Content uploaded by Túlio Felippe Xavier Januário
Author content
All content in this area was uploaded by Túlio Felippe Xavier Januário on Jan 28, 2022
Content may be subject to copyright.
INSTITUT ZA UPOREDNO PRAVO
INSTITUTE OF COMPARATIVE LAW
INSTITUT ZA KRIMINOLOŠKA I SOCIOLOŠKA ISTRAŽIVANJA
INSTITUTE OF CRIMINOLOGICAL AND SOCIOLOGICAL RESEARCH
PRAVOSUDNA AKDADEMIJA
JUDICIAL ACADEMY
VI MEĐUNARODNI NAUČNI SKUP
VI International scientic thematic conference
INSTITUCIJE I PREVENCIJA FINANSIJSKOG
KRIMINALITETA
INSTITUTIONS AND PREVENTION OF
FINANCIAL CRIME
- Tematski zbornik radova međunarodnog značaja -
- ematic Conference Proceedings of International Signicance-
Urednici/Editors:
Jelena Kostić
Aleksandar Stevanović
Marina Matić Bošković
Beograd, decembar 2021. godine
Belgrade, december 2021
Institucije i prevencija nansijskog kriminaliteta, VI međunarodni naučni skup
Institutions and prevention of nancial crime, VI International Scientic Conference
Izdavač/Publisher:
Institute of Comparative Law, Belgrade
Institute of Criminological and Sociological Research, Belgrade
Za izdavača/For publisher:
Prof. dr Vladimir Čolović
dr Ivana Stevanović
Recenzenti/Reviewers:
Prof. dr Nataša Mrvić Petrović (Serbia)
Prof. dr Ioana Vasiu (Romania)
dr Jovan Ćirić (Serbia)
Prof. dr Dražen Cerović (Montenegro)
Naučni odbor/Scientic Committee:
Organizacioni odbor/Organizing Committee:
Prof. dr Vladimir Čolović, Institut za uporedno pravo (Institute of Comparative Law, Belgrade, Serbia)
dr Ivana Stevanović, Institut za kriminološka i sociološka istraživanja (Institute for Criminological and
Sociological Research, Belgrade, Serbia)
Nenad Vujić, Pravosudna akademija (Judicial Academy, Belgrade, Serbia)
dr Jelena Kostić, Institut za uporedno pravo (Institute of Comparative Law, Belgrade, Serbia)
Aleksandar Stevanović, MA, Institut za kriminološka i sociološka istraživanja (Institute for Criminological
and Sociological Research, Belgrade, Serbia)
dr Marina Matić Bošković, Institut za kriminološka i sociološka istraživanja (Institute for Criminological
and Sociological Research, Belgrade, Serbia)
Radni jezici konferencije/Ocial Languages:
engleski i srpski/english and serbian
Tehnički urednik/Technical editor:
Ana Ranković Lukman
Štampa/Printer:
Sajnos doo
Tiraž/Printed in:
200 primeraka (200 copies)
Prof. dr Sun Wanhuai (China)
Prof. dr Piotr Mikuli (Poland)
Prof. dr Gordana Gasmi (Serbia)
Prof. dr Mihajlo Vučić (Serbia)
dr Mario Reljanović (Serbia)
Doc. dr Hana Kovacikova (Slovakia)
Prof. dr Ana Lucia Valvo (Italia)
Doc. dr Ana Đanić Čeko (Croatia)
Prof. dr Anita Rodina (Latvia)
Prof. dr Ondrej Blažo (Slovakia)
Prof. dr Sándor Madai (Hungary)
Prof. dr Pudovočkih Jurij (Russia)
INSTITUT ZA KRIMINOLOŠKA I SOCIOLOŠKA ISTRAŽIVANJA ISBN 978-86-80756-44-8 (IKSI)
INSTITUT ZA UPOREDNO PRAVO ISBN-978-86-80186-78-8 (IUP)
Beograd, 2021
Belgrade, 2021
SADRŽAJ
PREDGOVOR .......................................................................................................................... 9
Dmitriy V. Galushko
MEĐUNARODNA SARADNJA U BORBI PROTIV FINANSIJSKOG
KRIMINALITETA U KONTEKSTU PROCESA EVROPEIZACIJE ............................ 27
Arben Murtezić
KRIPTOVALUTE: IZAZOV U PREVENCIJI
FINANSIJSKOG KRIMINALITETA .................................................................................. 29
Ana Vuković
ODGOVORNOST U ZAŠTITI PODATAKA O LIČNOSTI I
PREVENCIJA ZLOUPOTREBE I KRIMINALITETA .................................................... 48
Nikola Paunović
PRIMENA FINANSIJSKE FORENZIKE U BORBI PROTIV
FINANSIJSKOG KRIMINALITETA U SAJBER PROSTORU ...................................... 61
Filip Mirić, LL.D., Valentina Ranaldi, PhD
ULOGA FINANSIJSKIH FORENZIČARA I EUROPOLA
U SUZBIJANJU FINANSIJSKOG KRIMINALITETA .................................................... 75
Dragan Jovašević
KAZNENA POLITIKA SUDOVA ZA
PORESKA KRIVIČNA DELA U SRBIJI ............................................................................ 77
Marko S. Novaković
DA LI STEPEN RIZIKA I KORIŠĆENJA KRIPTOVALUTA
ZA PRANJE NOVCA I FINANSIRANJE TERORIZMA
OPRAVDAVA NJIHOVU ZABRANU? .............................................................................. 93
Matheus de Alencar e Miranda
Leonardo Simões Agapito
Túlio Felippe Xavier Januário
USPON I PAD KONTROLE KORUPCIJE U BRAZILU:
Javne institucije, korporacije, usklađenost i
stanje nakon “Car Wash” akcije .................................................................................... 139
Ljubinko Mitrović, Gojko Pavlović
ULOGA AGENCIJE ZA PREVENCIJU KORUPCIJE I
KOORDINACIJU BORBE PROTIV KORUPCIJE U BORBI
PROTIV KORUPCIJE U BOSNI I HERCEGOVINI ..................................................... 141
Veljko Ikanović
EFIKASNOST PRAVOSUĐA U PROCESUIRANJU
KORUPCIJE U BOSNI I HERCEGOVINI ...................................................................... 157
Zoran Pavlović, PhD, Istvan Laszlo Gal, PhD
POSLOVNI CIKLUS I KRIVIČNO PRAVO ............................................................ 184
Manfred Dauster
JEZIČKI PROBLEMI U REŠAVANJU SLOŽENIH
(KRIMINALITET BELOG OKOVRATNIKA) SUDSKIH PREDMETA:
IZVORI GREŠAKA I MOGUĆNOSTI ZA NJIHOVO PREVENIRANJE ................ 203
Aleksandar Stevanović, Laura Maria Stănilă
NEZAKONITO BOGAĆENJE KAO KRIVIČNO DELO: MOGUĆNOST
IMPLEMENTIRANJA U NACIONALNA ZAKONODAVSTVA ................................ 217
Jasmina Igrački
KRIVIČNA DELA PORESKE UTAJE
-KRIVIČNOPRAVNI I KRIMINOLOŠKI ASPEKT ..................................................... 219
TABLE OF CONTENTS
FOREWORD ........................................................................................................................... 10
Dmitriy V. Galushko
INTERNATIONAL COOPERATION IN THE FIGHT
AGAINST FINANCIAL CRIMES IN THE CONTEXT OF THE
PROCESS OF EUROPEANISATION ................................................................................ 11
Arben Murtezić
CRYPTOCURRENCIES: A CHALLENGE IN
FINANCIAL CRIME PREVENTION ................................................................................. 37
Ana Vuković
RESPONSIBILITY IN THE PROTECTION OF PERSONAL
DATA AND PREVENTION OF ABUSE AND CRIME .................................................. 39
Nikola Paunović
THE APPLICATION OF FINANCIAL FORENSICS IN
COMBATING FINANCIAL CYBERCRIMES .................................................................. 49
Filip Mirić, LL.D., Valentina Ranaldi, PhD.
THE ROLE OF FINANCIAL FORENSIC EXPERTS AND
EUROPOL IN COMBATING FINANCIAL CRIME ........................................................ 63
Dragan Jovašević
PENAL POLICY OF COURTS OF TAX CRIMES IN SERBIA ...................................... 91
Marko S. Novaković
CRYPTOCURRENCIES AND COMPARATIVE
ANALYSIS OF THEIR LEGAL REGULATIONS ........................................................... 107
Matheus de Alencar e Miranda
Leonardo Simões Agapito
Túlio Felippe Xavier Januário
RISE AND FALL OF CORRUPTION CONTROL IN BRAZIL:
Public Institutions, Corporations, Compliance,
and the “Post-Car Wash Operation” ................................................................................. 109
Ljubinko Mitrović, Gojko Pavlović
THE ROLE OF THE AGENCY FOR THE PREVENTION
OF CORRUPTION AND THE COORDINATION OF THE FIGHT
AGAINST CORRUPTION IN THE FIGHT AGAINST
CORRUPTION IN BOSNIA AND HERZEGOVINA ................................................... 154
Veljko Ikanović
EFFICIENCY OF THE JUDICIARY IN PROCESSING
CORRUPTION IN BOSNIA AND HERZEGOVINA ................................................... 170
Zoran Pavlović, PhD, Istvan Laszlo Gal, PhD
BUSINESS CYCLES AND CRIMINAL LAW .................................................................. 173
Manfred Dauster
LANGUAGE PROBLEMS IN COMPLEX (WHITE-COLLAR CRIMINAL)
PROCEEDINGS: SOURCES OF ERRORS AND ERROR PREVENTION ................ 185
Aleksandar Stevanović, Laura Maria Stănilă
ILLICIT ENRICHMENT AS A CRIMINAL OFFENSE: POSSIBILITY OF
IMPLEMENTATION IN THE NATIONAL CRIMINAL LEGISLATIONS .............. 205
Jasmina Igrački
CRIMINAL OFFENSES OF TAX EVASION-CRIMINAL
LAW AND CRIMINOLOGICAL ASPECT ..................................................................... 230
9
PREDGOVOR
Prilikom otkrivanja i dokazivanja nansijskog kriminaliteta neophodna
je blagovremena i adekvatna saradnja različitih državnih institucija i privrednih
organizacija. Prikupljanje dokaza protiv njihovih izvršilaca zahteva korišćenje
različitih dokaznih tehnika i metoda. Zbog toga je osim policije, javnog tužilaštva
i sudova u cilju njihovog otkrivanja neophodno da deluju i banke, društva za
osiguranje, Poreska uprava, Uprava carina, Agencija za sprečavanje korupcije,
vrhovna revizorska institucija, Komisija za hartije od vrednosti itd. Radi dobijanja
odgovora na pitanja koja postoje u praksi, a tiču se međusobne saradnje navedenih
institucija i pravosudnih organa, odlučili smo da tema ovogodišnjeg zbornika bude
„Institucije i prevencija nansijskog kriminaliteta“.
Poslednjih godina, izvršioci krivičnih dela koja se mogu svrstati u nansijski
kriminalitet koriste nove tehnike i metode kako bi prikrili izvršenje ne samo tih
krivičnih dela, već i imovinsku korist stečenu njihovim izvršenjem, a koju je moguće
čuvati i u kriptovalutama. To nameće mnogo pitanja na koje teorija i praksa tek
treba da daju adekvatan odgovor.
