation 7.3, which follows.
7.3. Develop, when appropriate and where they do not yet exist, procedures for analyzing the mechanisms mentioned in this report, as well as the recommendations contained herein.
8. FOLLOW-UP
The Committee will consider the periodic update reports submitted by Brazil with regard to its progress with implementation of previous recommendations, within the framework of the Committee’s plenary meetings and as provided in Article 30 of the Committee’s Rules of Procedure and Other Provisions.
The Committee will also examine the progress made with implementation of the recommendations offered in this report, pursuant to Article 31 and, when and if appropriate, Article 32 of the Rules of Procedure.
ANNEX
TO THE REPORT ON THE IMPLEMENTATION, IN THE FEDERATIVE REPUBLIC OF BRAZIL, OF THE PROVISIONS OF THE CONVENTION SELECTED FOR REVIEW WITHIN THE FIRST ROUND
Constitution of the Federative Republic of Brazil, October 5, 1988. Articles: 1, 5, 14, 18, 31, 37, 54, 55, 61, 70, 71, 74, 75, 84, 62, 92, 93, 182, 183, 204, 225.
çao.htm
Decree-Law No. 2,848 of December 7, 1940 – Penal Code.
Decree-Law No. 3,688 of October 3, 1941 - Law on Breaches or Infractions of Minor Ordinances or Rules.
Decree-Law No. 3,689 of October 3, 1941 – Code of Penal Procedure.
Law No. 1,079 of April 10, 1950 - Defining the crimes of misconduct and contains the procedural rules by which such crimes are to be adjudged.
Law No. 4.320, of March 17, 1964.
Law No. 4,717 of June 29, 1965 - Regulating the action bringing public civil suit [ação popular].
Decree-Law No. 201 of February 27, 1967 - Containing provisions on the accountability of mayors and members of city/town councils.
Law No. 5,869 of January 11, 1973 - Establishing the Code of Civil Procedure.
Supplementary Law No. 35 of March 14, 1979 - Containing the Organic Law of the Judiciary.
Law No. 6,880 of December 9, 1980 - Containing provisions on the Statute of the Military.
Law No. 7,347 July 24, 1985 - Regulating public civil actions for damages caused to the environment, to the consumer, to property and rights of artistic, aesthetic, and historical value, tourism value and natural scenic beauty.
Law No. 8,027 of April 12, 1990 - Containing standards of conduct of civil public servants of the Union, autonomous government entities and public foundations.
Supplementary Law No. 64, of May 18, 1990, establishing cases of ineligibility of political agents.
Law No. 8,078 of October 11, 1990 – A consumer protection law.
Law No. 8,112 of December 11, 1990 – Containing provisions of the juridical regime governing civil servants of the Union, of the autonomous governing agencies and federal public foundations.
Law No. 8,137 of December 27, 1990 – Defining tax crimes, economic crimes and crimes against consumer relations.
Law No. 8,142 of December 28, 1990 - Containing provisions governing the community’s participation in managing the Single Health System [Sistema Único de Saúde (SUS)] and on government revenue sharing in the area of health.
Law No. 8.159 of January 8, 1991 - Regulating the national policy related to public and private records and establishing other measures.
Law No. 8,429 of June 2, 1992, the Government (Administrative) Impropriety Act - Spelling out the penalties to be enforced in the case of public servants found guilty of unlawful enrichment in the exercise of one’s office, post, job or function in the direct or indirect public administration or public foundation.
Law No. 8,443 of July 16, 1992 - Containing provisions on the Organic Law of the Court of Accounts of the Union.
Law No. 8,666 of June 21, 1993 - Introducing regulations to govern government tendering and contracting.
Federal Senate Resolution No. 20 of November 7, 1993 - Code of Ethics and Parliamentary Decorum.
Supplementary Law No. 75, of 20 may 1993, issuing provisions on the organization, powers, and Statute of the Office of the Attorney General of the Union.
Law No. 8,730 of November 10, 1993 - Stipulating that disclosure of assets and income shall be required to hold any position, job or function in the executive, legislative and judicial branches of government.
Decree No. 1,171 of June 22, 1994 - Approving the Code of Professional Ethics for Civil Public Servants in the Executive Branch of the Federal Government.
Law No. 9,034 of May 3, 1995 - Prescribing the operating methods that can be used to prevent and repress the activities of criminal organizations.
Law No. 9,051 of May 18, 1995 - Containing provisions on the issuance of records that enable an interested party to protect his or her rights and clarify situations.
Law No. 9265 of February 12, 1996 -- regulates item LXXVII of Article 5 of the Constitution, which provides that the acts necessary to the exercise of citizenship are free of charge.
Law No. 9,427 of December 26, 1996 - Creating the National Electric Energy Agency – ANEEL, and establishing the rules to govern concessions to provide electric power services.
Law No. 9,472 of July 16, 1997 - Containing provisions on the organization of the telecommunications services, creation and operation of a regulatory agency, and other institutional matters.
Law No. 9,478 of August 6, 1997 - Regulating national energy policy and activities associated with the State petroleum monopoly; it also created the national Energy Policy Board and the National Petroleum Agency.
Law No. 9,504 of September 30, 1997 - Setting forth election-related rules.
Law No. 9,507 of November 12, 1997 - Regulating freedom of information and establishing the procedural rules for habeas data.
Supplementary Law No. 95 of February 26, 1998 - Containing provisions on the preparation, drafting, amendment and consolidation of laws and for consolidating the regulatory laws enumerated therein.
Law No. 9,613 of March 3, 1998 - Criminalizing the “laundering” or concealment of assets, titles and securities; it also contains provisions to prevent the financial system from being used for the ill-gotten gains referred to in this law, and creates the Financial Transaction Oversight Board [Conselho de Controle de Atividades Financeiras – COAF].
Law No. 9,656 of June 3, 1998- Containing provisions regulating private health care plans and insurance.
Law No. 9,782 of January 26, 1999 - Defining the National Health Surveillance System and creating the National Health Surveillance Agency.
Law No. 9,784 of January 29, 1999 - Regulating administrative procedure in the federal public administration.
Law No. 9,790 of March 23, 1999 - Containing provisions on the qualification of private-law, nonprofit entities, and civil society public interest organizations. It also institutes and regulates partnership.
Decree of May 26, 1999 (no number) - Creating the rules governing the Public Ethics Commission.
Law No. 9,961 of January 28, 2000 - Creating the National Supplemental Health Care Agency.
Supplementary Law No. 101 of May 4, 2000, the Fiscal Accountability Act - Establishing the rules governing public finances for the sake of accountability in fiscal management.
Law No. 9,984 of July 17, 2000- Containing provisions on the creation of the National Water Agency [Agência Nacional de Águas – ANA].
Law No. 9,985 of July 18, 2000 - Governing Article 225, paragraph 1, subparagraphs I, II, III and VII of the Federal Constitution; it creates the National Network of Nature Conservation Offices.
Law No. 9,986 of July 18, 2000 - Containing provisions on personnel management in regulatory agencies.
Exposição de Motivos (Statement of Intent) No. 37 of August 18, 2000, approved by the President of the Republic on August 21, 2000 - Embodying the Code of Conduct for High-ranking Federal Government Officials; it establishes the rules that appointees are to follow in discharging the duties of high office in the federal government.
