Portal iMirante: “Many companies will be dissolved or will face heavy fines,” says lawyer
Interview with Portal iMirante in São Luís on administrative and civil conduct for preserving corporate probity under the Anti-Corruption Law.
Interview text
Translated from the original.
ADRIANO MARTINS COSTA
Fábio Medina Osório was in São Luís to speak about administrative and civil conduct for preserving the probity of a company or legal entity of any legal form in its dealings with the Public Administration
Fábio Medina Osório was in São Luís to lecture (Photo: Divulgação)
SÃO LUÍS – In force since 2014, Law No. 12,846/2013, known as the Anti-Corruption Law, punishes companies for acts of corruption against the public administration. Companies will be held liable for unlawful practices and may pay fines of up to 20% of their revenue, which is considered a high amount. In São Luís, to give a lecture to judges and prosecutors at the “Seminar on Administrative Improbity and Crimes against the Public Administration,” the lawyer Fábio Medina Osório, a specialist in improbity and compliance, a requirement of the anti-corruption law that companies adapt their bylaws to higher standards of transparency, spoke exclusively to O Estado about the applicability of that law.
The lawyer delivered the lecture “Practical and procedural aspects of the handling and discovery phase of the Improbity Action,” in which he addressed the practical and theoretical aspects surrounding the main controversies concerning Administrative Improbity actions, seeking to guide judges and members of the MP-MA.
He warned about the main problems that have been leading to the immunities in these judicial proceedings, showing the importance of respecting fundamental rights and speeding up the proceedings, without committing illegalities that taint guarantees and lead to defects that may mar the proceeding before the higher courts.
He also gave his two cents on Operation Car Wash and on the challenge of changing the culture of corruption in the country, and spoke about the unprecedented decision issued on 17 February this year, when the Federal Supreme Court (STF) changed the Court’s case law, holding that it is possible to execute a sentence after a conviction is upheld at the second instance.
Has the anti-corruption law been effective?
The Law has been applicable since January 2014 and, on its basis, many investigations are under way. For that reason, many companies are vulnerable. There is still a timid debate in society on the effects of the Anti-Corruption Law and its consequences. When operations begin to take place, many companies will be dissolved or will suffer heavy fines and will not be able to survive in the market. It is still too early to assess the effects of the Law, but it is possible to say that its consequences will be inevitable.
Where does the main difficulty in complying with the Anti-Corruption Law come from?
The main challenge is to change the culture. Many businesspeople still bet, and will keep betting, on the culture of corruption. The public sector needs to set the example and organize its self-regulation and control structures. The new technological environments allow a drastic reduction of the old patterns of impunity. Brazil currently has advanced normative models. The law applies to everyone, and the Lava Jato Operation is an example of this. Those who adapt fastest to this new reality will gain competitive advantages.
Will actions such as Car Wash (Lava Jato) and Mensalão have a lasting effect on the fight against corruption in Brazil? Can they be treated as an example?
Without a doubt, other initiatives should follow in the wake of the Lava Jato Operation. It is a watershed in the fight against corruption and is already considered one of the largest operations in the world. The strengthening of the oversight institutions is a logical consequence of this republican process, but, well beyond that, goes the specter of Lava Jato, which deepens the concept of citizenship and social control. The self-regulation paradigm imposed on companies is a new reality.
Doesn’t the fact that second-instance rulings already result in the serving of sentences risk causing problems down the road, should the outcomes run contrary to those already established?
Collegiate judgments in the second instance are the most important, because they assess facts and evidence and analyze the justice or injustice of decisions. Higher Courts are not suited to the re-examination of certain points. For that reason, the Federal Supreme Court’s orientation was aligned with the case law and legislation of other developed countries, but also with a possible interpretation of our own legal order.
Unjust cases, which reveal arbitrariness, will challenge habeas corpus, and the higher courts will certainly know how to handle them within a logic of exceptionality. The festival of appeals as mere obstacles to the enforcement of sentences brought about this revision of case law at the STF. The presumption of innocence never had the absolute character that was imagined. For these reasons, now more than ever, it is necessary to invest in prevention.
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Fábio Medina Osório holds a doctorate in Administrative Law from the Complutense University of Madrid and a master’s degree in Public Law from the Federal University of Rio Grande do Sul. He was a Public Prosecutor in Rio Grande do Sul, resigning to practice law privately. He is president of the International Institute of State Law Studies – IIEDE.