This chapter focuses on the implementation of enforcement mechanisms in Brazil. First, the chapter reviews existing channels for reporting misconduct, how reports and complaints are handled and what protection is granted to complainants in view of providing recommendations to strengthen the whistleblower protection framework. Second, the chapter takes stock of strengths and weaknesses of the disciplinary regime in the Brazilian public sector. It recommends monitoring trust in the disciplinary system and strengthening disciplinary systems at subnational levels. Finally, the chapter explores ways to improve independence safeguards for judges and prosecutors and reinforce citizens’ trust in democratic institutions.
OECD Integrity Review of Brazil 2025
Consolidating Progress on Public Integrity
Abstract
Enforcement of laws and regulations demonstrates that governments are committed to upholding integrity and that public officials cannot act with impunity. If carried out in a fair, co-ordinated, transparent and timely manner, enforcement mechanisms can promote confidence in the government’s public integrity system, serving to strengthen its legitimacy over time and helping to instil integrity values in individuals, organisations and society as cultural norms (OECD, 2017[1]). A coherent and comprehensive public integrity system requires enforcement mechanisms to be credible and effective and avoid impunity that could undermine the rule of law, trust in institutions and could provide the breeding ground for more unethical practices, apathy, and cynicism. Enforcement mechanisms are the necessary “teeth” and the formal means by which societies can ensure compliance and deter misconduct. Therefore, the OECD Recommendation on Public Integrity calls on adherents to ensure that enforcement mechanisms provide appropriate responses to all suspected violations of integrity standards by public officials and all others involved in the violations (OECD, 2017[2]).
This chapter examines the implementation of enforcement regimes in Brazil in a systematic way. It starts from the reception of reports as one channel triggering the investigation of integrity violations and the whistleblower protection measures in place. Whistleblower protection is integral to the enforcement of public integrity rules, which can only be effective when citizens and public officials feel safe to report integrity violations (OECD, 2020[3]). Next, the analysis focuses on existing disciplinary mechanisms in Brazil. Disciplinary enforcement is grounded on the employment relationship with the public administration and the specific obligations and duties coming along with it. Breaching these obligations and duties leads to sanctions of an administrative nature, such as warnings or reprimands, suspensions, fines or dismissals. To that end, disciplinary enforcement mechanisms help public administrations ensure effective accountability. They demonstrate that accountable institutions are liable for their decisions and actions and provide for a fair solution in cases of culpable breach of duty of their employees. Finally, when examining the adequacy of enforcement mechanisms in promoting trust in the public integrity system as a whole, a key element to consider are the levels of judicial independence, both actual and perceived. The chapter examines the application of judicial independence standards in Brazil in light of the OECD Recommendation on Public Integrity, which requires that enforcement mechanisms provide responses to all suspected violations of public integrity in a fair and objective manner (OECD, 2017[2]). The principles of fairness and objectivity should apply through all phases of enforcement regimes and are closely linked to independence, an essential characteristic of judicial systems that guarantees every person the right to have their case decided in a fair trial, based on legal grounds and evidence, and free from improper influence (OECD, 2020[3]).
An effective whistleblower framework is recognised as a core component of any public integrity system. Therefore, the OECD Recommendation on Public Integrity calls on adherents to ensure the implementation of whistleblower frameworks with the following characteristics: clear reporting channels, prohibition of formal and informal work-related reprisals, clear types of protection guaranteed, effective reviews and investigation of complaints and awareness-raising measures (OECD, 2017[2]). As analysed in Chapter 2, these characteristics contribute to and are supported by a broader open organisational culture, where public officials feel safe actively identifying, raising questions, concerns or ideas about and responding to potential violations of public integrity (OECD, 2020[3]).
Recognising the relevance of whistleblowers in safeguarding public integrity and in line with the Recommendation, the Government of Brazil has introduced significant policy reforms to ensure their protection. A strength of Brazil’s framework is that it provides quite a broad definition of “whistleblowers”. More specifically, Article 4(A) of Law 13.608/2018 states that:
...any person has the right to report information on crimes against the public administration, illicit administrative or any actions or omissions harmful to the public interest.
The public interest dimension, such as the reporting of criminal offences and unethical practices, rather than just a personal grievance is a key characteristic common to whistleblowing protection, along with the disclosure of wrongdoing connected to the workplace and the reporting of wrongdoing through designated channels and/or to designated persons (OECD, 2016[4]).
Given their recent establishment, it is still too early to determine the overall effectiveness of these measures. Data from 2019-2021 show that fear of reprisals continues to create a feeling of insecurity among citizens and prevents them from reporting incidents of corruption, as also explained in Chapter 3 regarding the need to cultivate a shared sense of responsibility for public integrity throughout society. According to the 2019 Global Corruption Barometer, 69% of respondents believe that Brazilian citizens risk retaliation or other negative consequences if they speak out in the fight against corruption (Transparency International, 2019[5]). In addition, levels of insecurity are particularly high among civil servants. A World Bank and CGU survey of Brazilian public servants found that in total, 51.7% of all respondents did not feel safe enough to report illegal conduct, despite the fact that, as cited in surveys in Chapter 3, there is awareness that failing to report makes them accomplices to the act. According to the same survey, 27.4% of the participants who blowed the whistle (a total of 2, 417 respondents) had actually suffered retaliation after reporting corruption (World Bank, 2021[6]). In light of these findings, the Government of Brazil could focus on several areas to strengthen whistleblower protection mechanisms and ensure effective implementation.