Decree No. 3,591 of September 6, 2000 - Containing provisions on the Internal Control System in the Executive Branch of the Federal Government and other measures.
Resolution No. 1 of September 13, 2000 -- establishes procedures by which officials are to present information on their financial situation pursuant to the Code of Conduct for the Senior Federal Administration. ção/resolucoes1.htm
Resolution No. 25, passed by the Chamber of Deputies in 2001 - Introducing its Code of Ethics and Parliamentary Decorum.
Resolution No. 19, of March 14, 2001, establishing the Parliamentary Ombudsman's Office within the Chamber of Deputies.
Decree of May 18, 2001 (no number) - Containing provisions governing the relationship between the ethics commissions of federal organs and agencies and the Public Ethics Commission, and amending the Decree of May 26, 1999.
Law No. 10,233 of June 5, 2001 - On the reorganization of waterborne and overland transportation; it creates the National Board for Integration of Transport Policies, the National Overland Transportation Agency, the National Waterborne Transportation Agency, and the National Department of Transportation Infrastructure.
Resolution No. 5 of June 7, 2001 -- approves the model Confidential Declaration of Information to be presented by officials subject to the Code of Conduct for the Senior Federal Administration, and provides for the updating of financial information for purposes of Article 4 of that Code. ção/resolucoes5.htm
Law No. 10,257 of July 10, 2001, the Citizenship Statute - The implementing legislation for articles 182 and 183 of the Federal Constitution; it also spells out general urban policy guidelines.
Provisional Measure No. 2,216-37 of August 31, 2001 - Amending the provisions of Law No. 9,649 of May 27, 1998, which contains provisions on the organization of the Office of the President of the Republic and the Ministries.
Provisional Measure No. 2,225-45 of September 4, 2001 - Creating the National Anti-drug System.
Law No. 10,409 of January 11, 2002 - Containing provisions on the prevention, treatment, inspection, control and suppression of the production and use of products, substances or illegal drugs that are physically or mentally addictive, and traffic therein.
Decree No. 4,081 of January 11, 2002, setting out the Code of Ethical Conduct of Public Agents Serving in the Office of the President and the Office of the Vice President of the Republic.
Decree No. 4,176 of March 28, 2002 – Setting forth the rules and guidelines for preparation, drafting, amendment and merger of regulations that are the jurisdiction of agencies in the executive branch of the federal government and their transmittal to the President of the Republic.
Decree No. 4,177 of March 28, 2002 - Ordering the transfer of the authorities and administrative units named therein from the Office of Civil Affairs of the Presidency and from the Ministry of Justice, to the Office of the Magistrate-General of the Union; it also orders other measures.
Decree No. 4,187/2002 of April 8, 2002 - Governing articles 6 and 7 of Provisional Measure No. 2,225-45 of September 4, 2001, which prohibit authorities from engaging in activities or providing services upon separation from service, and stipulate the compensation that the Union must pay to them by reason of this prohibition.
Decree No. 4,405 of October 31, 2002 - Amending Decree No. 4,187 of April 8, 2002, which regulates articles 6 and 7 of Provisional Measure No. 2,225-45 of September 4, 2001, on the prohibition against engaging in business or providing services following one’s separation from public service; it also concerns the remuneration ex-officials are to receive from the federal government by reason of the restriction.
Decree No. 4,490 of November 28, 2002 – Approving the Structure and Table of Commissioned Offices and Remunerated Positions in the Office of the Magistrate-General of the Union.
Law No. 10,683 of May 28, 2003 - Concerning the structure of the Office of the President of the Republic and the Ministries
Decree No. 4,785 of July 21, 2003 - Approving the Administrative Structure and the Illustrative Chart of the Functions on Commission of the Comptroller General of the Union and establishing other measures.
Interpretative Resolution No. 8 of September 25, 2003, from the Public Ethics Commission - Identifying the circumstances that could pose conflicts of interest and how to prevent them.
Decree No. 4,923 of December 18, 2003 - Regarding the Council for Transparency in Government and Combating Corruption.
Decree No. 4.991, of February 18, 2004, establishing the Department for Asset Recovery and International Legal Cooperation (DRCI).
Law 10.871, of May 20, 2004, on regulatory agency officials.
Law No. 10.933, of August 11, 2004 (Multi-year Plan 2004-2007), as amended by Law No. 11.044, of December 24, 2004.
Law No. 10,934 of August 11, 2004 - Containing guidelines for preparation of the 2005 budget law.
Decree No. 5,301 of December 9, 2004 - Regulating the terms of Provisional Measure No. 228 of December 9, 2004, which provides for the exception provided for in the final part of subparagraph XXXIII of Article 5 of the Constitution.
Government directive No. 3,746 of December 17, 2004 – Establishing the Ministry of Justice’s Transparency Program and internal measures to enhance government preventive measures.
Law No. 11.100, of January 25, 2005 (Budget Act 2005).
Law No. 11,111 of May 5, 2005 - Regulating the final part of the provision at XXXIII of Article 5 of the Federal Constitution and establishing other measures.
Resolution No. 9 of May 20, 2005 -- makes provisions concerning the Confidential Declaration of Information. ção/resolucoes9.htm
Decree No. 5,480 of June 30, 2005 - Containing provisions on the executive branch’s corrective system.
Decree No. 5,481 of June 30, 2005 - Containing additions to Article 20-B of Decree No. 3,591 of September 6, 2000, which contains provisions on the Federal Executive Branch’s Internal Control System.
Decree No. 5,482 of June 30, 2005 - Containing provisions regulating reporting by organs and agencies of the federal public administration, via the Global Computerized Networks – Internet.
Decree No. 5,483 of June 30, 2005 – Regulating, in the executive branch of the federal government, Article 13 of Law No. 8,429, of June 2, 1992; it makes provision for investigations of assets.
Decree No. 5,497 of July 21, 2005 -- governs appointments to commissioned offices of the High-level Management and Advisory Services Group (DAS), levels 1 to 4, for career civil servants in the federal public administration.
Resolution No. 07, of October 18, 2005, of the National Council on Justice, prohibiting nepotism in the judiciary.
Decree No. 5683 of January 24, 2006 -- approves the organizational structure and table of commissioned offices and remunerated functions in the Office of the Comptroller General of the Union, and makes other provisions.
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[1] This report was adopted by the Committee in accordance with the provisions of Article 3(g) and 26 of its Rules of Procedure and Other Provisions, at the plenary session held on March 31, 2006, at its ninth meeting, held at OAS Headquarters in Washington D.C., United States, March 27 to April 1, 2006.
[2] Update to Brazil’s response, Introduction, p.1.
At the Brazilian State’s request and in keeping with the Committee’s Rules of Procedure and Other Provisions, its response to the questionnaire and the corresponding appendices are published online at the following web address:
[3] Voter registration and voting are mandatory for those over the age of 18 and optional in the case of the illiterate, those over age 70, and those over 16 but under 18 years of age.
[4] In performing other functions, the President introduces bills, adopts provisional measures (Article 62 of the Constitution), drafts delegated laws (Article 68 of the Constitution), and adjudicates matters when he makes decisions in specific cases, as in the case of the Administrative Council for Protection of the Economy.
