The participation in academic meetings where the two topics compliance and corruption (a word that refers to a serious kind of “nonconformity”) were discussed inspired me to write a few lines about the role that the legal proceedings can play in combating the latter. The subject is included on the agenda of jurists, and is, unquestionably, an interdisciplinary issue that imposes relevant challenges.
The first of them is based on the fact that the fight against corruption needs to be efficient. It is about attacking the pathology that has been ingrained in the country (although obviously not our exclusive prerogative), and which operates in a systematic and, in some cases, sophisticated manner. Therefore, the criminal procedure and the investigation shall be prepared to deal with the expected reaction from those who, for a long time, have become used to an environment that is now intended to be modified.
For this purpose, it is necessary from the very beginning that the agents in charge of such tasks are given adequate conditions, not only personal but also material. In order to illustrate it, if corruption is some kind of disease that has reached real pandemic proportions, prophylactic actions alone must not be enough to have effects on the disease dissemination, but duly equipped hospitals and well-prepared physicians are also required. Therefore, the agencies for the investigation, prosecution, sentencing, trial, and also those before which agreements are likely to be secured (plea bargains offered to individuals who have committed criminal violations, and corporate or leniency agreements offered to corporations) need to have resources – even technological ones – that can allow timely and efficient identification and repression of the phenomenon.
To arrange this structure is not always easy: besides the most obvious question concerning the lack of financial resources in the context of the government’s precarious situation (to be euphemistic), the prioritization of measures as well as directing them to such agencies may depend on people who are not effectively interested in fighting corruption.
On the other hand, an inadequate structure might not be just a material problem, but also a normative issue. The original jurisdiction of the Brazilian Supreme Federal Court in criminal matters, ruled by the “parliamentary immunity”, is a good example for this. The idea of granting a court jurisdiction determined by that criterion is not in itself necessarily inaccurate and, in many cases, it is justifiable. However, what happens is that the aforementioned Court, in the broad context of its relevant jurisdiction, is not prepared to deal with the amount of original criminal lawsuits that have been brought to it. Therefore, this situation needs to be changed. By the time this article is being written, the plenary session of the Brazilian Supreme Federal Court has already decided, by majority vote, on the unfeasibility of the rule. However, it would be more reasonable if the Congress would change the current system, and this is apparently being expected, we hope not in vain. This, in fact, is a good illustration of what was explained above about the prioritization (or lack thereof) of the fight against corruption.
In addition to an adequate structure, it is necessary to ensure that the agents in control are independent, which – it must be admitted – is something beyond the requirements of impersonality for the agencies that are part in the criminal procedure, and impartiality for the sentencing bodies.
This independence is constantly challenged by different factors. Some of them are external, and, among them, the pressure put by the public opinion is a particularly sensitive element. On the one hand, it is decidedly not possible to investigate, to sue or to judge based on the popular clamor. The state of population dissatisfaction – which is relevant – can not be regarded as a homogeneous phenomenon insofar as it has different expressions and causes. It would be naïveté or bad intention to imagine that this dissatisfaction could be adequately overcome based on the responses given by some of the public servants only. This is important because giving in to such pressure may not only distort the exercise of the job, but at the same time it may stimulate the simultaneous and undue exercise of different attributions or competencies for the same facts – in a disproportionate and unreasonable way. That is to say, if and when the goal is to appease the social clamor, there is a great risk that many – if not all – of the public servants want to take themselves the initiative of the crime procedures, sentencing or even a consensual settlement (if and when possible). And this is extremely dangerous for the compliance of the due process of law.
However, if the popular clamor should not lead the course of the anti-corruption measures, one can not omit the fact that the communication between the agents in charge of the criminal procedures and sentencing, and the society as a whole need to be improved. Not only the lack of information, but also distorted or imperfect facts about the data from the legal proceedings contribute to foster such dissatisfaction. Therefore, good communication would help to improve this essential dialogue between the public authorities and the citizens.
Moreover, the independence of the agencies in charge of the anti-corruption function is at risk, due to internal factors. This is evident among the police authorities and also within the judiciary, which suffers from internal disagreements that go far beyond the mere divergence in forming opinions about law and facts. The situation in the Brazilian Supreme Federal Court is a good illustration for this.
Finally, in order for the anti-corruption measures taken by the state to be efficient, they must necessarily occur within the limits of the due process of law. It is not only a matter of ensuring defense and the adversarial system, but mainly of coordinating the activities of the different agencies in charge of the investigation, the crime procedure, the sentencing, and even the consensual settlements. The uncoordinated and redundant state actions result in the lack of reasonableness and proportionality. In this context, even the consensual settlements, which are aimed at pacifying by overcoming the controversies, fail to reach their purpose.