Međunarodni karakter ovogodišnje konferencije i zbornika, kao i rezultati
istraživanja koji su sadržani u objavljenim radovima, trebalo bi da doprinesu razmeni
iskustava i znanja iz oblasti suzbijanja nansijskog kriminaliteta. Ovogodišnja
konferencija okupila je naučnike i praktičare iz Rusije, Savezne Republike Nemačke,
Mađarske, Rumunije, Italije, Brazila, Portugala, Bosne i Hercegovine i Srbije, a
koji se u svojim radovima bave kako fenomenološkim, tako i etiološkim aspektom
nansijskog kriminaliteta. Nadamo se da će sugestije sadržane u radovima učesnika
konferencije dati odgovor ili bar smernice za rešavanje nekih spornih pitanja
koja postoje u praksi ili predstavljati osnov za dalja naučna istraživanja u oblasti
prevencije nansijskog kriminaliteta.
Beograd, 3. decembar 2021.
Dr Jelena Kostić
Aleksandar Stevanović, MA
Dr Marina Matić Bošković
10
FOREWORD
Detection and evidence gathering in cases of nancial crime requires timely
and adequate cooperation of dierent state authorities and private/commercial
entities. In addition, collection of evidence against perpetrators of nancial crime
demands application of diverse evidence technics and methods. Due to complexity
of nancial crime detection involves police, public prosecutors and courts, but also
banks, insurance companies, tax administration, custom, agency for prevention of
corruption, supreme audit institution, securities commission, etc. To get answer
on questions that are raised in the practice and relates to the cooperation of all
relevant institutions and judicial bodies, we decided to dedicate this year’s collection
to topic “Institutions and prevention of nancial crime”.
In recent years, perpetrators of criminal acts that can be classied as nancial
crime have used new technics and methods to cover up not only the commission
of these crimes, but also the proceeds of crime, which can be stored in crypto
currencies. is trend raises many issues to which theory and practice have yet to
provide adequate answer.
e international character of this year’s conference and collection of
papers, as well as the results of the research contained in the published articles,
should contribute to the exchange of experiences and knowledge in the eld of
combating nancial crime. is year’s conference brought together scientists and
practitioners from Russia, the Federal Republic of Germany, Hungary, Romania,
Italy, Brazil, Portugal, Bosnia and Herzegovina and Serbia, who deal with both
the phenomenological and etiological aspects of nancial crime. We hope that the
suggestions contained in the papers of the conference participants will provide an
answer or at least guidelines for resolving some controversial issues that exist in
practice or be the basis for further scientic research in the eld of nancial crime
prevention.
Belgrade, 3 December 2021.
Dr Jelena Kostić
Aleksandar Stevanović, MA
Dr Marina Matić Bošković
109
RISE AND FALL OF CORRUPTION CONTROL IN BRAZIL:
Public Institutions, Corporations, Compliance, and the
“Post-Car Wash Operation”
Matheus de Alencar e Miranda*
Leonardo Simões Agapito **
Túlio Felippe Xavier Januário ***
e paper is dealing with the main corruption problems and institutions in
charge of prevented it in Brazil. First of all, normative legislation will be presented - the
main criminal laws and criminal procedure laws. In the second part of the paper, the
authors analyze the Car wash Operation which disclose several articulations between
companies and political agents in dierent levels of administration and legislative
houses. Later, it is explained how the concept of corruption has evolved, with further
details regarding dierent corporations and their respective directors. Finally, the
focus is on the post-Car wash Operation period. In this part, authors explain dierent
targets that were achieved when new political gures emerged and even sentences
were reviewed as exaggerated and abusive. Accordingly, it became clear that Brazilian
corruption criminal policy rose from a legislative change that allowed the criminal
justice system to go further. Unfortunately, strategic limitation for structural changes
and control development accompanied with judges and prosecutors’ moral beliefs
prevented further success in preventing corruption in Brazil.
KEYWORDS: Brazilian law; corruption; Car wash Operation; criminal policy;
corruption control.
* Ph.D, Candidate in Criminal Law at the State University of Rio de Janeiro – UERJ, Brazil,
e-mail: matheus.alencarm@gmail.com.
** Ph.D, Student in Latin American Integration at the University of São Paulo – USP, Brazil,
e-mail: leoagapito@gmail.com.
***
Ph.D, Fellow of the Fundação para a Ciência e a Tecnologia – FCT - at the University of Coimbra, Portugal,
e-mail: tuliofxj@gmail.com.
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
110
INTRODUCTION
In Brazilian politics, corruption has always played a historical role. In the
Brazilian Empire, there was a popular quatrain that said, “those who still a little
are thieves/ those who still a lot are barons”1. e history of our Republic has been
marked by promises that privileges will end, and the ‘old ways’ will be overcome.
As examples of vows to change this status quo, Jânio Quadros (President of Brazil
from January to August of 1961) had a campaign jingle that named him as “little
broom” (Vassourinha), implying that he was the one who would “clean up” the
Brazilian politics, and the rst democratically elected President aer the military
regime (1964-1984), Fernando Collor (President of Brazil from 1990 to 1992), used
to refer to himself as the “Maharajah hunter” (Caçador de marajás), during his
presidential campaign. Both didn’t even end their terms, surrounded by, or involved
in, corruption scandals. Many authors, including jurists, in dierent moments,
described corruption as “endemic” or “systemic” in Brazil, a culture failure or habit.
As pointed out by Nieto Martin (2013: 191), the judicial debate and the
socio-moral responsibility created a common perception that corruption is a matter
of political parties and public agents. Such perception created two main issues: (a)
the lack of instruments for internal control; (b) the inability to identify corporations
and specic agents that promote illegalities, as well as the main beneciaries of
these schemes. At some point, corruption was even defended as important and
necessary to business if companies intended to grow overseas.
However, in the last two decades, the criminal policy has changed, urged
by many scandals in the United States and Europe. Companies have outgrown
the federal or state regulatory capabilities and this complexity has demanded
multinational cooperation and their complexity demanded international cooperation.
erefore, OECD and UN started to promote dierent global agendas for sustainable
development through ethical business. In criminal law and criminal procedure
debates, Tiedemann, Arroyo Zapatero, and Nieto Martín, as many others, brought
a new perspective for dogmatic and criminal policy reecting on Euro-delicts
and EU-members’ cooperation (De La Mata Barranco, Hernández, 2013: 143).2
is movement made by central countries has changed corruption conception in
the Latin American countries, urging to a new model of economic criminal law
(Agapito, Alencar e Miranda, Januário, 2020: 293-297).
1 e original popular quatrain is: “Quem furta pouco é ladrão/ quem furta muito é Barão/ quem furta mais
e esconde/ passa de Barão a Visconde” (Carvalho, 1987: 89).
2
e Group of States against Corruption (GRECO), created by the European Council has also been important
to enforce a new perception of corruption, motivating dierent countries to align their criminal policies.
111
is new perspective of corruption as an economic issue, promoting
inequality, and threatening democracies, certainly has a more solid basis, oering
concrete examples and data, increasing public awareness. However, all this movement
could not overcome the classic view of corruption as a moral issue (Saad-Diniz, 2017:
725), which still stigmatizes certain groups, people, and activities. So, the moral
element not only creates a license to exceed legal limits, but may also “overexcite”
the public agents in their “ght against corruption”. is is exactly the context of
rise and fall of corruption control in Brazil.
In 2005, the Brazilian political scenario was marked by the Mensalão scandal,
which involved dierent political parties that had been bribed to vote for the
government’s agenda. is case was investigated by a special commission composed
by senators and federal deputies in the same year. In 2012, the Brazilian Supreme
Federal Court judged 37 public and private agents, with 25 of them condemned
by bribery, money laundering, criminal association, multiple frauds, and undue
appropriation. is case brought a new perspective to public corruption, and the
votes of Ministers, transmitted by national television, went on for months. It had
become the greatest criminal judgment until then, demonstrating the importance
of compliance programs and the limitation of many legal concepts, as organized
crime and money laundering. At least ve new laws were enacted within this context
(2011-2013), increasing the judicial competence to produce proves.
In 2014, the Car Wash Operation3 started to disclose several articulations
between companies and political agents in dierent levels of administration and
legislative houses. It became the “new biggest scandal” and the most recent criminal
procedure instruments were largely employed, especially the plea bargain and
collaboration agreements with corporations and their directors. ese investigations
evolved in multiple levels and agencies, in dierent states, until they reached the
candidate leading the Presidential race. is election was held in 2018 and, next,
the Car Wash Task Force shrank, aer its most famous judge accepted to be the new
Minister of Justice. e end of this operation is marked by President Bolsonaro’s
frequent talk, that is: “the corruption has ended!”, while dierent scandals have
surrounded him and his family. During the Covid-19 pandemic, a new serious
investigation was undertaken by a group of senators. Aer its conclusion, an
unwillingness to carry out the next investigative procedures was perceived on the
part of the Attorney General, nominated by the same Bolsonaro, against Procecutors’
desire. e moral perspective of corruption is reduced, here, to a personal populist
3 We have used here the literal translation for “Operação Lava-Jato”. However, it’s important to mention that
the word “Lava-Jato” carries another meaning in Brazilian Portuguese, equivalent to “really fast clean-up”.
Both meanings are good references for the operation name: the original one because the operation was
started because of an investigation of a net of gas stations/car wash used to move illicit money of a criminal
organization and the second meaning because it’s a reference to the really high speed of money-laundering
in the corruption schemes.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
112
level, in a way that the public gures can still assume a savior’s messianic role, just
like Vassourinha and Caçador de Marajás.
e report elaborated by Sally S. Simpson, Melissa Rorie, Mariel Alper, and
Natalie Schell Busey (2014: 40), points out that punitive sanctions and law has had
a low impact on corruption deterrence, especially when focused on personal level.
On the other hand, it says, regulatory policies and multiple interventions would
certainly achieve a signicant eect. In conclusion, corruption is not a matter of
morality or punishment, but a matter of control and authority sharing. By this, the
current essay intends to demonstrate how the Car wash Operation has resulted
in no advance for Brazilian criminal policy, without any institutional literacy on
corruption or judicial permanent development. is is evidenced by two articulated
movements: a) the judicial main role played on the “ght against corruption”,
including systematic violations of fundamental rights; b) the judicial roll-back,
indicated by dierent disarticulations, legal reforms, and Supreme Court’s decisions.
According to Transparency International (2019: 3):
“ Brazil had become an inspiration for many countries as a successful
case of confronting systemic corruption and impunity. e reversal
of this progress will therefore have an impact beyond its borders,
particularly in Latin America.”
e report mentions the initial success of Car wash aer “adoption of key
anti-corruption laws and the strengthening of law enforcement and other bodies at
the federal level…” (Transparency International, 2019: 3). However, it also reports
that all advances have changed fast, since “decisions by the government, parliament
and the judiciary also threaten Operation Carwash…” (Transparency International,
2019: 3). ese advances became questionable, for being so vulnerable to small
changes (particularly, the change of main characters). Transparency International
perception of anti-corruption systems is based on short-term actions, such as
legislative changes, not on expectation of their real impact or measures. e main
hypothesis of the present essay is that those changes were actually a convenient
manipulation of institutions for dierent objectives. Corruption prevention depends
on institutional resilience and surveillance, which means a long-term change.