[5] Article 92 of the Constitution lists the bodies that comprise the judicial branch. They are as follows: a) The Federal Supreme Court, which is the guardian of the rules and principles enshrined in the Constitution. Its judicial functions are to serve as a court of review; b) the National Council of Justice, whose function is to monitor the administrative and financial performance of the judicial branch and the judges’ performance of their functions; c) the Superior Court of Justice, whose main function is to protect federal legislation and treaties, and ensure uniform jurisprudence; d) the Federal Regional Courts and the Federal Judges, which have jurisdiction over cases in which the Union’s interests are at stake, cases involving crimes provided for in treaties, disputes over indigenous rights, and other matters; e) the Labor Courts and Judges, which have jurisdiction to arbitrate and decide individual and collective differences between workers and employers; f) the Electoral Courts and Judges, which are the guardians of decency in government and morality in the exercise of political office and which safeguard elections to ensure that they are routine and lawful and to protect them from the influence of economic persuasion or abuse of political power; g) the Military Tribunals and Judges, which have jurisdiction to prosecute and try the military crimes defined by law; and h) the State Courts and Judges, which have jurisdiction over all other cases.
[6] The Public Prosecutor’s Office figures under Chapter III of the Federal Constitution – “The Essential Functions of the Justice System.”
[7] Under the Constitution, the Office of the Advocate General performs an essential function in the justice system, as it serves as legal representative of and provides legal counsel to the respective units of the Union and to the Public Defender’s Office, which is required to provide free legal counsel and pro bono defense services to the needy, at all levels of the legal system.
[8] The head of the executive branch in every unit of the Union –states and the Federal District- (governor and deputy governor) and municipalities (mayor and deputy mayor) may be re-elected to a second term.
[9] Brazil presented a reservation to Article XI,1(c) at the moment of the deposit of its instrument of ratification.
[10] The document was received via e-mail on August 20, 2005, and appears online at the following Web address:
[11] Federal Constitution, Articles 22-24; 49, I; and 84, VIII.
[12] “An examination of the current Federal Constitution reveals that execution of international treaties and their incorporation into domestic law results, in the system adopted by Brazil, from a subjectively complex act, resulting from the combination of two homogeneous intents: that of the National Congress, which decides definitively, by legislative decree, on international treaties, agreements or acts (Constitution, Article 49, I) and that of the President of the Republic, who besides signing these acts of international law (Constitution, Article 84, VIII) also has the responsibility, as Chief of State, to promulgate them by decree (…).” (ADI 1.480-MC, Rel.Min.Celso de Mello, DJ18/05/01).
[13] The term “public agent” used in this report has the same meaning in relation to the Brazilian legal system as the terms “public official”, “government official”, or “public servant” as used in the Convention. See In this sense, Article 2 of Law No. 8,429 of June 2, 1992 (Government (Administrative) Impropriety Act) contemplates : “Public agent, for the purposes of this law, includes any person who exercises, even if only temporarily or without remuneration, by election, appointment, designation, contract or any other form of investiture or link, mandate, position, employment or function in the entities mentioned in the previous Article.”
[14] See, also, Article 4 of Law 8,429 of June 2, 1992 (Government (Administrative) Impropriety Act).
[15] This prohibition applies to positions and functions (within the framework of the three branches, including the Office of Public Prosecution) in autonomous agencies, foundations, public enterprises, mixed-capital companies, their subsidiaries, companies controlled, either directly or indirectly, by the government and regulatory agencies (Article 37, XVII).
[16] Absent conflicting schedules, the same individual may serve in the following posts: 1) two teaching positions; 2) one teaching position and another position in a scientific or technical field; and 3) two positions or jobs for health professionals, in regulated professions (Article 37, XVI, subparagraphs “a”, “b” e “c”).
[17] The public administration shall abide by the following principles: a) tests, or tests in combination with certification of professional and/or academic credentials, depending on the nature and complexity of the position, shall be required for placement in any public position or employment, in the manner prescribed by law; the exceptions are offices filled by commission which, by law, may be filled or vacated on a discretionary basis;” (Article 37, II); and b) “positions of trust, held exclusively by civil servants already in government service, and functions on commission, to be filled by career public servants in the cases, under the conditions, and by the percentages prescribed by law and reserved solely for executive, leadership and advisory positions” (Article 37, V).
[18] Update to Brazil’s response to the questionnaire, p. 7: “Save for the exceptions allowed under the Federal Constitution, the Federal Supreme Court has insisted that the constitutional principle of competitive examination is a principle and a rule that must be followed in filling any public office or employment. It has expressly disallowed the non-application of this principle; it has also expressly prohibited fraudulent application of the rule by transferring public servants to positions other than those for which they were originally selected (Federal Supreme Court – Suspension of Writ of Mandamus No. 1,081-6/ES, Diário da Justiça, Section I,3 set. 1996, p.31.187; Suspension of Writ of Mandamus No. 1,082-4/ES, Diário da Justiça, Section I, 3 set. 1996, p. 31.189. In all these cases, Chief Justice Sepúlveda Pertence was the justice who wrote the decision.”
[19] See footnote 13, above.
[20] In accordance with Article 84, this law is applicable to “those that exercise, even if for a temporary period, or without payment, any position, job or function”, including in any parastate entity.
[21] This Law covers civil servants in the three branches of the Union (executive, legislative and judicial) as well as those of the indirect public administration (autonomous agencies and federal foundations) and employees of entities that expressly adopt the juridical regime instituted by that Law, such as the regulatory agencies, as explained in Article 6 of Law 10,871 of 2004.
[22] A number of provisions of this Statute also appear in the Code of Conduct of Federal Public Servants (Law 8,027 of April 12, 1990).
[23] See also Article 4 paragraph VI of the Code of Conduct of Federal Public Servants.
[24] “Except membership on the management and administration boards of businesses in which the Union holds, either directly or indirectly, a share in the capital stock ,or in cooperative ventures established to provide services to their members” (Article 117, X).
[25] See also Article 5 paragraph III of the Code of Conduct of Federal Public Servants.
[26] See also Article 5 paragraph II of the Code of Conduct of Federal Public Servants.
[27] See also Article 4 paragraph III of the Code of Conduct of Federal Public Servants.
[28] See also Article 5 paragraph VIII of the Code of Conduct of Federal Public Servants. The prohibition contained in this article is broader than the one found in the Federal Public Servants Statute, as the Code of Conduct of Federal Public Servants also prohibits “promises” to accept.
[29] See also Article 6 of the Code of Conduct of Federal Public Servants.
[30] Like the Federal Public Servants Statute, this law applies to those in public office or employment in direct government, autonomous government entities or in public foundations.
[31] Instituted by Decree No. 1,171, June 22, 1994. Item XXIV of Chapter II of the Code of Ethics:
“For purposes of ethical compliance, a public servant is understood to be any person who, by force of law, contract or any other juridical act, provides services of a permanent, temporary or exceptional nature, even without financial compensation, provided that person is connected directly or indirectly to any government body, as well as autonomous agencies, public foundations, para-state entities, public enterprises, and mixed-capital businesses, or in any sector where the interest of the State prevails.”
