19/10/2023 – Brazil has sanctioned large-scale foreign bribery schemes through non-trial resolutions with three legal persons, including as part of one of the most prominent multi-jurisdictional resolutions to date involving foreign bribery allegations. While the Working Group commends Brazil for this success, nevertheless Brazil has only a limited number of enforcement proceedings still ongoing. No natural person has yet received a final conviction for bribery of a foreign public official.
The 45-country Working Group has just completed its Phase 4 evaluation of Brazil’s implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. In addition to the limited level of enforcement, the report expresses serious concerns about Brazil’s statute of limitations for natural persons which remains inadequate to effectively sanction foreign bribery and Brazil’s incomplete whistleblower framework, which needs to be enhanced to protect those who report foreign bribery allegations, especially in the private sector. The report also reflects concerns about a chilling effect of perceived threats to independence of prosecutors in foreign bribery cases. Finally, the Working Group will follow-up on the impact that a September 2023 Supreme Federal Court decision about tainted evidence obtained in connection with a leniency agreement could have on other trial and non-trial resolutions as well as concerns regarding Brazil’s ability to obtain or provide mutual legal assistance in foreign bribery cases.
The Working Group has accordingly recommended that Brazil:
- Increase the sanctions for foreign bribery for natural persons.
- Address by legislative and/or any other fully effective institutional measures, the unwanted consequences of the limitations period for foreign bribery based on the defendant’s actual sentence to ensure adequate time to investigate and prosecute natural persons.
- Protect foreign bribery cases from potential political bias by law enforcement agents as well as the possible arbitrary use of disciplinary or other accountability measures.
- Swiftly revise its whistleblower protection framework to ensure that private-sector persons who report foreign bribery allegations are expressly covered.
The report also notes positive developments. Brazil has further refined its legal and institutional framework for imposing corporate liability and successfully used leniency agreements, its primary non-trial resolution mechanism for companies to sanction foreign bribery, despite lingering questions raised after evidence obtained through a specific leniency agreement was declared inadmissible. The Office of the Comptroller General and the Federal Prosecution Service have also played a significant role in combating transnational corruption involving foreign bribery, especially through their willingness and ability to cooperate closely with counterparts in Working Group and non-Working Group countries, thus collectively contributing to resolutions imposing some of the largest global fines to date. Individual Brazilian agencies’ concerted efforts to issue guidance, promote corporate compliance, and enhance transparency should contribute to fostering a cleaner business environment in Brazil.
The Working Group adopted the report on Brazil on 12 October 2023. The report is part of the Working Group’s fourth phase of monitoring, launched in 2016. Phase 4 looks at the evaluated country’s particular challenges and positive achievements. It also explores issues such as detection, enforcement, corporate liability, and international co-operation, as well as covering unresolved issues from prior reports. Pages 96-100 of the report contain the Working Group’s recommendations. Brazil will report to the Working Group in October 2025 on its implementation of all recommendations and enforcement efforts.
For further information, journalists are invited to contact Amelia Godber, Communications Officer, OECD Anti-Corruption Division, +33 (0)1 45 24 85 75. For more information on Brazil’s work to fight corruption, please visit: https://www.oecd.org/daf/anti-bribery/brazil-oecdanti-briberyconvention.htm.