Brazil could consolidate the legislation for receiving reports on corruption and for providing whistleblower protection to avoid fragmentation of measures across various laws
Article 116 (VI) of Law 8.112/1990 (herein the “Civil Service Code”) established the obligation of civil servants (servidores públicos) to report any wrongdoings either to senior managers or to a competent agency. Protection measures were introduced for the first time by Law 9.807/1999, which put in place a service for the protection of victims and witnesses, under the supervision of the Ministry of Justice. Nevertheless, the scope of application was quite narrow and did not offer protection measures to whistleblowers who were not involved in the reported act, either as victims or as witnesses. Law 13.608/2018 and its supplementary Decree 10.153/2019 aimed to address this shortcoming. The regulations of 2018 and 2019 introduced protection mechanisms for whistleblowers with regards to confidentiality, immunity and protection against retaliation. Finally, the new measures include financial rewards of up to 5% of the value of the assets recovered as a result of the whistleblowing report. Box 5.1 provides an overview of the applicable primary and secondary legislation.
The fragmentation of measures across various legislations may create unclarity regarding the extent of applicable protection and undermine Brazil’s efforts to encourage citizens and public officials to speak up about potential violations of public integrity standards. For this reason, a growing number of OECD countries have opted for dedicated whistleblower protection laws. In fact, as shown in Figure 5.1, OECD countries have established more dedicated whistleblower protection laws between 2010 to 2015 than in the previous quarter-century. This trend is even higher among EU countries after the adoption of the EU Directive 2019/1937 on the Protection of Persons (EU Whistleblower Protection Directive). In line with these international trends, Brazil could consolidate the above provisions in a single, clear and more accessible law. Indeed, consolidation has practical benefits both for those who implement the law and for those who need access to or use it.
Over the past years, Brazil has invested efforts in strengthening the protection of whistleblowers through several laws and regulations. More specifically:
Constitution of the Federal Republic of Brazil, which in Article 37 (3) (I) provides the legal basis for the right to submitting complaints and safeguards user participation in direct and indirect public administration.
Law 8.112/1990, which provides for the legal regime of civil servants of the Union, autarchies and federal public foundations and establishes the obligation of civil servants to report any observed wrongdoing.
Law 9.807/1999 on the protection of victims and witnesses, which may also apply to whistleblowers.
Law 12.527/2011 on access to information, which in Article 31 determines the process for treating personal information and applies in the case of whistleblower reports.
Law 13.460/2017 on the participation, protection and defence of the rights of users of public services in the public administration, which in Chapter III establishes the right to submit complaints.
Decree 9.492/2018, which further regulates Law 13.460/2017, creates the Ombudsman System of the Federal Executive Branch (Sistema de Ouvidoria do Poder Executivo Federal, SisOuv) and establishes the complaints management processes implemented by its sectoral units.
Law 13.608/2018 on the establishment of telephone services for the reception of complaints and the rewarding of information that assist police investigations. The Law outlines the protection measures applying to whistleblowers with regards to confidentiality, protection from retaliations and compensation.
Decree 10.153/2019, which further regulates Law 13.608/2018 and establishes safeguards to protect the identity of whistleblowers who reveal irregularities committed against the direct and indirect federal public administration.
The implementation of the above primary and secondary legislation is further regulated by Ordinances (“Portarias”) issued by the Office of the Comptroller General of Brazil (Controladoria-Geral da União, CGU). The most recent one is Ordinance 116/2024, which implements reforms on several issues, including the re-organisation of the SisOuv units, the pseudonimisation process applying to submitted reports, the treatment of anonymous reports and the protection of whistleblower’s identity.
At the sub-national level, local government entities are implementing their own regulations on the protection of whistleblowers, which may vary depending on the administrative maturity and the size of each entity.
Source: OECD research and information provided by government stakeholders.
Source: OECD (2016[4]), Committing to Effective Whistleblower Protection, http://dx.doi.org/10.1787/9789264252639-en.
To strengthen awareness and willingness to report, Brazil could consider clarifying how existing internal and external reporting channels interact
At the federal level, Brazil has developed a system of Ombudsperson offices (“ouvidorias”), whose mandate includes the reception of reports on administrative wrongdoings (see also OECD (2022[7])). Under Article 4(A) of Law 13.608/2018, as amended by Law 13.964/2019, all governmental agencies must maintain such an office with the necessary resources to receive those reports. As of 2018, the CGU had integrated all 300 ouvidorias units under its supervision through the creation of the Ombudsman System of the Federal Executive Branch (Sistema de Ouvidoria do Poder Executivo Federal, SisOuv) (OGU, 2022[8]). To facilitate the reception of reports, CGU created a centralized platform (Platform for Ombudsman and Access to Information - Plataforma Integrada de Ouvidoria e Acesso à Informação, Fala.BR), enabling public servants and citizens to communicate wrongdoing in the federal administration. Since 2014, the CGU has registered 3.073,081 reports of wrongdoing, out of which 2 745,706 have been responded, 57,693 are currently handled, 257 186 have been archived and 178 349 have been referred to external bodies for further measures (CGU, 2024[9]). It is not possible to determine, however, which corruption cases have been uncovered by this mechanism (Transparency International, 2021[10]).