First, it will be presented the main criminal laws and criminal procedure
laws promulgated, demonstrating the inuence of common law institutes. en,
we will approach the Car wash Operation and how the concept of corruption has
evolved, including dierent corporations and their respective directors. Finally, we
will focus on the post-Car wash Operation period, in which dierent targets were
achieved, new political gures emerged, and even the sentences were reviewed as
exaggerated and abusive. In view of this, it became clear that Brazilian corruption
113
criminal policy rose from a legislative change that allowed the criminal justice
system to go further, however, the moral argument used by prosecutors and judges
turned out to be the Achilles’ heel of their work, together with strategic limitation
for structural changes and control development.
1. BRAZILIAN LAWS ON CORRUPTION IN THE LAST DECADE
Brazilian criminal code uses the term corrupção (corruption) to dene the
bad inuence over a child, when including him or her in a criminal action, as fraud
or the (Article 218 – Corruption of Minors). e same term is also used to refer
to drinking water pollution (Article 271), food contamination (Article 272), and
medical supplies violation (Article 273). e term corruption in Brazilian Portuguese
means deterioration. However, bribery is dened as corrupção only, without
specications (Articles 317 and 333). Many other actions of public corruption
receive dierent names, as prevaricação (prevarication), a crime perpetrated by a
public agent when not doing or delaying, unduly, his activities or achieving them
against the Law to satisfy his personal needs or interests (Article 319), tráco de
inuência (inuence peddling), to provide bribery to exert inuence over a public
agent (Article 332).
Before Carwash Operation, specially, the legal frameworks that deserve
attention are: (1) the Act 12.527/2011, the Access to Information Law; (2) the
Act 12.683/12, that changed Brazilian Anti-Money Laundering system; (3) the
Act 12.846/2013, the Brazilian Antibribery Law for Corporations; and (4) the
Act 12.850/12, the Criminal Organizations’ Law. Contemporary to the Carwash
operation, it is worth highlighting the (5) Act 13.303/2016, the State Companies
Law. More recently, a new law was passed, the (5) Act 13.303/2016, the Public
Procurement Law, which will be approached at the end of this essay.
e (1) Act 12.527/2011 is known as Access to Information Law. It is the
Brazilian legal framework that regulates access to information provided for in the
Brazilian Constitution, besides amending other legal frameworks that set state
nancial obligations and public ocers’ duties. According to Article 37 of the
Constitution, publicity is one of the principles of public administration. With the
Act 12.527/11, condentiality was delimited as exception, regardless of the public
sphere or the agency, dening maximum deadlines that need to be publicly justied
by public administration.
Enacted in the rst year of Dilma Rousse Government, the law brought
the concept of transparency to public law (Michener, 2018: 611). e focus was
primarily the strengthening of democratic institutions and the compliance with
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
114
Constitution. With its enactment, there would be a commitment of transparency
by the State, which would be capable of promoting the informal
4
social control over
the government accounts and actions, with potential to prevent mismanagement
and corruption from a more general and institutional perspective.
is strengthening of State institutions, however, didn’t prove to be
promptly sucient. In the face of a context of (a) street demonstrations in June
2013 (moralizing movement) in Brazil, and (b) international pressure for approval
of a regulation against bribery practiced by companies, aer the approval of the
United Kingdom Bribery Act (international standardization of International Penal
Law), it was necessary the enactment of (2) the Act 12.846/2013, the Brazilian
Antibribery Law for Corporations. Since the United Kingdom was the last developed
country resistant to regulation, when its acceptance occurred, pressure turned to
developing countries. e demand to comply their legislations with the terms of
the Convention on Combating Bribery of Foreign Public Ocials in International
Business Transactions (OECD) has increased dramatically.
In less than a year, Brazil also complied with the regulations.
e (2) Law 12.683/12 presented two new challenges to Brazilian Judiciary. First,
the Law withdrew the list of background crimes from the Art. 1st, which restrained
the possible applications of the crime. In this sense, in the absence of legal provision, it
would be le to courts to delineate the possibility of “self-laundering” (Callegari, 2001:
75) and to elucidate the analysis criteria of the background crime (Fernandes, 2014)
and clarify criteria to dierentiate money laundering from other similar malpractices
such as tax evasion and tax avoidance. (Rodrigues, Law, 2013: 249).
e second challenge came in the overhaul of Articles 9th to 12th, amplifying
the list of people compelled to notify control agencies about suspicious transactions,
and expanding, also, the kinds of penalties foreseen in case of non-compliance.
erefore, individual service providers were also obliged to know their clients
and send information to the “Conselho de Valores Imobiliários – CVM” (Brazilian
Securities and Exchange Commission) and to the COAF (Brazilian Financial
Intelligence Unit). e Judiciary was provoked, then, to redene under clear
criteria the dierence between administrative violations and joint perpetration in
the money-laundering crime itself. (Pires, 2015: 178 & ss.).5
4 We use this terminology as a synonym of every kind of control of bad practices that is not done by the State
itself. e terminology is taken from: Saad-Diniz, 2019, passim.
5
Among the categories that were included, were the lawyers (Art. 9th, XIV), that so provide consulting
services. e National Confederation of Liberal Professionals (representing accountants and advisers in
general) led the Direct Unconstitutionality Action n. 4.841 by reason of professional condentiality, which
would be undermined before the demands imposed by the new draing of Art. 9th, XIV. In the same period,
for the same reasons, the Brazilian Bar (OAB) decided to le another Action on lawyers’ behalf, but expressing
themselves against ADIn n. 4.841, for considering that the other categories of liberal professionals wouldn’t
need such privilege. So far, the referred Action hasn’t been judged. Responding to OAB public demonstrations,
115
is Law was passed a little over a month before the beginning of the
judgment of the Penal Action 470/MG by the Supreme Court, pointing, therefore,
the importance of money laundering in corruption schemes.
6
e Law reform didn’t
have thus the production of a precedent by the judgment, but was conceived within
the context of “Mensalão” and had its importance highlighted by the Court in the
face of demonstration of goods ows and occultation procedures perpetrated by
banks and marketing companies.
e (3) Brazilian Anti-bribery Law for Corporations (Law n. 12.846/13)
addresses civil and administrative liability of legal entities for the practice of actions
against national or foreign public administration. Although the liability model
for companies is restricted to civil and administrative spheres, it is important to
emphasize that criminal consequences may fall upon individuals, since it is a Law
that regulates something considered to be a crime.
Furthermore, it is worth highlighting the particularity of the Brazilian context:
as it was ascertained during the follow-up of the legislative process, the Law was
maintained as “non-criminal” in a deliberate way to ease accountability and avoid
obstacles and diculties of a criminal-procedure model, as proposed by the President
of the Republic at that time. is was sustained under the allegation that it is dicult
to prove individual malpractices and, only then, sanction business enterprises. It is also
alleged that there is a great diculty proving legal entities’ intention or negligence.
However, it is also necessary to consider the companies’ side, which will certainly be
aected in criminal and economic aspects, without eectiveness being really assured
through this support to an excessive jus puniendi. In Silveira’s and Saad-Diniz’s words:
Anyway, it is possible, once again, to see a legislative policy that seeks
to answer to socio-economic problems based on liability expansion,
instead of regulating strategic sectors and organizations that enable
corruption (but, not only this, also accounting frauds, diversion of
funds, frauds in bidding procedures are relevant here). Creating
mechanisms of approximation of its management to interests of public
regulation, the new Anti-Corruption Law provides more interference
on business activities’ operations for objective, administrative and civil
responsibility of legal entities for practice of acts of national or foreign
public administration, reaching even the person of their managers.
(Silveira; Saad-Diniz, 2015: 309) [Free translation].
the COAF issued a resolution excluding lawyers from the list of obliged professionals, since they are already
submitted to their own control institution. On lawyer’s duties and analysis of their participation in money
laundering, see: Salgado, 2017.
6 In her vote, Minister Carmen Lúcia made use of a comparison: “money is to crime, what blood is to a vein,
that is, if it doesn’t ow with volume and without obstacles, there won’t be criminal schemes like these” (STF,
2012: 3351).
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
116
Certainly, this objective responsibility creates enormous diculty for the
company to defend itself.7 If, as mentioned, there is a penal logic within the Law, it
is inevitable to question the restraint to defense when instituting the strict liability
in this Law (Sca, Silveira, 2014). is legislative preference revived the debate
about the models of corporate accountability8.
Despite all the criticism, it is worth pointing out the preventive initiative of
this Law, which can actually be eective in corruption prevention through incentive
to compliance policies. e positive eect of this policy is commented by Adán
Nieto Martin:
“...In some occasions, they are even bound to comply with the company
anti-corruption policy if they want to do business. is mechanism
seems to me to be a very powerful tool in the expansion of the ght
against corruption. If, in a region of Africa or Asia, a big multinational
company imposes adoption of anti-corruption policies on its providers
and partners, this measure can be more eective than many legislative
changes”9 [free translation].
erefore, notwithstanding all the criticism, the subject is in line with interna-
tional trends and the aim in preventing corruption. As respects to the proposals of
alternatives in the face of criticisms, “the foreign example must, therefore, be taken
into account, even to know the possible range of the Law, with State control and
preservation of rights, under penalty of violation and assault against companies”
(Sca, Silveira, 2014). e example from abroad may indeed be useful either to
adhere to or depart from certain legal provisions. Adhesion, however, should be
questioning and critical, drawing on comparative law, but able to adapt legislation
and problem solutions to national scenario. Up to the present moment, that has
not been the case in Brazil.
In this respect, see the 5th Article of Anticorruption Law, which lists the
oensive acts against national or foreign public administration. ey are many and
varied, from bidding frauds to bribery of governmental authority. “Such proceedings
would constitute themselves in those against the national or foreign public patrimony
that aim at, generically, promising, oering or giving, directly or indirectly, undue
7
For a critical analysis of the Brazilian model of criminal liability of legal entities, see: Januário, 2020; Januário,
2019b: 345 & Ff.; Januário, 2018a: 211 & .).
8 On this debate, see: Canestraro; Januário, 2018: 269 & .; Januário, 2016; Januário, 2018b.
9 e text in foreign language is: “En ocasiones obligan incluso a que se acepten, si quieren hacer negocios, la
política anticorrupción de la empresa. Este mecanismo me parece un arma muy poderosa de extensión de la
lucha anticorrupción. Si en una zona de África o Ásia una gran multinacional obliga a todos sus provedores
y socios, si quieren serlo, a adoptar medidas anticorrupción, esta medida puede ser más efectiva que muchos
cambios legislativos” (Nieto Martín, 2013: 205).
117
advantage to public agents.” (Sca, Silveira, 2014) [free translation]. So, initially,
two concerns present themselves: (I) ample prescription of conducts, with many
vague judicial concepts and great conuence between descriptions of criminal
practices provided for in the Brazilian Legislation and the “oensive acts” foreseen
by law; and (II) the emphasis on sanctioning acts committed against foreign public
administration, which shows the far extent and the inuence of Foreign Corrupt
Practices Act10 in the creation of the Brazilian Law.
