28/12

Put Leonardo Neri and Fabiana Porta

The Administrative Misconduct Act (Law 8429/1992) regulates article 37, §4º of the Federal Constitution and provides for the sanctions applicable to public agents in the event of illicit enrichment in the exercise of a mandate, position, employment or function in the direct, indirect or foundational public administration, classifying the acts as misconduct. Furthermore, in order to be applied, said rule requires proof of intent or fault (subjective civil liability), essential elements to hold any public agent liable, whether or not associated with a private individual.

In 2013, Law 12,846 (Anti-Corruption Law) came into force, providing for the administrative and civil liability of private legal entities in their dealings with public administration entities and individuals. The law includes the concept of objective liability, that is, regardless of the fault of the company that corrupts a public agent.

Despite the similarities – both between the Improbity Law and the Anti-Corruption Law regarding the relationship between private individuals and the public administration – the Anti-Corruption Law provides for the possibility of a consensual solution to the offense through leniency agreements – article 16 et seq. However, this is an abstract rule, since the revocation of the provisions due to the end of the validity of Provisional Measure 703, in 2016, left a legislative gap regarding the regulation of the conditions for entering into agreements between private companies and the Public Authorities that no longer exist.

Therefore, in order to standardize the procedures for concluding leniency agreements, both with regard to the Administrative Misconduct Law and the Anti-Corruption Law, the Federal Public Prosecutor's Office issued Guideline No. 10, which establishes the procedures and guidelines to be observed when concluding extrajudicial agreements or judicial leniency agreements.

The purpose of this Guideline is to protect the legal security of the agreements entered into by the Federal Prosecutor, however, as it is not mandatory, we cannot agree with the infra-legal solution, as the private company will always be subject to the discretion of the member of the Federal Public Prosecutor's Office, which may harm the public interest involved.

Furthermore, the Guidelines, as they do not have a legal character and the creation procedure respects the interests of the criminal prosecution institution, it is clear that they do not fill the legal gap with due effectiveness, legality and impartiality, as any other rule in our legal system would do.

It should be noted that the Public Prosecutor's Office does not have legislative competence, therefore the Guidance has the result of legal uncertainty in the celebration of agreements.

For this reason, any individual or legal entity interested in entering into a leniency agreement with the Federal Public Prosecutor's Office must be advised by a lawyer, to avoid loopholes and uncertainties in the legal procedure.