[32] The Code of Conduct for High-Ranking Federal Government Officials was instituted by Exposição de Motivos (Statement of Intent) No. 37 of August 18, 2000, and was approved by the President of the Republic on August 21, 2000. The provisions contained in the Code apply to the following positions: I - Ministers and secretaries of state; II - persons holding special offices, executive secretaries, secretaries or officials with similar authority in the High-level Executive and Advisory Services Group (DAS), level six; III - presidents and directors of national agencies, autonomous entities, including the special agencies and foundations funded by the government, public enterprises and mixed capital companies (Article 2).
[33] According to Statement of Intent No. 37, dated August 18, 2000, “the Code contains a set of rules that public servants whom the President of the Republic has appointed to any high-level position therein named must observe. Violation of the provisions of the Code shall not necessarily entail a violation of the law; rather, it shall represent a failure to comply with a moral commitment and with the qualitative standards established for the conduct of officials at the highest levels of government. Consequently, the penalty provided is political in nature: warning and ‘ethical censure’. If the seriousness of the transgression so warrants, the Code also makes provision for suggesting an official’s removal from office.”
[34] Moreover, the Public Ethics Commission adopted Interpretative Resolution No. 8 on September 25, 2003, which identifies situations that pose conflicts of interest and makes provision for the means to prevent such conflicts.
[35] Created by a decree (no number) of May 26, 1999.
[36] Acceptance of gifts is permissible in only three cases: when the gift has no financial value; when the financial value of the gift is R$ 100.00 (one hundred reais) or less, or when the gift is a matter of protocol on the part of foreign officials and involves reciprocity (Article 9).
[37] Remunerated under the terms of Provisional Measure No. 2,225-45, of 2001, and Decree No. 4,187, of 2002, as worded in Decree 4,405 of 2002.
[38] Similarly, Article 2 of Decree 4,187, of April 8, 2002, which regulates articles 6 and 7 of Provisional Measure No. 2,225-45, of September 4, 2001.
[39] Instituted by Decree No. 4,081, of January 11, 2002.
[40] For purposes of this Code, a public agent is defined as being anyone who, by law, contract or any other juridical act, renders permanent, temporary, exceptional or occasional services in the Office of the President and the Office of the Vice President of the Republic. (Article 1, single paragraph).
[41] See articles 4, 7, 8, 10, 11 and 14 of Decree No. 4,081, of January 11, 2002.
[42] Created by Decree No. 4,081 of January 11, 2002 (Article 3).
[43] An obligation reserved for officials in the High-level Executive and Advisory Services Group (DAS), level three or higher (Article 5).
[44] Many of these agencies, moreover, have specific penalties for violations of these prohibitions (such as the rule that stipulates that once their term has ended or as of the date of their separation from service, former officials are banned from engaging in any activity or from providing any service in the sector regulated by the respective agency, for a period of twelve months), which appear in the following legal provisions: articles 29 and 30 of Law No. 9,472, of July 16, 1997, which created the National Telecommunications Agency, ANATEL; articles 6, 9 and 10 of Law No. 9,427, of December 26, 1996, which created the National Electric Energy Agency, ANEEL; Article 14 of Law No. 9,478, of August 6, 1997, which created the National Petroleum Institute, ANP; Article 9 of Law No. 9,961, of January 28, 2000, which created the National Health Agency, ANS; articles 13 and 14 of Law No. 9,782, of January 26, 1999, which instituted the National Health Control Agency, ANVISA; Article 11 of Law No. 9,984, of July 17, 2000, which created the National Waters Agency, ANA; and articles 57, 58 and 59 of Law No. 10,233, of June 5, 2001, which established the National Overland Transportation Agency and the National Waterborne Transportation Agency, ANTT and ANTAQ.
[45] Restrictions “a” and “b” apply as soon as the credentials certifying the senator-elect’s election victory are issued. The others (“c”, “d” and “f”) apply once the senator or deputy takes his or her seat.
[46] A copy of the declaration shall be sent to the Court of Accounts of the Union (Article 18, paragraph 2).
[47] The principle contained in Article 93 (I) of the Federal Constitution stipulates that appointment to the bench –all appointees start as substitute judges- is achieved by winning a competitive examination based on tests and credentials. The Brazilian Bar Association is involved in all phases of the competition. A bachelor’s degree in law, as a minimum, as well as three years legal experience are required to apply for appointment to the bench; in making the appointments, the order of classification must be followed. The same principle applies in the case of appointments to the Public Prosecutor’s Office (Article 129, paragraph 3).
[48] Under Article 93(III) of the Federal Constitution, appointments to the courts of second instance shall be made alternately on the basis of seniority and merit and selections shall be at the final or only level.
[49] Decree-Law No. 3,689 of October 3, 1941, articles 112, 252-256.
[50] Law No. 5,876, of January 11, 1973, articles 134-138.
[51] Any person may file a claim with the competent government authority to have an inquiry launched to examine an act constituting misconduct. Under the Government (Administrative) Impropriety Act, the interested party may also turn to the Public Prosecutor’s Office directly, which shall formally request that a police inquiry or administrative procedure be instituted. Once the administrative procedure is underway, the committee handling the matter shall report to the Court of Accounts and to the Public Prosecutor’s Office, both of which may designate representatives to monitor the administrative procedure (articles 14 and 15).
[52] Decree-Law No. 2,848 of December 7, 1940. According to the Criminal Code, Art. 327, “anyone who, even though temporarily or unpaid, performs a public job, position or function is deemed to be a public official. Anyone who performs a public job, or holds a function in a para-state body or who works for a service-providing company hired or contracted to carry out any activity typical of the Public Administration is also deemed to be a public official. For criminal purposes, the Federal Supreme Court interprets the notion of public official in a fairly broad manner (Criminal Code, Article 327), including political agents and commissioned offices. (Decisions: HC 72465; HC 79823; Inq. 1769).
[53] Dismissal, considered to be one of the most severe penalties that a public servant can receive, is applied in the following cases: crimes against government; abandonment of post; habitual absence; administrative dishonesty or indecency; administrative unrestraint and scandalous office conduct; grievous insubordination on the job; physical assault while on the job, either of a colleague or a private citizen, except in a case of legitimate self-defense or in defense of another; misuse of public funds; revealing secrets to which one is privy by reason of one’s position; theft of public funds and destruction of government property; corruption; unlawful accumulation of public offices, jobs or functions; and violation of paragraphs IX to XVI of Article 117.
[54] Applicable in cases in which the public agent has used his position to obtain some personal gain for himself or another, and in those cases in which the agent has had a role, either as agent or intermediary, vis-à-vis government offices (Article 137, single paragraph).
[55] Article 5 provides that the following are among the administrative violations punishable by dismissal: I – to use or to allow third parties to make wrongful use of the information, prestige or influence of one’s office to obtain, either directly or indirectly, some advantage for oneself or another, to the detriment of the dignity of one’s public office; II – to engage in commerce or participate in any business partnership, even a mixed-capital company, except as a shareholder or silent partner; III – to participate in the management or administration of a private enterprise and, in that capacity, do business with the State; IV – to use office personnel or material resources for private services or activities; V – to engage in any activities incompatible with one’s public office or function, or even one’s work schedule; VI – to accept or promise to accept gratuities or gifts of any kind or of any value, as well as personal loans or advantages of any kind by reason of one’s office or position; VII – to engage in government impropriety; VIII – to reveal any secret to which one is privy by reason of one’s office, post or employment.
