1. The change of the term of sentence for bribe solicitation
The Law amends article 316 of the Criminal Code of Brazil which criminalizes bribe solicitation by an official. According to the new version, this crime is penalized by a prison term ranging from 2 to 12 years or a fine. These changes were introduced in order to align the prison terms for bribe solicitation with those for passive (article 317) and active (article 333) bribery. Before that the maximum prison term for committing the crime provided for under article 316 was of 8 years.
Bribe solicitation should not be confused with passive corruption: in the first case an official solicits or extorts, also resorting to various forms of intimidation, an advantage due to the office he/she holds, meanwhile in the second one an official solicits or accepts an undue advantage in order that he/she acts (refrains from acting) in the exercise of his/her official duties.
2. Non-prosecution agreement
The adopted document also amends Law n. 8.429 of June 2, 1992 On the Liability of Civil Servants for Illicit Enrichment, providing for the possibility to conclude non-prosecution agreements with legal persons in the framework of administrative proceedings (acordo de não persecução cível).
Before that that very article provided for a direct prohibition of the conclusion of any deal or agreement of this kind, which created legal uncertainty. For instance, the abovementioned Law provides for the liability of public officials for committing crimes, including those related to corruption. However, according to this Law, a legal person may be subject to administrative liability as well, in the event that it solicits or facilitates such a crime or gains in some way, directly or indirectly, an advantage from its commitment. At the same time an organization may be subject to administrative liability for having committed corruption offences in accordance with the provisions of Law n. 12.846 of August 1, 2013 On Clean Company, but in certain cases the organization may conclude an agreement on exemptions from liability (acordo de leniência)*. Therefore, it was unclear how the provisions of anti-corruption legislation that provide for the possibility to conclude such an agreement could correspond to the provisions of the law on administrative liability that, in fact, prohibited the conclusion of this kind of agreements. Moreover, it was unclear whether the organization that concluded an agreement on exemptions from liability and relived from sanctions under the anti-corruption law could be subject to sanctions under the administrative liability law**.
The amendments introduced by Law n. 13.964 were aimed at eliminating the existing legal uncertainty. At the same time, this legislative proposal solved only a part of the problem: as the president vetoed the provisions of the first draft of the document that provided for the rules for concluding the non-prosecution agreements, the amended version of the Law does not specify what this agreement will look like, whether it will be considered equivalent to the agreement on exemptions from liability or whether organizations charged with corruption offences will have to separately conclude both of them, and, finally, how this agreement will influence the imposition of sanctions on organizations under the law on administrative liability.
3. Protection of whistleblowers.
The document also amends Law n. 13.608 of January 10, 2018 On the Establishment of Telephone Hotline for Complaints and Information Facilitating Police Investigations, introducing mechanisms for the protection of whistleblowers who report offences in the public sector. In accordance with the amendments, the Union, states, federal districts and municipalities, their local authorities and foundations, state-owned enterprises and mixed-capital companies should establish a post of ombudsman or a specific division for processing disclosures of offences. This measure should provide servants and employees with the possibility to disclose information on the crimes against Government, administrative offences or any other actions (or omissions) that jeopardize public interest.
A whistleblower has also the right to make an anonymous disclosure. His/her personality may be revealed only if it is necessary for verifying the accuracy of information he/she provided or for safeguarding public interest and only after a preliminary notification of the whistleblower and with his/her formal consent.
A whistleblower should not bear civil or criminal liability for disclosing information on offences unless he/she knowingly provided false evidence or information.
In addition to the protection measures provided by Law n. 9.807 On Programmes of Victims and Threatened Witnesses Protection, upon making a disclosure a whistleblower should be guaranteed protection against retaliation or any reprisals of his/her employer, such as unjustified dismissal, reassignment of functions or duties, imposition of financial sanctions, reimbursement obligation, removal of benefits or refusal to provide positive professional recommendation. These unlawful actions taken by the employer will be considered serous disciplinary offences that imply dismissal from public service. A reward twice as large as any damages incurred by the whistleblower as a result of actions or omissions of the employer, which were caused by the disclosure, will be paid to the whistleblower.
The Law also provides for the possibility to pay a reward to a whistleblower if provided information led to recovery of public assets. In this case the amount of the reward may be up to 5 percent of the sum which was recovered.
*According to Law n. 12.846, article 16, the governing body of a public entity or organization may conclude an agreement on exemptions from liability with a legal person in case its cooperation with the investigation permits to identify other persons engaged in unlawful activities or promptly receive information and documents that confirm the investigated offence. Upon concluding this agreement the public entity refrains from filing a claim against the organization, meanwhile the latter may request mitigation of punishment. In particular, according to the agreement, the organization is exempt from such sanctions as special publication of the decision on conviction and ban on receiving incentive payments, subsidies, subventions, donations and loans from public entities or organizations. It may also count on the reduction by two thirds of financial sanctions. However, even if the agreement is concluded, the organization should still repair the damage it inflicted.
**According to Law n. 8.429, such sanctions as fine, forfeiture of illicit profits/assets, freezing of assets, ban on concluding public contracts, receiving incentives, subsidies, subventions, donations and loans from public entities and reparation of damages to the Government may be imposed on a legal person.