As to the (I) ample prescription of conducts by the Law, with many vague
judicial concepts and great conuence between descriptions of criminal practices
provided for in the Brazilian Legislation and the “oensive acts” foreseen by Law,
Eduardo Saad-Diniz presents the conuence in a very relevant synthesis:
“Regardless of greater or smaller consistency that can be drawn from
the Law in the Brazilian theoretical eld, it is in Davi Tangerino’s
analysis that we can nd a well-elaborated design about the conuence
between the description of criminal conducts envisaged in the Brazilian
legislation and the oensive acts foreseen in the new Law. Tangerino
outlines the comparative charter in two columns (Oensive Acts
against Public Administration cf. the New Anti-Corruption Law; and
Criminal Types), classifying in 5 lines the equivalent pairs, summarized
here: 1) Undue Advantage Oered to Public Ocers would match
“Active Corruption, combining with the Article 29, CP, therefore,
Privileged Passive Corruption and Prevarication, with no harm of
extravagant legislation”, (2) Incentive to any of the acts provided for
in Anti-Corruption Law, which could provide the setting for the types
foreseen in the topic (1) by virtue of agents’ cooperation; (3) use of
legal entities, to conceal or disguise the real interests or the identity
of the recipients of the perpetrated acts, which “in general terms,
the wilful omission of information that should be registered in a
public or private document gives eect to misrepresentation crime or
money-laundering”; (4) biddings and contracts, equivalent to practices
10 “e Anti-Corruption Foreign Corrupt Practices Act (FCPA) prohibits corruption of public agents and foreign
government ocials in order to obtain, retain or direct business. It outlaws bribery of foreign governmental
authorities to obtain or retain business. Any company that has international business as a strategy must
develop and implement a policy in accordance with the Anti-Corruption Law FCPA, besides, of course, the
Anti-Corruption Laws of its country” (Coimbra, Manzi, 2010: 64) [free translation]. Worthy of additional
comments is the fact that such a Law, originated from the US, has been used as a parameter for regulation in
many countries and can strike companies that have shares quoted in North American stock markets, regardless
of where the malpractice has been committed. For this reason the Brazilian companies must have a special
concern if they have international business activities. Any act of corruption related to US jurisdiction can be
sanctioned. In this respect, the Law no. 12.846/2013 may indirectly compel such companies to comply with
a FCPA, contributing to many Brazilian economic protagonists.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
118
“incriminated by the types dened in Law no. 8.666/93”, without,
particularly in sub-paragraphs “f ” to “g”, falling on malpractices
against public administration; 5) hinder investigation or monitoring,
even within the scope of regulatory and inspection agencies, would
be equivalent to “resistance, disobedience, in their several respects”
(Saad-Diniz, 2017: 739-740 [free translation]).
It can be noted, on the layout above, the recourse to Criminal Law, even
though the Law deals only with the non-criminal responsibility of the companies.
is recourse happened exactly in the form of an increment of the sanction rules.
We can see, as a result, (II) the emphasis on sanctioning acts committed
against the foreign public administration, what demonstrates the wide range and
inuence of Foreign Corrupt Practices Act in the construction of the Brazilian Law.
Beyond legal standards, the increase of the punitive intervention reproduces the
sort of repression against corporate scandals largely applied in the United States
of America11. e similarity between the Anti-Corruption Law and the Foreign
Corrupt Practices Act is preserved, not only in the legislative technique, but also in
the very “obsessive persecutory strategies for intimidation” (Saad-Diniz, 2017: 740).
It happens that this integral internalization of the patterns brought along
with it several problems that are evident today. ere are, initially, two reasons for
this occurrence: (a) the poor result of penal intimidation in the country of origin
of regulation and (b) this regulatory standard needs to go through legitimacy lters
before being internalized, aiming at an appropriate internalization.
As to (a) the poor result of penal intimidation in the country of origin
of regulation, for some time, it has been insisted that the eectiveness of penal
intimidation is poor and the major investigations didn’t fulll its potential in
terms of positive changes in the governance structures of the organizations in
several places in the world, notably in the USA and in Italy. As a matter of fact,
there are no elements of empirical evidence showing that the increase of the penal
intimidation has guaranteed greater eectiveness in those places. e investigative
and legislative reinforcement has been treated by some North American authors
even as an illusion sold to ensure the recovery of condence on the market (Laufer,
2016). As we will see ahead, something similar has been seen in Brazil.
As regards (b) the necessity of legitimacy lters for this regulatory standard
before its internalization, aiming at the appropriate internalization, this occurs
because there is a sense of uncertainty about the law enforcement institutional
conditions and the regulatory potential of the legislation. In Eduardo Saad-Diniz’s
words:
11 On the U.S. debate, see: Laufer, 2016: 13-14.
119
“On the one hand, there has been little or no discussion about the
incompatibilities between legal instruments proper of the Common
Law tradition and the Brazilian constitutional order. On the other
hand, the specicities of the organizational culture must be taken into
account to avoid a mere transposition of standards of compliance duties
to a social reality that may not be denitely able to accommodate it”
(Saad-Diniz, 2016: 735-736) [free translation].
e law enforcement reality in Brazil is completely dierent from the one in
the US, which is why the mere internalization of the foreign standard is complex.
A system of administrative sanctions against companies, strongly linked to Penal
Law, was created in a country where the old moralizing intervention perspective
hasn’t replaced, but overlapped with, the new one, focusing on institutions and
companies, which occurs to date. Furthermore, the utility of liability prevention
measures
“(…) is also questionable as to the interpretation criteria inserted in
the new Law. In fact, besides poor eectiveness, what we have are
negative impacts, an ambience averse to risk and potential investors’
drain” (Saad-Diniz, 2016: 741) [free translation].
Following the analysis of the Law, the Art. 6th, in its turn, lists the
administrative sanctions set forth in it for commitment of illicit acts: a ne of 0,1%
to 20% of the gross revenue or 6 thousand to 60 million reais, being the amount
not inferior to the advantage obtained, not excluding full compensation for the
perpetrated damage when possible. Another foreseen sanction is the publication of
the convicting sentence, which is interesting from the perspective of social reproach.
e fact that the nes will never be smaller than the advantages obtained
has been praised due to being an intelligent way of punishing illicit acts committed
by companies (Souza, 2014). Such perspective even approaches what was defended
by Klaus Tiedemann in the sense that if the oenders risked losing their illicit
advantages only, or their illicit products, they would practically be at no risk and
thus wouldn’t feel the special preventive eects of the sanction. A preventive eect
could only be produced if the ne comprised a sum well above the value of the
illicit benet earned, in a way that the illicit act wouldn’t be advantageous to the
company (Tiedemann, 1995: 24-25).
Saad-Diniz, on the other hand, criticizes the common assertion that the
introduction of rational logic choice between costs and benets in Law was positive,
or innovative by oering a gradation to the sanction attributed in terms of objective
liability. e author substantiates his view by pointing that there is a lack of studies
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
120
validating the quality or consistency of such an argument and that, even in terms of
competitive advantage, the compliance policies would be of very little signicance.
e current context of economic crisis per se doesn’t help in investment inputs to
the productive sector. e resources end up being scarcer for adhesion to vague
and strict regulatory standards, which are optional and expensive. It wouldn’t be
surprising that a company alleged state of need to justify its non-compliance with
the integrity standards required by the Law. Additionally, the risk of small and
medium-sized companies being wiped out by strict sanctioning mechanisms is
real, bearing in mind that even the biggest Brazilian companies were threatened
by them during the Car Wash Operation (Saad-Diniz, 2016: 741-742).
Next, in the civil sphere, the sanctions can be found in the four clauses of
Article 19. ey are: (I) the forfeiture of money, assets, or anything else of value
that constitutes advantage or prot obtained, directly or indirectly, through the
illicit, safeguarding the rights of the adversely impacted or bona de third parties12;
(II) the suspension or partial prohibition of their activities; (III) the compulsory
dissolution of the legal entity; and (IV) prohibition of receiving incentives, subsidies,
grants, donations or loans from governmental agencies, entities, governmental
nancial institutions, or government-controlled organizations, for a minimum
period of 1 (one) year and maximum of (5) years. e paragraph 1st also raises
the two hypothesis, which, when proved, can lead to the compulsory dissolution of
the legal entity: (a) when the legal entity is regularly used to facilitate or promote
practices of illegal actions; b) when it is created to conceal or disguise illicit interests
or the identity of beneciaries of such illicit acts. ey are provisions with too
severe penalties, what makes us question whether it isn’t precisely the severity of
sentences imposed to companies that would justify a system of more guarantees
for them in the Anti-Corruption Law cases, and, also, whether this model wouldn’t
be a motivator to denunciation by the company, handing its employees over to
criminal liability, seeking to avoid its own responsibility.
It is at this stage that compliance becomes especially important. In this
sense, the Article 7th sets parameters to be considered when assessing the sanction.
Worthy of note is the subparagraph VIII, citing, as a means of mitigating sanctions,
“the existence of internal mechanisms and procedures of integrity, auditing and
incentive to reports of irregularities and the eective application of Codes of Ethics
and Business Conducts within the framework of the legal entity” (Sca, Silveira,
2014 [free translation]), referring here to compliance programs.
12 On the historical evolution of the loss of assets, see: Januário, 2021: 211-219.
121
“Recognizing its failure to act, the State chose not to try an externally
imposed regulation, but what has been referred to as regulated self-
regulation. Some premises are provided (by the State), leaving it up
to the companies to implement their internal conduct codes to better
adapt themselves to the new context.” (Sca, Silveira, 2014)13.
It turns out that this accountability framework is specic of the self-
responsibility models (that can even be criminal) of the companies. us, regardless
the fact that liability in the Anti-Corruption Law cannot really be referred to as
a criminal liability of the legal entity, particularly because the Law has expressly
adopted the nomenclature of objective, civil and administrative liability, even so, the
criminal nature of the Law has been extensively discussed. e great consequence
of the debate refers to its strict liability provision (Bottini, Tamasauskas, 2014),
whose constitutionality is doubtful, although it has never been questioned.
Apart from that, this provision consolidated the companies’ accountability and
their adhesion to compliance programs as a way of preventing corruption in Brazil.
As to the objective parameters of analysis of compliance standards, there
was, initially, a concern about the inexistence of parameters that the State would
provide or demand as a counterpart of the regulation since the law delegates its
detailing by decree
14
. It took almost two years for this regulation to be implemented.
In that period, there was an acceptance of the ambiguous liability formulation
of dierent responses for dierent precautions took by companies (those who take
precaution measures shall not be punished as those who do not).15 Finally, in 2015,
the Federal Regulatory Decree no. 8.420/2015 was promulgated, aiming at resolving
the question. is, for its part, was criticized for replacing “the state of uncertainty
of the ‘empty’ regulatory provision for the ‘excessive one’. Aer generically dening
the ‘integrity program’ (Art. 41), it inserted sixteen clauses that would be more
suitable to demonstrate the company’s due caution. e most severe criticism
pointed to a “strong commercial appeal, by linking each of the Clauses to a product
to be sold in order to ‘avoid’ or ‘mitigate’ the company’s culpability, albeit limited to
the formality of the punitive Administrative Law” [free translation] (Saad-Diniz,
2016: 742-743). is regulation ended up creating a great compliance market in
13
For more details on compliance programs and possible incentives for their adoption in Brazil, see: Januário,
2019a: 119-147; Canestraro; Januário, 2021: 24 & .; Canestraro; Januário, 2020, passim; Januário, 2019c: 221-228.
14 “Law 12.846/13: (...) Art. 7th - Will be taken into account in the application of sanctions: (...)VIII – the
existence of internal mechanisms and procedures intended to ensure integrity, auditing and incentive to
irregularity reports and the eective enforcement of the Code of Ethics and Conduct within the Legal Entity
framework; (...) Sole Paragraph. e assessment parameters of the mechanisms and procedures foreseen in
clause VIII of the caput will be set under regulation of the Federal Executive Power”.