[56] Instituted by Decree No. 1,171, of June 22, 1994.
[57] Article XVI reads as follows: “An ethics commission shall be created in every organ of direct and indirect administration of the federal government, autonomous entities and foundations. These commissions shall provide public servants with guidance and counsel on professional ethics, on how to deal with persons, and on handling of government property. These commissions shall also examine any charges of misconduct and conduct proceedings that may result in censure.”
[58] An instrument introduced by Article 4 of the Code, whereby officials must provide information regarding any assets they might hold that could or actually do conflict with the public interest. They must also show how the conflict will be averted.
[59] The following figure prominently among the resolutions issued: I – Interpretative Resolution No. 8, dated September 25, 2003, defining the circumstances that constitute a conflict of interests; II – Interpretative Resolution No. 3, of November 23, 2000, regulating the acceptance of gifts and presents; and III – Interpretative Resolution No. 2, of October 24, 2000, regulating authorities’ participation in seminars, congresses and other events.
[60] Loss of office shall be decided by the Plenary of the Federal Senate, by secret ballot and by an absolute majority of votes. The proposal recommending that the individual in question be stripped of his or her office shall be submitted to the Chair by either the Council of Ethics and Parliamentary Decorum or any political party represented in the National Congress (Article 55, paragraph 2 of the Federal Constitution and Article 13 of Federal Senate Resolution No. 20, of 1993).
[61] The Plenary of the Chamber of Deputies has jurisdiction to apply the penalties of temporary suspension from office, for a period not to exceed thirty days, and loss of office. To that end, following a disciplinary proceeding conducted by the Council of Ethics and Parliamentary Decorum, it shall vote on a proposal for disciplinary action, submitted to it by the Chair or any political party represented in the National Congress. The voting shall be by secret ballot and decided by an absolute majority of votes. (Article 55, paragraph 2 of the Federal Constitution and Article 14 of Resolution 25 (2001) of the Chamber of Deputies).
[62] Article 55 of the Federal Constitution specifies the general circumstances under which deputies or senators may be stripped of office.
[63] There are other oversight bodies both within and outside the Judicial Branch, such as the Superior Labor Court (Article 111-A, paragraph 2, II, of the Federal Constitution) and the National Public Prosecution Council (Article 130-A, of the Federal Constitution), respectively.
[64] Internal control of the Judicial Branch is exercised by the respective courts.
[65] Supplementary Law No. 35, of March 14, 1979, articles 40-48.
[66] On this point, however, the Committee is pleased to note Brazil’s readiness to make more progress in this area, as evidenced by the following statement made in its updated response to the questionnaire: “Notwithstanding the laws currently in force, the Federal Executive Branch is currently studying a preliminary bill that would constitute sweeping regulation of the question of conflicts of interest in public administration.” Brazil’s updated response to the questionnaire, p. 31.
[67] Unlike the codes of ethics, the Government (Administrative) Impropriety Act applies to all civil servants in every branch of government.
[68] Brazil’s updated response to the questionnaire, p. 33.
[69]
[70] Ibid.
[71] Ibid.
[72] Brazil’s updated response to the questionnaire, pp. 21-23.
[73] In its comments on the draft preliminary report, Brazil presented the following updated information on activities of the Public Ethics Commission: The Commission has a total of 1,275 public officials registered, and who are required to file income and asset declarations in accordance with the code of conduct. Of these, 1,221 had filed such declarations by December 31, 2005, (approximately 96%). From January to December 2005, the Public Ethics Commission issued 75 specific guidance notices and 2,671 general guidance notices, in addition to 529 notifications of failure to file income and asset declarations, and 228 requests for further information in the Confidential Declaration of Information.
[74] Under Article XVI of the Code of Professional Ethics for Public Servants in the Executive Branch of the Federal Government, an ethics commission is to be established in every organ of the federal public administration. In addition to the Public Ethics Commission, there are 122 sectoral ethics commissions in the Federal Executive Branch. Each sectoral commission is responsible for providing guidance and counsel on the professional ethics to be observed by civil servants in their treatment of persons and of public assets, and is empowered to hold hearings on guilt or censurable conduct. Nevertheless, save for the Public Ethics Commission and the Ethics Commission for Public Agents serving in the Office of President and Vice President of the Republic, the Committee has received no information reporting on the operation and scope of coverage of such bodies to answer questions or inquiries from civil servants concerning possible cases of conflict of interests and to monitor for observance of the standards of conduct.
[75] In accordance with Article 165 of the Constitution, the Brazilian budget system consists of three main instruments: the Annual Budget Law; the Law of Budget Guidelines; and, the Multiyear Plan. The multiyear plan, in effect for four years, establishes the guidelines, objectives, and goals of the federal government for capital expenditures and long-term programs. The law on budget guidelines is prepared annually, and is designed to describe the goals and priorities of the administration for the subsequent year and to serve as a guide in preparing the annual budget law. Based on the parameters defined in the law on budget guidelines, and in keeping with the multiyear plan, the annual budget law estimates revenue and fixes expenditures for the entire federal public administration for the subsequent year.
[76] In accordance with paragraph 3º of Article 1º, the Law on Fiscal Responsibility covers all government entities of the Union, States, Federal District, and Municipalities, and their indirect government branches and entities.
[77] The Executive Branch of the Union is responsible for consolidation, on a national level and by sector of government, and for presentation of the accounts of federal agencies for the previous fiscal year (Arts. 51 and 56).
[78] The same should be established in Article 2º of Law 8027 of 1990.
[79] With regard to civil liability, it proceeds from any acts or omissions that cause harm to the public treasury or third parties (Article 122). Monthly payroll deductions are permitted, after communication with the public servant, in the case of fraudulent harm caused to the public treasury where the assets for payment are not available (Article 122, paragraph 1º).
[80] On this same point, see Article 8º of Law 8027 of 1990.
[81] Article 10 also contains a list of conducts that could be engaged in by public agents who do not make adequate use of public funds, including the following ones:
a) facilitating or contributing in any way to incorporating into the private assets of a natural or legal persons any property, income, monies, or securities belonging to the national wealth;
b) allowing a private natural or legal person to use property, income, monies, or securities belonging to the national wealth;
c) obstructing the bidding process or unduly administering it; and
d) ordering or permitting execution of expenditures not authorized by law or regulations.
[82] According to the single paragraph of Article 1o, “the regime established by this Law shall be applicable to the following, in addition to organs of direct administration: special funds, autarchies; public foundations; public enterprises; semi-public companies; and, other entities under the direct or indirect control by the Union, States, Federal District, or Municipalities.”
[83] In this regard, Article 74 establishes an integrated system of internal control for the three branches of government.
[84]According to Article 75, this model of external control is followed by the States, Federal District, and Municipalities. Each court of accounts has specific procedures and its own jurisprudence.
[85] For example, the Court of Accounts of the Union is authorized to judge the accounts of administrators and others responsible for the public monies, property, and securities of the units of the branches of the federal government and the indirect government entities, and the accounts of those that caused the loss, diversion, or other irregularity that resulted in harm to the public treasury.
