The main novelties of Law No. 7/2020 of August 26, 2020 “Measures for Preventing and Countering Corruption”, which entered into force on February 22, 2021, regard such areas as:
1. Liability for corruption crimes
The law establishes corpora delicti of corruption crimes in the public sector, including active and passive bribery, abuse of functions, failure to disclose conflicts of interest and reasonably explain the origin of wealth (in this case the court enforces an order to forfeit in favour of the State the property whose cost exceeds the lawful income of the official) and others. Officials who commit corruption crimes shall be held criminally liable to imprisonment of up to five years or prohibited from holding posts in the public sector for a term of five to ten years.
The Law also introduces liability of legal persons for corruption crimes. In particular, it defines corpora delicti of corruption crimes in the private sector, including business bribery, trading in influence on public bodies, exercise of influence on competitors, money laundering and others which are punishable by fines and such penalties as:
- prohibition to engage in certain activities for a term of six months to three years;
- prohibition to conclude contracts with public authorities for a term of one to three years;
- deprivation of the right to receive subsidies, grants or aid for a term of one to five years;
- publication of the decision at the expense of the offender in two official languages in one of the most widely circulated newspapers.
In addition to the measures of criminal liability, the court can also enforce, at its own initiative or at the request of the prosecutor’s office, an interim measure in the form of freeze or arrest of property and assets that may be subsequently subject to confiscation in favour of the State if they were acquired with proceeds of corruption.
2. Anti-corruption disclosure
The Law obliges, in particular, individuals holding public and municipal posts, managers and servants of specific public bodies, including those who are granted functions in public procurement, tax and customs activities, migration, etc. to file declarations of income, assets and interests.
The declaration should be submitted:
- within 30 days since the assumption of office;
- within 30 days since the suspension from duty;
- annually, for three years since the dismissal.
The declaration is submitted in a digital form and should contain information about:
- family members of the declarant (“individuals that compose his/her household”);
- immovable property and any possible significant improvement of such property;
- movable property: land vehicles, boats, aircrafts;
- expensive property worth over $1,500;
- commercial domestic or foreign companies, whose shares are or were held by the declarant within three years before assuming/having assumed the office;
- balances of current and deposit accounts and other financial products in domestic or foreign banks, cash savings in foreign or local currencies and cryptocurrencies;
- debts and other financial commitments;
- trips abroad and other considerable expenses exceeding $2,500;
- commercial companies, where the declarant is or was within three years preceding the assumption of office a member of the executive board, the board of directors, the supervisory or advisory board or any other collective bodies;
- private entities, including political parties, political unions, associations and other not-for-profit organisations, whose member the declarant is or was within three years preceding the assumption of office.
Declarants should also disclose in their declarations information about income, property and interests of family members (individuals that compose his/her household), i.e. spouses and economically dependent children.
After having filed a primary declaration the declarant shall make a deposit of all cash savings he/she has in any currency whose sum exceeds $1,000 into a bank account. Possession of cash exceeding this limit cannot be subsequently used by officials to explain their expenses; if the sum of cash savings is over $25,000, the official shall explain its origin.
The Anti-Corruption Commission (Comissão Anti-Corrupção – CAC) is the body responsible for collecting, verifying and archiving declarations, whilst the Supreme Court is in charge of the declarations of the President, members of the National Parliament and the Government and officers of the Anti-Corruption Commission.
Having received a declaration, the CAC verifies whether it is fully and correctly filled in and if there is a formal mistake, it notifies the declarant within 15 days that it is necessary to correct the submitted information. If the declarant fails to submit clarifying data, the body where he/she holds a position and the Civil Service Commission are informed accordingly and he/she can be subject to disciplinary measures.
Further detailed verification of declarations by the CAC is obligatory; it regards all submitted declarations and is conducted every two years. In the framework of verifications the CAC is entitled to seek information it deems necessary from any public body, private natural or legal persons with whom he/she or a member of his/her household has transacted or which possesses information about transactions subject to disclosure, as well as from members of the household of the declarant. The CAC also has access to public databases, information of casinos and other gambling dens and that of banks and other financial entities, and can cooperate with foreign public authorities and entities to verify declarations.
Submission of knowingly false information in the declaration or failure to submit the declaration can result in criminal, administrative or disciplinary liability. Submission of the declaration after the set deadline, failure to submit the declaration after a notification by the CAC, submission of an incomplete declaration incurs a fine.
Every two years, the CAC prepares a report containing information about:
- the number of persons obliged to submit declarations;
- the number of persons that failed to timely submit their declarations;
- the number of persons that were imposed criminal, administrative or disciplinary sanctions along with the offences committed and respective penalties;
- the number of persons, whose declarations’ verification allowed detection of situations requiring to adopt measures for preventing/managing conflict of interest.
- An official of the Anti-Corruption Commission who does not perform his/her duties, delays or impedes the verification procedure or unlawfully discloses information contained in declarations is liable to imprisonment or a fine.
3. Corruption prevention
The Law also contains a number of provisions aimed at preventing corruption.
In particular, the Law obliges public bodies to develop and adopt codes of conduct for officials, while organisations of the private sector should draft and enforce codes of conduct for employees and corporate governance codes.
Besides that, the Law introduces restrictions on future employment of officials: in particular, a former official is prohibited from engaging in any activity in the private sector within two years after his/her dismissal if it is related to the functions carried out by the former official or the functions that were fulfilled under his/her supervision.
Under the Law, corruption prevention functions, in particular, development of the National Strategy to Prevent and Combat Corruption, awareness-raising about principles of and instruments for countering corruption among public bodies and entities, nongovernmental organisations, educational institutions and civil society, and training of investigative journalists are entrusted with the Anti-Corruption Commission.