15 is is ambiguous because any measure or key concepts to be veried were oered, which means that any
compliance program might be equal, even the most cosmetic and inecient.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
122
Brazil, without any compelling evidence about the institutional improvement of
corruption in Brazil.
e landmark decree is criticized because it demonstrates the reproduction
of the denition that compliance programs are in themselves eective once they
meet certain formal requirements. e sixteen items that sought the criteria for the
interpretation of what “eectiveness” would be, the main compliance mechanisms
can be summarized as (I) tone at the top; (II) conduct protocols; (III) code of ethics;
(IV) integrity measures; (V) third-party compliance; (VI) training and monitoring;
(VII) periodic risk assessment; (VIII) accountability control; (IX) internal controls,
reaction strategy and immediate interruption due to irregularities; (X) specic
models for irregularity hypotheses and; (XI) communication channels and due
diligence (SAAD-DINIZ, 2016, p.743). ese mechanisms, as can be seen, only refer
to procedures, that is, to what is formally required for compliance as a structure and
process. However, none of this allows for true eciency metrics, since, for example,
it does not mean that the training content has been internalized and is followed by
the employees. at is, the existence by itself of one of the requirements does not
guarantee that the compliance program will work better.
Concerning collaboration with the authorities in investigations, the law
provides for it through self-denunciation by the legal entity itself and not through
whistleblowing. Initially, it was pointed out that this could lead to an attempt by
the company to hide the crime instead of reporting it (Souza, 2014: 4-5). On the
other hand, the regulatory decree provided for the protection of the whistleblower.
According to him, an adequate compliance program would have an incentive
structure that proposes a business environment committed to private-public
cooperation. e problem would then be found in the sphere of encouraging
denunciation by linking the various benets of leniency agreements to the company’s
self-reporting (Silveira, Saad-Diniz, 2015: 349).
In addition, the self-report, which by law must be made by business entities
(whistleblower reports only internally, to the company itself, which reports itself to
the government), is not accompanied by the possibility of extending the benets
of collaboration to criminal responsibilities of individuals. According to Renato
de Mello Jorge Silveira and Eduardo Saad Diniz:
“... An undeniable obstacle present, however, [...] concerns the failure
to provide for attenuation or exemption from criminal responsibilities
to be extended to individuals, as was the case, albeit in a limited way,
in the antitrust legislation. Without the necessary complementary
guarantee, the legal measure is not considered very fruitful, which is
limited solely to the corporate sanctioning scope. In this way, such
rules, despite being foreseen in some sort of forecast, can ultimately
123
generate a reverse eect, that is, to transform the leniency agreement,
from a fundamental pillar, now of the anti-corruption policy, into a
true Achilles’ heel of the system.” (Silveira, Saad-Diniz, 2015: 350)
[free translation]
In the current regulatory decree, what would be of most interest to the
company would be self-reporting to get rid of its punishment. e bad practical
consequences of this mainly refer to a tendency towards individual accountability
and treatment of corruption from the classical perspective, as a moral deviation,
despite the use of the sophisticated and current mechanisms of institutional treatment
of corruption. ese eects were just the ones noticed throughout Operation Car
Wash, as will be shown below. It can be noted, therefore, that Law 12,846/2013 was
the normative apparatus that allowed for the huge projection of the operation (the
rise) and at the same time posed an obstacle to the creation of an institutional and
corporate anti-corruption culture in Brazil and, consequently, the maintenance of
earnings from the Car Wash Operation (the fall).
en, (4) Law n.12.850/13 came to oer new criminal descriptions and,
mainly, more modern instruments of investigation, adapting to the standards of
the Convention of Palermo, from the United Nations (Greco Filho, 2014: 8). e
Brazilian penal code already provided for the gure of an organized crime group or
gang, which consisted of the association of three or more people to commit crimes
of any nature (art. 288, CP). is gure was renamed as a criminal association,
failing to adopt such a stigmatizing term that better denes the concept of the
gure. In turn, a second criminal category was created, called criminal organization,
characterized by three elements: a) four or more people; b) orderly structure with a
clear division of tasks; c) with the intention of committing oenses with a maximum
penalty of more than four years or transnational nature.
Also in 2012, the Mensalão judgment explored and applied the concept
of “criminal organization” of the Palermo Convention to characterize money
laundering. Limited by the then existing list of previous wrongs, laundering could
be recognized if the previous oense was committed by a criminal organization
(art. 1, VII, Law n.9.613/98), even though the Brazilian legal system didn’t oer any
denition of its own of this gure. Despite the ratication of the Convention by
Brazil, the denition of “serious crime” (art. 2, b, of the Palermo Convention) was
not clear in the legal system and may be limited to transnational oenses and the
trac of drugs, people, and weapons (theme of greater attention of the Convention),
as explained by the votes of the Supreme Court Judges (STF, 2012: 1206 and 1210).
e Mensalão trial thus ended with the conviction of ten defendants for the
crime of “crime organizado” (organized crime), but at dierent times it demonstrated
the existence of a system organized into three main cores, they are: political,
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
124
operational, and nancial (STF, 2012: 5). erefore, this division of tasks and
subordination between dierent actors were not particularly valued due to the lack
of a legal denition of its own but was presented as an important mechanism for
the success of this achievement.
On the other hand, the instruments of investigation thus inserted in the
Brazilian legal system were (article 3 of Law n.12850/13): a) the awarded collaboration;
b) the controlled action; c) inltration of police agents. In addition to these, when
investigating criminal organizations, the possibilities of: a) environmental capture
of sounds and transmissions were made more exible; b) access to the record of
calls and message communications, including databases; c) interception of calls
and message communications; d) access to nancial, banking and tax records;
e) cooperation between dierent public institutions, regardless of hierarchy or
administrative instance. It would then be the task of the judiciary to continue
dening minimum standards of legality given the new probationary possibilities
developed.
It happens that, once these means of producing evidence were available under
the new law, there was fear that the position of the Prosecution and the Judiciary
would extend the application of Law 12,850/13 to compensate for the delimitation
of the minimum standards of legality for use of these means of proof. In this sense,
Silveira (2013: 169 et seq.) criticized the extension of the dogmatic interpretation
of the crime of criminal organization to the use of procedural institutes that were
only applicable to this type of association of people for the commission of crimes,
in particular, temporary detention and the means of producing evidence provided
for in art.3 of Law n.12.850/13. During the Carwash Operation, it was noted
that the use of these devices was a critical success factor for the operation, being
criticized precisely for this excessive use of temporary detention and turn state’s
evidence instruments.
en, (5) Law 13.303/2016 was promulgated during the Car Wash Operation.
is law is also known as the State-owned Companies Law and was clearly aimed at
operating to avoid new problems at Petrobras, as Brazil’s State-owned oil company
was at the center of the corruption schemes revealed by the operation.
In this regard, it is important to emphasize that Petrobras is historically one
of the most important and protable companies in Latin America, in addition to
practically monopolizing the extraction of crude oil and the rening of fuels in Brazil.
For this reason, it is also one of the most important companies on the continent in
carrying out works with economic purposes and infrastructure improvement. As it
is an economic center and carries out many works (contracts that allow additives,
variations, and price increases), it is expected that there is a focus of corruption there,
according to the criminological literature on corporate crime (Nieto Martín, 2015:
54 et seq.). e facts denounced at the Car Wash Operation, therefore, should not
125
be surprising, even if they needed an adequate response to avoid the maintenance
and reproduction of corruption in the company.
In this scenario, while the application of punishments in the Car Wash
Operation was the response method chosen by the Judiciary, the enactment of
Law 13.303/2016 was the response chosen by the Brazilian National Congress.
With a focus on preventing corruption, the provisions of articles 9, paragraph 1,
and 17, paragraph 2 are highlighted in the law. Art. 9, §1 requires state-owned
companies (public companies and mixed-capital companies) to implement a
code of ethics and an “integrity program” (the sum of the compliance program
and other internal control measures that align the 3 lines of defense against risks
corruption). Art. 17, §2º prohibits the appointment of political gures or those
related to politics, union organizations, and other conicts of interest for senior
positions in the administration of state-owned companies. ere is, therefore, an
attempt to strengthen the prevention of corruption at the institutional level, with a
focus on ethical conicts, conicts of interest, and structuring of prevention against
corruption in state-owned companies.
Although these changes, the Car Wash Prosecutors’ Task Force proposed in
2015 a legislative change entitled “Ten Measures Against Corruption”. Under the
argument that the Brazilian criminal procedure was excessively full of guarantees and
slow, leading several corruption crimes to the statute of limitations and impunity,
the prosecutors thus proposed, among other measures16, the typication of new
conduct (such as illicit enrichment), exibilization of the criteria for enforcement
of procedural arrest and creating objective accountability of political parties if
their accountability were rejected by the electoral justice. is proposal ended up
not becoming law, but it is noteworthy for having had great repercussion during
the operation, demonstrating its importance and national and political projection
during its heyday.
Finally, the latest important legislation modied in the last decade in Brazil
that relates to the prevention of corruption at the institutional level is (6) Law
14.133/2021, the New Public Procurement General Law, enacted aer the end
of the Carwash Operation. is law came to replace the former Law 8.666/1993,
which already provided for several nancial and non-nancial controls for public
purchases very similar to those provided for by the annexes of ISO 37001 for
corporations (International Organization for Standardization, 2006). With the
reform, the new law not only has deepened these controls, requiring, for example,
division of functions in the requisition, authorization, payment and internal and
external inspection (to the institution) of public contracts, double verication
16
e project received its own website, where the ten measures were thus systematized. See: Ministério
Público Federal (2021, online). e “popular initiative” law project (PL 3855/2019) was endorsed by dierent
judiciary bodies and is available on the Chamber of Deputies website: Câmara dos Deputados (2016, online).
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
126
for payment, and rules for maintaining the greater competition and favoring the
lowest possible price for purchase by the government, but it also brought several
provisions on integrity programs. In art. 25, §4, the Law requires companies that
are contracted by the State in contracts exceeding R$ 200,000,000 (two hundred
million reais) to implement an integrity program in six months. In art. 60, the law
provides that, in the event of a tie in the competition, companies that already have
an integrity program in place have the advantage of a tiebreaker against those that
have not implemented it yet. In art. 156, §1, the integrity program is placed as a
factor to observe the application of administrative sanctions in case of deviations
during public contracts. Finally, the sole paragraph of article 163 of the Law provides
that the implementation of the integrity program will be mandatory if a company
that infringed the competitive bidding wishes to rehabilitate itself to participate
in a new bid.
e sum of all these measures were aimed at avoiding the creation of people
and bribery schemes, overpricing in public contracts, and space for arbitrary
decisions in favor of companies. e focus is to avoid corruption and damage to
public coers. It is yet another attempt to block the misuse of public resources, again
providing for measures from an institutional perspective, and at the initiative of
the Brazilian Parliament. e reasons for this change at this time, however, are not
only due to the Car Wash Operation, but the negative eects aer it was nished,
which were made evident aer the publicity of corruption scandals in the purchase
of health equipment and vaccines for the covid-19 pandemic treatment. More about
this will also be indicated in the nal topic of this paper.
It is noted, therefore, that many legislative changes were carried out in Brazil
aiming at the treatment of corruption from an institutional perspective. However, at
the level of law enforcement, the traditional interpretation that interprets corruption
from a moralistic and individual perspective remains strong in the country and,
together with gaps in current legislation, prevents the mature and institutional
treatment of corruption at a national level. Finally, it is also noted that except for
Law 12,527/2011 (Access to Information Law), which can publicize data on salaries
received by public employees, and the limitations on hiring for the administration
of state-owned companies by Law 13.303/2016, the other legislative amendments
said nothing about the hiring of personnel by the government, another measure
that would be advised as an important control against corruption. is regulatory
void was also another problem for the Post-Car Wash Operation, as will be seen
at the end.