[86] Pursuant to Articles 58 and 60, persons responsible for the following are also liable for sanctions: a) acts involving a serious breach of a law or regulation pertaining to the accounts, finance, budget, operations, or assets; b) acts of illegitimate or anti-economic management which result in unjustified damage to public assets; c) failure to comply with reporting requirements or the decision of the court within the time established, and without justified cause; d) obstruction of the free progress of specific audits or inspections; e) unlawful withholding or concealment of procedures, documents, or information during inspections or audits conducted by the Court; and f) recurrence of noncompliance, in the opinion of the Court.
[87] The decisions of the Court providing for rejection of debit or fine constitute an extrajudicial executive certificate (Federal Constitution, Article 71, paragraph 3º).
[88] See Law nº 8472 of 1992.
[89] According to Article 8o, the following comprise the Internal Control System of the Federal Executive Branch: a) Office of the Comptroller General of the Union, as the central organ, responsible for regulatory guidelines and technical supervision of the entities comprising the System; b) the Internal Control Secretaries (CISET) of the Casa Civil, the Advocacia-Geral of the Union, the Ministry of Foreign Affairs, and the Ministry of Defense, as the sectoral organs; and c) internal control units of military commands, as sectoral units of the Internal Control Secretariat of the Ministry of Defense.
[90] The sanctions established in subparagraph II of Article 12 are as follows: “Full repayment or compensation for damage to or loss of goods or assets added illicitly to the national wealth, should that be the case, removal from public office, suspension of political rights for five to eight years, payment of a civil fine of up to two times the value of the damages, and prohibition from contracting with the government or from receiving benefits or fiscal incentives or credits, either directly or indirectly, or through a legal entity of which the responsible party is a majority partner, for a period of five years.”
[91] According to Article 83, when the perpetrators of the offenses defined in this Law, even if simply attempts, are civil servants / public agents, they are liable to loss of their position, employment, functions, or elected office, in addition to criminal sanctions.
[92] Head of the Ministério Público Federal.
[93] They include: appropriation of public property or revenue or abstraction or diversion for one’s own use or the use of others; undue use, for one own benefit or the benefit of others, of goods or assets, revenue, or public services; undue appropriation or abstraction of public revenue or funds; failure to render the annual financial management accounts of the Municipality to the City Council, or the entity stipulated in the State Constitution, according to established terms and conditions.
[94]
[95]
[96] Updated response of Brazil to the questionnaire, p. 42.
[97] Ibid.
[98] Ibid.
[99] Ibid., p. 62
[100] Ibid., p. 64.
[101] In the Federal Executive Branch, see also Decree No. 5,683 of January 24, 2006, which establishes that one of the functions of the Federal Internal Control Secretariat, is “to clarify, in coordination with the Office of the Magistrate General of the Union and the Secretariat for Corruption Prevention and Strategic Intelligence, the investigation of acts or occurrences of illegality or irregularity involving public or private agents in the use of federal public resources (Article 10, XX).
[102] See Articles 53 to 55 of Law 8443 of 1992.
[103] Established by Decree no 1171 of June 22, 1994.
[104] They include public and social assets (Article 5º, III, b of Supplementary Law No. 75/93).
[105] The concept of public official, for the purposes of penal law, is defined in Article 327, and includes any person who, even temporarily or without remuneration, holds a public office or post or performs a public function, including in parastate entities. This definition also includes persons who work for service providers under contract or agreement to perform functions typical of the Public Administration (Article 317, paragraph 1º of the Penal Code).
[106] This is understood as a breach of the duty of due diligence in the performance of one’s functions (Article 5º, single paragraph IV of Law 8027/90).
[107] This provision is applicable to the Chief of the Federal Executive Branch, the State Ministers, State Secretaries, and Governors.
[108] Updated response of Brazil to the questionnaire, p. 50.
[109] Ibid., p. 50.
[110] , available on November 15, 2005.
[111] Ibid., p. 50.
[112] Law No. 8730 of 1993 is applicable to the following public agents: a) President of the Republic; b) Vice-President of the Republic; c) State Ministers; d) members of the National Congress; e) members of the Federal Judiciary; f) members of the Ministério Público of the Union; and g) all persons who hold elected and other offices, posts, or positions of trust in the direct or indirect public administration or foundations, in any of the branches of the government of the Union (Article 1º).
[113] The declaration must be transcribed in the books of each organ, and the declarer must immediately send a copy to the Court of Accounts of the Union so that it can: “I- keep its own record of the property and income comprising the private assets of public officials; II- control the legality and legitimacy of that property and income, with the support of the internal control systems of each branch of government; III- take steps in keeping with its powers and, if appropriate, report to the competent authority any irregularities or abuses detected; IV- periodically publish the data and information in the declaration, by extract, in the Official Gazette of the Union; V- provide information requested in writing to any of the chambers of the National Congress or to the respective committees; VI- provide vouchers or certificates and information requested by any citizen, for the purpose of proposing action to annul an act harmful to public assets or government morality, in accordance with the law.” (Article 1º, paragraphs 1 and 2, subparagraphs I to VI).
[114] Article 2º of Law No. 8730/93 establishes that the declaration must contain a detailed list of the movable and immovable property, chattels, stocks and bonds, rights to automobiles, ships, or aircraft, and money or financial investments, either in or outside the country, that comprise the assets of the declarer and his dependents.
[115] Article 3º stipulates that failure to file the declaration at the time of investiture will prevent or nullify such act, if it occurs without this essential requirement. In other cases, failure to file said declaration, or failure to submit or a delay in submitting a copy to the Court of Accounts of the Union, or a deliberately incorrect declaration will be considered as follows, depending on the case:
a) an indictable offence for the President or Vice-President of the Republic, Ministers of State, and other authorities stipulated in the special law, in compliance with its provisions;
b) a political or administrative infraction, an offence of duty, or a serious breach of discipline, subject to loss of office, dismissal from one’s post or employment, or removal from ones functions, in addition to disqualification, for up to five years, from holding another office or post, position, or public employment, in accordance with specific legislation.
[116] In accordance with paragraph 1º of Article 13, “the declaration will cover tangibles, intangibles, chattel, money, securities, stocks and bonds, and any other type of goods and assets located in or outside the country and, if applicable, it shall also cover goods and assets of the spouse or companion, children, and other persons economically dependent on the declarant, with the sole exclusion of objects and instruments for household use.” As a way of filling the requirement to file the declaration of goods and securities, paragraph 4 of said Article establishes the option for the declarant of submitting an updated copy of the annual declaration of assets submitted to the Federal Revenue Office pursuant to legislation on the tax on income and revenue of all kinds.
[117] In the sphere of the Federal Executive Branch, internal control agencies are responsible for ensuring compliance with the requirement of filing declarations of property and securities (Article 6 of Decree No. 5483 of June 30, 2005).
[118] Article 9 establishes that the inquiry into assets is confidential and merely an investigative procedure, and is not punitive in nature. However, Article 10 stipulates that once said procedure has been concluded, the results are to be sent immediately to the Ministério Público Federal, the Court of Accounts of the Union, the Office of the Comptroller General of the Union, the Federal Revenue Secretariat, and the Council for Control of Financial Operations.
[119] The declaration also covers other situations that involve conflicts of interest, such as activities prior to taking office, concurrent activities, and family relationships.
[120] Brazil’s updated response to the questionnaire, p. 51.
[121] Ibid., p. 51.
[122] See also the information presented in the Section on “How the declarations are used” in Brazil’s updated response to the questionnaire, p. 53.
[123] On this point, however, the Committee is pleased to note Brazil’s readiness to make more progress in this area, as evidenced by the following statement made in its updated response to the questionnaire, which reports that “At the initiative of the Comptroller General of the Union, the executive branch has sent to Congress a draft bill (5,586/2005) that would amend the criminal code by adding an article making illicit enrichment a crime, when a public servant possesses assets or wealth incompatible with his income, or when he uses them in such a way as to imply ownership. The Congress has placed this draft bill on its priority list for consideration”. Brazil’s comments on the Preliminary Draft Report, at p. 38.
[124] Brazil’s updated response to the questionnaire, p. 54.
[125]It should be noted that the states and some municipalities have their own Court of Accounts, patterned after the Federal model (Article 75 of the federal Constitution).
[126] By Decree 3,591 of 2000, the CGU operates through the following organizational units: Magistrate Offices [Corregedorias], the Federal Bureau of Internal Control, the Internal Control Coordination Commission and the Office of the Ombudsman General of the Union (Decree No. 4,188 of March 28, 2002). According to the information provided by Brazil in its updated response to the questionnaire, “Apart from these offices, the Office of the Comptroller General of the Unit has regional units, located in each state of the Union and responsible for monitoring the corresponding decentralized offices of federal organs and entities and for audits and inspections to verify that federal revenues transferred to a state and its respective municipalities are being used properly.”
[127] Chief among the purposes of the system is to ascertain whether the federal government’s organs and agencies are managing their budgets, finances and assets lawfully and efficiently and whether private entities are using public funds lawfully and efficiently (Article 2 of Decree 3591 of 2000).
[128] Brazil notes in its updated response to the questionnaire, page 57, that “the federal executive branch’s internal control system uses audits and inspections to achieve its ends. The audit evaluates the government’s performance based on procedures and results and the use of public funds by private-law entities. The purpose of inspection, on the other hand, is to verify whether the specifications of government programs match their purpose, whether the programs are responsive to the needs they were intended to address, whether they are suitable for the targeted conditions and characteristics, and whether the control mechanisms are efficient.”
[129] Nonetheless, in its comments on the draft preliminary report prepared by the Secretariat, Brazil indicates that Decree No. 4,785 of 2003 has been revoked by Decree 5,683 of January 24, 2006, which conveys additional powers to the Office of the Comptroller General of the Union: a) to analyze, in coordination with the Federal Internal Control Bureau and the Corruption Prevention and Strategic Intelligence Bureau, any reports and complaints submitted to the Comptroller General of the Union (Annex I, Article 15 (II)); b) to conduct preliminary investigations, inspections, inquiries, including asset inquiries, and administrative disciplinary procedures (Annex I, Article 15 (III)); c) to refer to the Office of the Advocate-General of the Union and to the Public Prosecution those cases that involve government impropriety and those that may entail forfeiture of property, reimbursement to the public coffers or other measures within the jurisdiction of those offices; when necessary, the Comptroller-General’s Office may also refer matters to the Court of Accounts, the Secretariat of Federal Revenues of the Ministry of Finance, and the organs of the executive branch’s internal control system; when there is evidence of a crime, it may enlist the Federal Police Department of the Ministry of Justice and the Public Prosecutor’s Office, even in the case of patently slanderous reports or complaints. (Annex I, Article 2); d) to initiate or request, ex officio or following representations or complaints, any investigations, administrative disciplinary proceedings and other correction procedures to determine responsibility for irregularities committed within the Federal Executive Branch (Annex I, Article 15 (IV)); e) to determine the responsibility of public agents for unjustified failure to comply with recommendations of internal control and the decisions of external control (Annex I, article 15 (VII)). Also, it should be noted that Decree No. 5,683 of 2006 creates the Bureau for Corruption Prevention and Strategic Intelligence, which is responsible among other things for: a) Promoting greater public transparency (Art. 17, I); b) Promoting ongoing exchange of strategic intelligence with other bodies for preventing and combating corruption (Art. 17, III); c) Monitoring the financial situation of public agents of the Federal Executive Branch and watching for external signs of enrichment, identifying any incompatibility with their declared income (Art. 17, V); d) Encouraging civil society's participation in preventing corruption (Art. 17, VI); e) Acting to prevent conflicts of interest in the performance of public functions (Art. 17, VII); f) Compiling data and information on corruption prevention (Art. 17, IX).
[130] A system of the National Treasury Secretariat, which is part of the Ministry of the Treasury
[131] According to the information presented by Brazil in its updated response to the questionnaire, page 59: “Every organ of direct and indirect government is part of this system, which makes it possible for the Treasury Secretariat to obtain balance sheets with which to monitor the Union’s finances and budget. This system is also helpful to the Court of Accounts, which can access all the data the system stores ()”.
[132] Unnumbered decree of May 26, 1999, Article 2.
[133] Article 3 of Decree 4,081 of 2002.
[134] Chapter II of the Annex to Decree 1,171 of 1994.
[135] “Parliamentary investigation committees, which shall have the investigation powers inherent to the judicial authorities, in addition to other powers set forth in their respective regulations, are created by the House of Representatives and by the Federal Senate, jointly or severally, at the request of one-third of its members, for investigation of a certain fact and for certain period of time, and their conclusions shall if necessary be forwarded to the Prosecutor General to determine civil or criminal liability of the offenders.” (Article 58 (3) of the Federal Constitution).
[136] Updated response results of the questionnaire, pages 61-64.
[137] Updated response of Brazil to the questionnaire, page 61.
[138] Brazil notes that these numbers do not include complaints involving the use of federal public funds by municipal governments, which are treated differently, using audit or supervisory tools, for example.
[139] Updated response of Brazil to the questionnaire, page 62.
[140] Ibid., page 62.
[141] Ibid., page 63.
[142] Regulated by Law 4,717 of June 29, 1965.
[143] Including public and social property (Article 5 (III-b) of Supplementary Law 75/93).
[144] Such organizations include nonprofit legal entities whose objectives include promoting an ethic of peace, citizenship, human rights, democracy and other universal values (Article 1 and Article 3 (XI)).
[145] Complaints may be filed at the web site: .br/cgu/ouvidoria-geral/relação_de_ouvidorias
[146] In addition, there are ombudsman's offices in other agencies and entities of the federal government (the list of such offices is published at the web page of the Comptroller General's Office, .br). According to information provided by Brazil in its updated response to the questionnaire, page 67, “Most ombudsman’s offices have toll-free numbers (0800), but they also accept reports by mail, fax, e-mail and personal visits. In the case of those organs or entities that do not yet have an in-house ombudsman, citizens are to file the complaint or report with the Office of the Ombudsman General of the Union, which shall receive it and take steps to resolve the case exercising the authorities given to the Office of the Ombudsman-General”.