127
2. CAR WASH NEW STANDARDS OF INTEGRITY AND DUE DILIGENCE
Commenting on the “Car Wash Operation”, Eduardo Saad Diniz points
out that, despite the operation reaching global dimensions, the intimidating
reinforcement did not necessarily reect in transformations that present:
“Convincing results of improvement in the ethical environment in
politics or the market. e trend seems to form part of an international
agenda, introducing into the daily routine of the criminal justice
system, sophisticated practices of awarding whistleblowing, leniency
agreements and compliance programs.” (Saad-Diniz, 2016, p.722)
[free translation]
is international trend is also veried by the positive reinforcement oered
by international institutions, as was the case with the Transparency International Anti-
Corruption Award given to Carwash Prosecutors’ Task Force in 2016 (Transparency
International, 2016). As said by the institution, the convictions obtained and the
“10 Measures against Corruption” project proposed to demonstrate how the group
assumed the main role in Brazilian’s transformation (Ibidem).
Although it does not discredit the process of changing the paradigm in the
treatment of corruption in Brazil, it is worrisome given the eorts that have been
undertaken to change this reality.
Another important issue about the eciency in transforming the Brazilian
corporate culture concerns the reproduction of the regulation of the Foreign Corrupt
Practices Act in Brazil during and aer the Car Wash Operation. In this regard,
“Even though there is widespread mobilization in the provision of
legal services, making certain that the fear of company directors
concerning the extraterritorial reach of the American legislation is
made, the impact of the FCPA (Foreign Corrupt Practices Act) is
small, with a relatively low incidence of cases involving Brazilian
actors. Not only in Brazil but also in Latin America, the reference to
the FCPA was limited to “cosmetic” appropriation as derived from the
imposition of multinationals, representing a mere reaction to crises or
as a mechanism for extortion and business strategies, without eective
results in terms of improving the business environment.” (Saad-Diniz,
2016: 735) [free translation]
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
128
e situation, at this point, is more sensitively aggravated. If adherence to
the compliance culture only takes place through “cosmetic” compliance programs
to ensure economic benets for a few agents, something wrong is being identied.
Furthermore, in economic terms, the extraterritorial reach of the Anti-Corruption
Law would have the potential to harm the allocation of international investments.
is eect aects emerging markets more drastically, as is the case in Brazil.
Furthermore, if the central point of defending the legislation is due to the preventive
potential of the regulatory incentive to compliance, on the other hand, “most of the
compliance programs already structured in national companies make references to
e FCPA Guide’s recommendations.” As previously criticized, “although there is a
certain reception of the American legislation in the conguration of the Brazilian
law, it is wrong to believe that the simple adherence to the North American standard
would justify a behavior ‘in conformity with the Brazilian legislation.” (Saad-Diniz,
2016: 736). e regulatory standards, institutional conditions for implementation,
and the corporate culture of the countries are dierent, which is why the operation
cannot be automatic.
What is exposed here is also added to the particular conditions of Brazilian
capitalism. Brazilian dependent development is evidenced when it denotes the
internalization of external legal standards. Brazil adheres to the standards imposed
to guarantee the maintenance of its condition of (decit in) development (Fernandes,
2008). At the same time, even the country’s corporate and legal cultures adopt
external standards, even though their conditions are evidently particular and
tragically national.
Furthermore, in economic terms, it is notable that in Brazil there is a
greater need for economic and social development than in the USA, the country
that originated the FCPA. e country can’t adopt the same regulatory standards
as a country with a consolidated production matrix and consumer capacity. is
happens not only because Brazil materially cannot do it, but mainly because it has
not politically agreed that it should do it. Adherence to US standards during the
Car Wash Operation for the interpretation of Law 12,846/2013 was automatic and
not discussed.
Since the Brazilian elite’s resource to compensate for the decits in economic
development is the isolation of the State (Fernandes, 2008), it is equally not to be
expected that the standards of practice of corruption and infringement of democratic
ideals are the same in Brazil and the central economies. e regulation, therefore,
needs to be adapted to the national reality and justify itself not only by what it
protects but also as guardianship, given the context in which it operates (Shecaira,
2012: 603 et seq).
Compliance regulation, therefore, cannot be innocently treated as a
reinvention of the wheel. It must be recognized that economic activity cannot
129
be made unfeasible. For these reasons, anti-corruption regulation needs to be in
contact with producers, especially those with less potential to invest in corporate
controls, usually smaller companies. On the other hand, none of this can justify
greater burdens on the working class, as occurred from 2016 onwards in Brazil,
with the cut in labor and social security rights as a way to “compensate” for the
loss of illicit advantages that the pursuit of corruption by half of the Car Wash
Operation would have caused. It is necessary to be careful with the worker in the
compliance regulation, especially when it is placed in a situation of criminal risk
and the counterpart is the adherence to cosmetic compliance practices (Miranda,
2019: 125-126).
us, now, with the Car Wash Operation concluded, all regulation and
enforcement of corruption in Brazil is in a space of uncertainty regarding the
political-criminal parameters that the country wishes to adopt. If the existence of
the operation was important to arm that the laws exist and apply to everyone, on
the other hand, it is even more important to know “what comes aer the Car Wash
Operation”. e operation introduced regulatory parameters to be applied in the day-
to-day activities of all companies. In the media spotlight, the operation’s problems
were hidden by the fetish that the spectacle of the arrests of politicians promoted,
but the results aer the operation could highlight the worst of the collective “anti-
corruption” hysteria: the restriction of rights, the exchange of “politicians” by
“scapegoats” and new waves of corruption with more tragic consequences.
3. THE POST “CAR WASH OPERATION”: RISE OF POLITICAL FIGURES
AND FALL OF ENFORCEMENT AGAINST CORRUPTION
One of the very important concepts for the analysis of power in Latin
American countries is the coloniality of power. It is a concept that demonstrates
how colonial structures are sustained to the present day, keeping a distance from the
people (and their social identity) away from those who exercise power (including
the judiciary) (Quijano, 2005). Commenting on this concept, Haesbaert points
to the need to overcome binomials, one of them being the opposition between
command and obedience (Haesbaert, 2021: 113). us, he cites as an example the
Zapatista premise of mandar obedecendo (to command while obeying) - power is
only legitimately exercised to such extent as it is representative of the popular will -
which would require the restructuring of institutions of “multi or trans-territoriality
articulated at dierent scalar levels” (Haesbaert, 2021: 113).
On dierent occasions, the Car Wash Operation presents itself as a turning
point in Brazilian republican history. However, the fact that its members were
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
130
elevated to the status of “national heroes”
17
echoed the well-known story of maharaja
hunters and broomsticks. e control, the surveillance and even the truth remain
a privilege of some men in a small room (or Telegram group).
e fall of the Car Wash Operation ironically started when people involved
in the anti-corruption enforcement focused on individuals and not institutions in
the ght against corruption. is moment was when, according to the Brazilian
Supreme Court Judge Gilmar Mendes, prosecutors and judges of the Car Wash
Operation aided Jair Bolsonaro in the Presidential elections (Passarinho, 2021).
Above the personal political alignment of the members of Car Wash
Operation and their anti-corruption agenda, there was an extra key factor to
explain this so said support. Judge Sergio Moro, the main gure of this operation,
wanted it to go beyond “Mani Pulite”, the Italian operation that inspired the
Brazilian one. e idea was to take his “perspective of implementing a strong anti-
corruption and anti-organized crime agenda, with respect for the Constitution,
the law and the rights” (Gragnani, 2018) in the new Government.
ings went exactly the way Judge Sergio Moro wanted, until a certain
point in history. e Car Wash Operation was able to remove from the election
the most important gures of the Workers’ Party (Partido dos Trabalhadores, PT),
creating the opportunity for a change in power and the victory of the opposition.
When the opposition prevailed in the election of the President Jair Bolsonaro and
many Senators and Deputies of his party or of conservative allies, massacring the
Brazilian leists, it was expected Sergio Moro to be part of the new government.
And so he did. Sergio Moro became what the press called the “Super-Minister of
Justice’’ in Bolsonaro’s Government and was one of the most important gures in
the rst year of the new government (Soares, 2018).
ings, however, didn’t turn out the way Moro wanted once he was in the
government. e problems started when the Rio de Janeiro District Attorney Oce
started to investigate two of the President’s sons for the practice of corruption.
ey were basically accused of employing people with no capacities for the job in
their sta of public employees of unconditional hiring, with the condition these
people repassed part of their wages back to their employers. is scheme was called
“rachadinha” (Borges, 2020).
When this happened, corruption control became personal. First, the President
started with speeches about the new corruption-free government because he was
the most important and honest gure leading the country. Aer that, he started to
try to interfere in the institutions, with several actions, which two deserve special
17 In addition to the fame achieved by the then judge Sérgio Moro, the task force of the Public Ministry also
claimed a place in the pantheon of the national political imagination. One of the most famous episodes was
the hiring of an advertising billboard with a photo of the promoters, paid directly by one of its members. e
case did not suer any administrative sanction (Angelo, 2020).
131
mention: (1) he nominated an Attorney General and a Supreme Court Minister
aligned with his agenda, acting like government members, not Estate members,
and avoiding any accusations against government people and allies; (2) tried to
nominate a new chief to the Rio de Janeiro Federal Police Department who was
friends with the Bolsonaro family, hoping he could “help” in the investigations
against his sons. Suddenly, there was already an observed context of enforcement
institutions weakening, compromising corruption control in Brazil (Shalders, 2020).
When the President (2) tried to nominate a new chief to the Rio de Janeiro
Federal Police Department that was friends with the Bolsonaro family, hoping
he could “help” in the investigations against his sons, Sergio Moro got especially
angry and got away from the government (Shalders, 2020). Aer going home, Moro
aimed for the compliance industry he so well built in the Car Wash Operation and
became not only a compliance consultant but also a monitor of the bankruptcy
reinstatement of one of the corporations the Carwash operation devastated when
applied the law 12.846/2013 (UOL, 2020).
Bolsonaro then became unstoppable and went deep in his mission of
protecting people around him against corruption accusations. One of the measures
was the burial of the Car Wash Operation itself. Augusto Aras, the nominated
Attorney General, despite not being someone voted by the Prosecutors (the PT
government established a good practice of nominating as Attorney General the
Prosecutor elected by the Prosecutors themselves) (El País Brasil, 2019), was the
one with the power and the will to nish o the operation and so he did in January
2021 (Shalders, 2020).
When all those things were already a fact for Brazilians, the OECD started to
show how much it was worried about Brazil and its throwback in the ght against
corruption (OECD, 2019).
In the current state, things not only didn’t get better but, in fact, they look
worse. People around the whole world know that the Covid-19 pandemics caused
an even worse tragedy in Brazil. It included the arising of a new variant of the virus
in the country and many restrictions of various countries over the circulation of
people that were in Brazil during the time of the toughest measures against the
virus. Corruption played a central role in this tragedy. It’s not a coincidence that
right aer all the dismantling of the institutions of corruption control, the Brazilian
Senate is now discussing the Covid-19 crisis in the country and has opened a
Parliamentary committee to investigate the reasons behind it. According to the
Senate Investigation Commission, Brazil took this much time to solve the Covid-19
crisis because there were corruption problems in the acquisition of some vaccines.
ey were delayed because people were trying to ask for bribes and only some
sellers were up to it (Rezende, 2021). In the middle of this delay, the government
tried to impose hydroxychloroquine treatment in many places, both public and
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
132
private, aiding private actors willing to take it forward. e result was that lots of
people died, mainly elderly people and vulnerable indigenous (G1 SP, 2021 and
Juca, 2021). At this moment, some people, including the President himself, are
being indicted for practices that look so much like those of the Nazi regime, but
also corruption is at the core of these problems (Brito, 2021).
Now, in response to the Senate commission appointments, comes the
President with his new Presidential Compliance Program, in a signal of institutional
maturity (Brasil, 2021). However, he repeatedly arms the “end of corruption”
because of, in his own words, his “incorruptible honesty” (Shalders, 2020). It’s
still happening mainly because, in response to the moralism in the treatment of
corruption by the Car Wash Operation, corruption became a person, an enemy, a
political party, a name which prison or depossession would solve all problems. In
this scenario, the President put himself beyond any moral doubt and acted like he
was above any kind of accusations. Obviously, his fellow government mates acted
in the same way. erefore, corruption and personied ethics come before control
mechanisms and start to adopt a post-truth model of administrative probity. We
are not talking about verication, but about personal beliefs (not to say messianic
faith) without institutional mechanisms capable of controlling them. e results
are basically corruption in the core of the sanitary crisis and the maintenance of
the toxic narrative of personal honesty.
Institutional immaturity is also manifested in the lack of regulation of
the hiring of people to exercise public positions of unconditional designation.
Coincidence or not, this issue is never questioned by the President of the Republic,
even though it is a critical success factor for the occurrence of corrupt practices of
improper appointment of public servants who then pass on their salaries to holders
of elective positions that were appointed. As noted in the regulatory analysis, this
institutional control mechanism is precisely the one that has been missing from
legislative changes in Brazil over the last 10 years.
In a general way, the Brazilian situation shows institutions must be above
people if controlling corruption is really important. e focus on corporations and
the responsive regulation aiming the prevention are still the best options for good
institutional arrangement and achieving results against corruption in an ecient way.
Finally, in a similar vein, it is worth mentioning Saad Diniz, for whom the
change of perspective only occurs when corruption is given a more open treatment
to embrace the multiple forms of its manifestation. Among the dierent possible
perspectives in which corruption can manifest itself, Saad Diniz highlights the
micro and macro forms, valued by the degree of vulnerability of the Rule of Law,
the level of disruption of governance and interaction networks (Saad-Diniz, 2017:
722). is distinction is important when trying to verify the degree of institutional
disruption (public or market sector, corporate) of corruption and think about
133
more sophisticated sanctioning controls, always focusing on institutions and less
on individuals, even though they also deserve the attention of the Law.
CONCLUSION
is article attempted to demonstrate how a scenario of strong reaction
to corruption can so quickly transform into a scenario of authoritarianism and
ineciency. e Car Wash Operation, although performed aer the 2013 protests
(which was a popular movement), actually originates from a series of legislative
changes. In this way, they are the movements of the State itself (trial of the Mensalão
and the introduction of new investigation mechanisms) that led to the emergence
of an “unprecedented” operation, but which kept the same moral perspective of
corruption.
e lack of change in perspective led the operation to launch its own
legislative (“Ten Measures Against Corruption”) and electoral endeavors, without
generating sensitive changes in the organizational culture or even oering a new
regulatory model guided by prevention through compliance instead of criminal
repression. Moral speeches led to a conservative shi in national politics and the
abuse of procedural instruments despite evidence. Ironically, the operation itself is
dismantled by the system it helped to elect and sees a new institutional adjustment
between the powers to guarantee the emptying of the “advances” that were once
recognized.
In addition to the ineectiveness of the moral speech and the short-term
metrics used, for example, by Transparency International, this article concludes
that the problem of corruption is not overcome by cooperation between the powers
or by the articulation of “political projects”. Considering what has been said, if the
protection of public administration must be guided by the adequate provision of
services by the State and the adequate provision is guided by the correct intervention
of the State in the social and economic spheres, aiming at maintaining the democratic
legitimacy of the institutions, it comes to an initial idea of what is intended to
protect and on what basis the strategies to ght corruption will be implemented.
ese reasons seem to be, in principle, adequate to what the Constitution of the
Federative Republic of Brazil provides, especially in its article 37.
Control and surveillance mechanisms must be democratized. It is necessary
to decentralize decisions and overcome the personication of solutions. Messianic
speeches must be overcome, as well as the North American techniques of “negotiation”,
which only privatize the conict by putting it in the hands of a few inexperienced
public agents. e nation does not need to be saved from its people, but by its people.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
134
REFERENCES
1.
Agapito, L.S., Alencar e Miranda, M., Januário, T. F. X. (2020) “Corruption
and Latin America’s “Serious reat”: an analysis of Argentine and Brazilian
recent reforms through the current global standards of the OECD” in: Kostić, J.,
Stevanović, A. (eds.). Uloga društva u borbi protiv korupcije [e role of society
in the ght against corruption] Belgrade: Institut za uporedno pravo, Institut za
kriminološka i sociološka istraživanja, Pravosudna akademija, 285-301.
2.
Angelo, T. (2020) “Procurador confessa ter pago por outdoor da “lava jato”, mas
caso é arquivado”, Revista Consultor Jurídico, 30 June 2020, https://www.conjur.
com.br/2020-jul-30/procurador-confessa-pago-outdoor-prescreve [31/10/2021].
3.
Borges, L. (2020) “MP conclui denúncia de Flávio Bolsonaro e Queiroz por
rachadinha”, Revista Veja – Política, 28 September 2020, https://veja.abril.
com.br/politica/mp-denuncia-avio-bolsonaro-e-queiroz-por-rachadinha/
[31/10/2021].
4. Bottini, P. C., Tamasaukas, I. (2014) “A controversa responsabilidade objetiva
na Lei Anticorrupção”, Revista Consultor Jurídico, 9 December 2014, http://
www.conjur.com.br/2014-dez-09/direito-defesa-controversa-responsabilidade-
objetiva-lei-anticorrupcao [31/10/2021].
5. Brasil. Presidência da República (2021) Decreto nº 10.995, de 13 de setembro
de 2021: institui o Programa de Integridade da Presidência da República. http://
www.planalto.gov.br/ccivil_03/_Ato2019-2022/2021/Decreto/D10795.htm
[31/10/2021].
6. Brito, R. Brazil Senate committee approves report calling for Bolsonaro to be
indicted, Reuters, Oct.27, 2021. https://www.reuters.com/world/americas/brazil-
senate-committee-approves-report-calling-bolsonaro-be-indicted-2021-10-26/
[31/10/2021].
7. Callegari, A. L. (2001) Imputação objetiva: lavagem de dinheiro e outros temas
de direito penal. Porto Alegre: Livraria do Advogado.
8.
Câmara dos Deputados. PL 3855/2019 (Previous No.: PL 4850/2016).
Present on 03.29.2016. https://www.camara.leg.br/proposicoesWeb/
chadetramitacao?idProposicao=2080604 [31/10/2021].
9.
Canestraro, A. C., Januário, T. F. X. (2021) “Acordo de não persecução penal como
instrumento de promoção de programas de compliance?”, Boletim IBCCRIM,
29(344), 23-25.
10.
Canestraro, A. C., Januário, T. F. X. (2020) “Dos níveis de exigibilidade dos
procedimentos de investigação interna”. in: Anais do IV Congresso de Pesquisas
em Ciências Criminais, de 21 a 23 de outubro de 2020. São Paulo: IBCCRIM,
215-237, https://ibccrim.org.br/publicacoes/pagina/3 [31/10/2021].
135
11.
Canestraro, A. C., Januário, T. F. X. (2018) “Responsabilidade penal da
pessoa coletiva e princípio da culpabilidade: análise crítica do modelo
português”, Revista da Faculdade de Direito da UFRGS, 39, 261-285, https://
doi.org/10.22456/0104-6594.77092 [31/10/2021].
12. Carvalho, M. J. M. (1987) ““Quem furta mais e esconde”: o roubo de escravos
em Pernambuco, 1832-1855”, Estudos Econômicos, 17, 89-110.
13.
Coimbra, M. A., Manzi, V. A. (2010) Manual de Compliance. Preservando a Boa
Governança e a Integridade das Organizações. São Paulo: Atlas.
14.
De la Mata Barranco, N. J., Hernández, L., “A luta contra a corrupção por
meio do direito penal” in: Oliveira, W. T. et al. (orgs.), Direito penal econômico:
Estudos em homenagem aos 75 anos do Professor Klaus Tiedemann. São Paulo:
Liber Ars, 143-156.
15. El País Brasil (2019) “Augusto Aras, um conservador sob medida para a PGR
de Bolsonaro”, 06 September 2019, https://brasil.elpais.com/brasil/2019/09/05/
politica/1567710901_813050.html [31/10/2021].
16.
Fernandes, F. (2008) Sociedade de classes e subdesenvolvimento. 5th. ed. São
Paulo: Global.
17. Fernandes, F. A. (2014) “Lavagem de dinheiro: a questão do fato penalmente
relevante antecedente”, AIS. ARSIURIS. SALMANTICENSIS. Revista Europea
e Iberoamericana de Pensamiento y Análisis de Derecho, Ciencia Política y
Criminología, 2, 107-136.
18.
Gragnani, J. (2018) “Pesquisador italiano teme que Moro tenha destino de ‘herói’
da Mãos Limpas que entrou para política”, BBC News Brasil em Londres, 02
November 2018, https://www.bbc.com/portuguese/brasil-46059869 [31/10/2021].
19.
Greco Filho, V. (2018) Comentários à Lei de Organização Criminosa: Lei
n.12.850/13. São Paulo: Saraiva.
20.
G1 SP (2021) “Prevent Senior: entenda as acusações contra a empresa envolvendo
pesquisa sobre cloroquina”. G1 – o portal de notícias da Globo, 16 September 2021,
https://g1.globo.com/sp/sao-paulo/noticia/2021/09/16/prevent-senior-entenda-
as-acusacoes-contra-a-empresa-envolvendo-pesquisa-sobre-cloroquina.ghtml
[31/10/2021].
21.
Haesbaert, R. (2021) Território e descolonialidade: sobre o giro (multi)territorial/
de(s)colonial na América Latina”. Buenos Aires: CLACSO, http://biblioteca.clacso.
edu.ar/clacso/se/20210219014514/Territorio-decolonialidade.pdf [31/10/2021].
22.
International Organization for Standardization (2016) ISO 37001:2016 Anti-bribery
management systems. https://www.iso.org/standard/65034.html [31/10/2021].
23. Januário, T. F. X. (2016) “Da teoria do delito para as pessoas jurídicas: análise a
partir da teoria construtivista de “autorresponsabilidade” dos entes coletivos”,
Revista de Estudos Jurídicos UNESP, 20(32), 161-191.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
136
24.
Januário, T. F. X. (2018a) “Criminal liability for legal entities: a comparative study
between Spain, Portugal and Brazil”, POLAR – Portuguese Law Review, 2(2), 191.
25.
Januário, T. F. X. (2018b) “Dos limites do risco permitido para as pessoas
jurídicas: uma análise do defeito de organização como um problema de imputação
objetiva”, Conpedi Law Review, 4(1), 1-23, http://dx.doi.org/10.26668/2448-
3931_conpedilawreview/2018.v4i1.4514 [31/10/2021].