[147] Note also the web sites of the Office of the Comptroller General (.br), the Federal Court of Accounts (.br), the Ministry of Justice (.br), the Office of the Prosecutor General (.br), as well as the Transparency Portal (.br) mentioned in Section 1.2.2. These web sites provide public information on government spending and citizens may use them to file complaints, to check the status of proceedings, and to obtain other information.
[148] .br
[149] Methodology for the Review of the Implementation of the Provisions of the Inter-American Convention against Corruption selected within the framework of the First Round, Chapter V, D, (SG/MESICIC/doc.21/02).
[150] Updated response of Brazil to the questionnaire, pp. 69-70.
[151] Ibid, p. 69.
[152] Ibid, p. 70.
[153] According to the updated response of Brazil to the questionnaire, page 71: “The information is to be requested directly from the agency that is its repository. If personal information is withheld, the individual in question may file a petition of habeas data. In matters of public interest, the appropriate action is a mandado de segurança (writ of mandamus).”
[154] According to information provided by Brazil in its updated response to the questionnaire, page 72: “The right of petition is the right to submit written statements to any public authority, in defense of one’s rights, the Constitution, the law or the general interest. Both natural persons and legal entities may avail themselves of this right, and there is no rigid procedure prescribed. Law No. 9,051, of May 18, 1995, contains provisions on the issuance of records that enable an interested party to protect his or her rights and clarify situations. Those certifications must be issued within 15 (fifteen) days. In filings, interested parties must explain the reasons for the request.”
[155] Law No. 9,507 of November 12, 1997 establishes the procedure for habeas data. According to Article 7, a writ of habeas data allows the applicant to know the personal information on him in the records or databanks of government agencies or public entities; to correct data, as an alternative to pursuing the confidential judicial or administrative route; and to comment on data that, while factual, are the subject of legal or informal dispute settlement proceedings.
[156] Article 5 (LVII) of the Constitution, regulated by Law 9265 of February 12, 1996, provides that habeas data actions are free of charge, as are other acts necessary for the exercise of citizenship, in particular requests for information submitted to any level of government for the purpose of defense or complaint against administrative irregularities (Article 1 (III) of Law 9265/96).
[157] That commission will have the power to review decisions to deny access to even the most highly classified public documents, when so requested by any person who demonstrates a legitimate interest (Article 6 (3)).
[158] Article 16 does not apply to cases where bidding is waived because it might compromise national security, as determined by Presidential decree on the advice of the National Defense Council (Article 24 (IX)).
[159] Further information on the budget process is available at the web pages of the Federal Budget Office of the Ministry of Planning () and at the Siga Brasil portal of the Federal Senate ().
[160] Updated response of Brazil to the questionnaire, p. 73.
[161] Article 39 provides that “simultaneous tenders are those with similar objectives that are to be performed at intervals not exceeding 30 days; successive tenders are those, also with similar objectives, for which the bidding documents are published more than 120 days after the term of the contract resulting from the previous tendering”.
[162]
[163] Updated response of Brazil to the questionnaire, pages 74-75.
[164] Ibid., page 75.
[165]
[166] According to Article 2, these must be submitted in writing or electronically, duly identified in a proper format, or by telephone, with identification of the author.
[167] The web site of the Chamber of Deputies has a Section devoted to public participation, offering discussion and chat forums with deputies on certain bills, as well as instructions on how to submit a legislative proposal ().
[168] According to information provided by Brazil in its updated response to the questionnaire, page 77, “every organ of government has an Ombudsman’s Office, which provides a channel of direct communication between the citizen and government. It is an interlocutor with society and is responsible for receiving claims, complaints, suggestions and laudatory remarks, thus encouraging citizens’ participation in overseeing and evaluating the delivery of public services.” A list of ombudsman’s offices in the federal government is available at .br (link to “General Ombudsman”)
[169] It should also be noted that all draft laws and other bills before Congress are posted at the web sites of the respective legislative chambers (.br and .br), together with detailed information on their processing, including amendments, opinions and requests submitted. That information can also be obtained via a free telephone line (0800). In addition, a database on Federal Brazilian legislation since 1889 can be accessed at the web site of the President’s Office ().
[170] To guarantee democratic municipal management, Article 43 also requires the following instruments to be used, among others: “I: collegial urban political bodies, at the national, state and municipal levels; II: debates, hearings and public consultations; III: conferences on matters of urban interest at the national, state and municipal levels; IV. Popular initiative to propose laws and plans, programs and projects for urban development”.
[171] Updated response of Brazil to the questionnaire, pages 78-79.
[172] Ibid.
[173] See Section 4.3.1.
[174] The Public Ethics Commission publishes the minutes of its meetings, as well as a series of reports on its activities, at the web site .br/etica
[175] .br/transparência/default.asp
[176] According to information provided by Brazil in its updated response, pages 76-77, “ Other sites, too, make information on government spending available to the public, thereby making those expenditures more transparent. Citizens can use those sites to file complaints, check the progress of cases, and obtain other information: .br/cgu; pgr..br; .br (link: ouvidora “ombudsman”); .br (link: fale conosco); .br/webstj/institucional/ouvidoria; .br/defensoria/default.htm; .br.”
[177] For further information, see the updated response of Brazil to the questionnaire, page 81.
[178] Updated response of Brazil to the questionnaire, pages 79-80.
[179] Updated response results of the questionnaire, page 82.
[180] According to information presented by Brazil, the following bilateral agreements are in force: Colombia, South Korea, the United States of America, France, Italy, Peru, and Portugal. Agreements with Angola, Canada, China, Cuba, Lebanon, United Kingdom, Switzerland, Suriname, and the Ukraine, as well as the Inter-American Convention on Mutual Assistance in Criminal Matters are pending approval in the National Congress. The agreement with South Korea is pending ratification. In addition, Brazil has signed agreements with Nigeria and with the Community of Portuguese-Speaking Countries and presented proposals for agreements to 33 countries.
[181] Brazil’s updated response to the questionnaire, p. 84.
[182] The Department for Recovery of Assets and International Legal Cooperation (DRCI), created by Decree n.º 4991 of February 18, 2004, comes under the National Justice Secretariat (SNJ) of the Ministry of Justice. The principal functions of the Department are to analyze the relevant information, identify threats, define efficient and effective policies, and develop a culture for combating money laundering. The objective of these functions is to recover assets sent abroad illegally and the proceeds of criminal activities, such as those derived from drug trafficking, illegal arms trafficking, corruption, and diversion of public monies. In addition, the DRCI is responsible for international legal cooperation agreements in both criminal and civil matters, and is the central authority for Brazil in the exchange of information and judicial requests.
[183] Brazil’s updated response to the questionnaire, p. 83. Brazil notes, however, that the Executive Branch is in the process of drafting a bill on the subject. The bill will cover all forms of technical cooperation of any kind: letters rogatory, confirmation of foreign sentences, legal assistance, extradition.
[184] Specifically, the Inter-American Convention on Mutual Assistance in Criminal Matters.
[185] Brazil’s updated response to the questionnaire, pp. 84-85.
[186] Ibid., p. 85.
[187] Ibid., p. 86.
[188] Brazil’s updated response to the questionnaire, p. 87.
[189] Verbal Note No. 96 from the Permanent Mission of Brazil to the OAS.
[190] Updated response of Brazil to the questionnaire, p. 90.
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