26.
Januário, T. F. X. (2019a) Criminal compliance e corrupção desportiva: um estudo
dos ordenamentos jurídicos do Brasil e de Portugal. Rio de Janeiro: Lumen Juris.
27.
Januário, T. F. X. (2019b) “Da (ir)relevância dos programas de compliance no modelo
brasileiro de responsabilidade penal das pessoas jurídicas: considerações críticas ao
projeto de novo Código Penal”, Revista Direito e Liberdade, 21(2), 327-357.
28. Januário, T. F. X. (2019c) “Das especicidades dos programas de compliance
no setor desportivo e seus possíveis reexos na responsabilidade penal pelos
crimes da Lei 10.671/03” in: Anais do III Congresso de Pesquisas em Ciências
Criminais, de 27 a 31 de agosto de 2019. São Paulo: IBCCRIM, 218-239, https://
ibccrim.org.br/publicacoes/pagina/3 [31/10/2021].
29. Januário, T. F. X. (2020) “El modelo brasileño de responsabilidad penal para
entidades jurídicas: un comentario de la Ley 9.605/98 y el nuevo Código
Penal” in: Demetrio Crespo, E., Caro Coria, D. C., Escobar Bravo, M. E. (eds.)
Problemas y retos actuales del Derecho Penal Económico. Cuenca: Ediciones de
la Universidad de Castilla-La Mancha, 15-24.
30.
Januário, T. F. X. (2021) “Da possível invocação da presunção da origem
criminosa do patrimônio como motivo de não reconhecimento das decisões
portuguesas de perda alargada” in: Acale Sánchez, M., Rodrigues, A. M., Nieto
Martín, A. (coords.) Reformas penales en la península ibérica: a “jangada de
pedra”?. Madrid: BOE, 211-234.
31.
Jucá, B. (2021) “‘Capitã cloroquina’ admite documento que pressionou Manaus
a usar o remédio inecaz e contradiz Pazuello três vezes”, El País Brasil, 25 May
2021, https://brasil.elpais.com/brasil/2021-05-25/capita-cloroquina-admite-
documento-que-pressionou-manaus-a-usar-o-remedio-inecaz-e-contradiz-
pazuello-tres-vezes.html [31/10/2021].
32. Laufer, W. S. (2016) “Ilusões de compliance e governança” in Saad-Diniz, E.,
Adachi, P. P., Domingues, J. O. (orgs.). Tendências em governança corporativa
e compliance. São Paulo: LiberArs, 13-28.
33. Michener, G. et. al. (2018) “Da opacidade à transparência? Avaliando a Lei de
Acesso à Informação no Brasil cinco anos depois”, Revista de Administração
Pública, 52(4), 610-629.
34.
Ministério Público Federal. Ten measures against corruption. General objectives
of the proposal. https://dezmedidas.mpf.mp.br/apresentacao/objetivo-geral-
das-propostas. [31/10/2021].
137
35.
Miranda, M. A. (2019) (In)eciência de compliance e os direitos dos trabalhadores:
evitando o “bode expiatório”. São Paulo: LiberArs, http://www.cpjm.uerj.br/
wp-content/uploads/2020/05/Ineciencia-de-compliance-e-os-direitos-dos-
trabalhadores_e-book.pdf [31/10/2021].
36. Nieto Martín, A. (2013) “La privatización de la lucha contra la corrupción” in
Arroyo Zapatero, L., Nieto Martin, A. El Derecho Penal Económico en la era
Compliance. México D.F.: Tirant lo Blanch, 191-207.
37.
Nieto Martín, A. (2015) “Cumplimiento normativo, criminología, y
responsabilidad penal de personas jurídicas” in: Nieto Martín, A. (dir.) Manual
de cumplimiento penal en la empresa. Valencia: Tirant lo Blanch, 49-109.
38. OECD (2019) Law enforcement capacity in Brazil to investigate and prosecute
foreign bribery seriously threatened, says OECD Working Group on Bribery, 21
October 2019, http://www.oecd.org/corruption/law-enforcement-capacity-in-
brazil-to-investigate-and-prosecute-foreign-bribery-seriously-threatened-says-
oecd-working-group-on-bribery.htm [31/10/2021].
39. Passarinho, N. “Lava Jato apoiou eleição de Jair Bolsonaro e agiu para perturbar o
país, diz Gilmar Mendes”. BBC News Brasil em Londres, 6 February 2021, https://
noticias.uol.com.br/ultimas-noticias/bbc/2021/02/16/lava-jato-apoiou-eleicao-de-
jair-bolsonaro-e-agiu-para-perturbar-o-pais-diz-gilmar-mendes.htm [31/10/2021].
40.
Pires, A. P. R. F. (2015) Lavagem de capitais e delitos omissivos: responsabilidade
penal pelo descumprimento dos deveres de compliance. Curitiba: Juruá.
41.
Quijano, A. (2005) “Dom Quixote e os moinhos de vento na América
Latina”, Estudos Avançados, 19(55), 9-31, https://doi.org/10.1590/S0103-
40142005000300002 [31/10/2021].
42. Rezende, C. (2021) “Governo Bolsonaro pediu propina de US$ 1 por dose, diz
vendedor de vacina”, Folha de São Paulo, 30 June 2021, https://www1.folha.uol.
com.br/poder/2021/06/exclusivo-governo-bolsonaro-pediu-propina-de-us-1-
por-dose-diz-vendedor-de-vacina.shtml, [31/10/2021].
43.
Rodríguez, V. G. O., Law, T. (2013) “Autolavagem e evasão de divisas: elementos
mínimos de interpretação para a autonomia da lavagem de dinheiro, diante
da Lei brasileira” in: Oliveira, W. T. O., Neto, P. F. L., Essado, T. C., Saad-Diniz,
E. (Orgs.), Direito Penal Econômico: Estudos em homenagem aos 75 anos do
professor Klaus Tiedemann. São Paulo: LiberArs, 247-261.
44. Saad-Diniz, E., (2017) “Corrupção e compliance no Brasil” in: Lobato, J. D. T.,
Martinelli, J. P. O., Santos, H. S. (orgs.), Comentários ao Direito Penal Econômico
Brasileiro. Belo Horizonte: Editora D’Plácido, 721-748.
45. Saad-Diniz, E. (2019) Vitimologia corporativa. São Paulo: Tirant le Blanch.
46.
Salgado, A. B. B. (2016) Lavagem de dinheiro e os deveres de colaboração do
advogado. São Paulo: Liber Ars, https://www.liberars.com.br/pagina/e-books-
gratuitos.html [31/10/2021].
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
INSTITUCIJE I PREVENCIJA FINANSIJSKOG KRIMINALITETA
138
47. Sca, F. F., Silveira, R. M. J. (2014) “Lei Anticorrupção é substancialmente de
caráter penal”, Revista Consultor Jurídico - CONJUR, 5 February 2014, http://www.
conjur.com.br/2014-fev-05/renato-silveira-fernando-sca-lei-anticorrupcao-
carater-penal [31/10/2021].
48.
Shalders, A. (2021) “‘Acabei com a Lava-Jato’: as medidas de Bolsonaro que
já enfraqueceram a operação”. BBC News Brasil em Brasília, 08 October 2021,
https://www.bbc.com/portuguese/brasil-54472964 [31/10/2021].
49.
Shecaira, S. S. (2012) “Corrupção: uma análise criminológica” in: Greco, L.,
Martins, A. (orgs.). Direito Penal como crítica da pena. Estudos em homenagens
a Juarez Tavares por seu 70.º Aniversário em 2 de setembro de 2012. São Paulo:
Marcial Pons, 603-615.
50.
Silveira, R. M. J. (2011) “A ideia penal sobre a corrupção no Brasil”, Revista
Brasileira de Ciências Criminais, 19(89), 387-405.
51.
Silveira, R. M. J. (2013) “Organização e associação criminosa nos crimes
econômicos: realidade típica ou contradição em termos?” in: Oliveira, W. T.,
Neto, P. F. L., Essado, T. C., Saad-Diniz, E. (coords.). Direito penal econômico:
estudos em homenagem aos 75 anos do professor Klaus Tiedemann. São Paulo:
LiberArts, 157-174.
52. Silveira, R. M. J., Saad-Diniz, E. (2015) “Abordagem penal econômica da lei
anticorrupção: primeiras impressões” in: Silveira, R. M. J., Saad-Diniz, E. (Orgs.).
Compliance, direito penal e lei anticorrupção. São Paulo: Saraiva, 303-352.
53. Soares, J. (2018) “‘É um superministério da Justiça’, diz Bolsonaro sobre pasta
entregue a Moro”. O Globo – Política, 01 November 2018, https://oglobo.globo.
com/politica/e-um-superministerio-da-justica-diz-bolsonaro-sobre-pasta-
entregue-moro-23204742 [31/10/2021].
54.
Souza, L. A. (2014) “Lei Anticorrupção: avanços e desaos”, Boletim IBCCRIM,
22(256), 4-5.
55.
Tiedemann, K. (1995) “Responsabilidad penal de personas jurídicas y empresas
en derecho comparado”, Revista Brasileira de Ciências Criminais, 11, 22-34.
56.
Transparency International (2016) Brazil’s Carwash task force wins Transparency
International Anti-Corruption Award. 03 December 2016. https://www.
transparency.org/en/press/brazils-carwash-task-force-wins-transparency-
international-anti-corruption [31/10/2021].
57. Transparency International (2019) Brazil: setbacks in the legal and institutional
anti-corruption frameworks. São Paulo: Transparency International in Brazil.
58. Uol (2021) “Moro é contratado por consultoria que administra recuperação
da Odebrecht”. Portal de notícias UOL – Política em São Paulo. 30 November
2021. https://noticias.uol.com.br/politica/ultimas-noticias/2020/11/30/moro-
e-contratado-como-diretor-de-consultoria.htm [31/10/2021].
139
USPON I PAD KONTROLE KORUPCIJE U BRAZILU: Javne
institucije, korporacije, usklađenost i stanje nakon
“Car Wash” akcije
Autori se u radu bave analizom problema korupcije i rada nadležnih
institucija u Brazilu. U prvom delu rada su predstavljene relevantne odredbe krivičnog
materijalnog i procesnog zakonodavstva. U drugom delu rada autori su analizirali
“Car Wash” akciju koja otkriva nekoliko primera povezanosti kompanija i političara.
U sledećem delu autori objašnjavaju kako se koncept korupcije razvio u institucijama
i korporacijama u Brazilu uz navođenje relevantnih informacija koje se tiču njihovih
direktora. Zatim se osvrću na period nakon “Car Wash” akcije. U tom delu objašnjavaju
različite ciljeve koji su realizovani dolaskom novih političara. U pogledu toga izveden
je zaključak da je brazilska kriminalna politika u vezi sa suzbijanjem korupcije
unapređena izmenom zakonovadavstva, a što se najviše odrazilo na rad krivičnog
pravoduđa. Nažalost, strateško ograničenje u pogledu strukturnih promena i dalji
razvoj kontrole, praćeni moralnim ubeđenjima sudija i tužilaca sprečili su dalji uspeh
u suzbijanju korupcije u Brazilu.
KLJUČNE REČI: Brazilsko pravo; korupcija; “Car wash” aktivnost; kriminalna
politika; kontrola korupcije.
Matheus de Alencar e Miranda, Leonardo Simões Agapito, Túlio Felippe Xavier Januário