In addition, reports of ethical breaches involving any public official are also received by the Ethics Commission of the public organisation where the official works. Ethics Commissions are part of the Ethics Management System of the Federal Executive Branch (Sistema de Gestão da Ética do Poder Executivo federal, SGEP), which was established through Decree 6.029/2007. According to Article 7 (II) (c) of the Decree, Ethics Commissions are responsible for investigating ethical misconduct within the organisation, by means of a complaint or ex officio. Finally, complaints are also received by the hierarchical supervisor and the corregedorias, the sectorial units of the Correctional System of the Federal Executive Branch (Sistema de Correição do Poder Executivo Federal-SISCOR).
In cases of a breach of ethics involving a high public official, reports may be submitted to the Public Ethics Commission (Comissão de Ética Pública, CEP), which acts as an advisory body to the President of the Republic and Ministers of State (Presidente da República e Ministros de Estado) in matters of public ethics. The CEP is responsible for administering the application of the Code of Conduct of the Federal High Administration (Código de Conduta da Alta Administração Federal, CCAAF) and resolving dilemmas about the interpretation of the CCAAF rules and the Code of Professional Ethics for Civil Servants of the Federal Executive Branch (Código de Ética Profissional do Servidor Público Civil do Poder Executivo Federal). In that context, the CEP receives complaints relating to ethical infractions of members of the sectorial Ethics Commissions or any of the authorities subject to CCAAF rules, including Ministers and Secretaries of State. Complaints are submitted by e-mail or by post. In both cases, complainants are required to use a standard template (Formulário de Denúncia contra Autoridade). The complaint must specify, at the minimum, the identity of the reported authority, the authority’s position and the facts concerning the reported misconduct, as well as provide any supporting evidence. The complainants do not need to provide information concerning their identities (Ética Pública, 2021[11]).
Besides Fala.BR, at the sub-national level, most states maintain a hotline for receiving reports on criminal activity, including crimes against the public administration. When using the hotline, individuals can choose to remain anonymous or to reveal their identity. In the latter case, the identity is to be kept secret by the authority receiving the report. Currently, there is a shortage of data on the effectiveness of these hotlines, as most states do not provide regular statistics on reports received and the measures taken in response to them. So far, it is not possible to determine the numbers of received reports related to corruption offences (Transparency International, 2021[10]). For the reception of reports on administrative misconduct or other types of irregularities, local government entities have free access to the Fala.BR platform, as long as they participate in the National Network of Public Ombudsmen (Rede Nacional de Ouvidorias Publicas). The Network currently counts 2,745 Ombudsmen bodies of the state and municipal levels and participation is optional (Rede Nacional de Ouvidorias, 2024[12]). After joining the Network, entities wishing to access Fala.BR are required to adhere to the “Terms of Voluntary Adhesion to the Integrated Platform for Ombudsman and Access to Information” Box 5.2, in accordance with Joint Normative Instruction No. 26 of 11 December 2023 (Instrução Normativa Nº 26, De 11 De Dezembro De 2023).
The Terms of Adhesion to Fala.BR is an agreement between interested public entities (e.g. city halls, chambers, state government, autonomous social service, professional councils and others) with the Federal Government as represented by the Office of the Comptroller General of the Union (CGU) to adhere to certain commitments relating to the use of the Fala.BR platform. In particular, adhering entities are required to:
Observe the guidelines of the CGU regarding the procedures related to the use of the Fala.BR, as well as to report any incidents or failures in its use.
Publish on institutional webpages the link and digital banners with the visual identity of the Fala.BR in the standard offered by the Office of the Comptroller General of the Union.
Disseminate and publicise the Fala.BR Platform in order to constitute an effective channel of access to citizens.
Receive, analyse and respond to reports, requests and appeals received through the Fala.BR Platform, within the deadlines provided for by Law.
Protect confidential and restricted access to information provided through the Platform, pursuant to Law 12.527, of 2011, and in accordance with the principles of Law 13.709, of August 14, 2018.
Ensure the proper use of the Fala.BR Platform, committing to use the information made available to it only in the activities that, by virtue of the law, it is incumbent upon it to carry out.
Designate at least one user as “manager”, to carry out the entity's configurations in the System, the administration of users and the dialogue with the support teams of the Ombudsman and Access to Information modules.
Register and maintain the records of users internal to the entity for the use of the system, as well as the entity's data on the Platform.
Ensure the security of the system, safeguarding access passwords and inactivating users who can no longer access the Fala.BR.
Investigate cases of misuse of the Fala.BR Platform with a view to possible administrative and criminal liability.
Disseminate information to servers, in particular on Fala.BR updates, data updating needs and training and capacity building opportunities.
Integrate, when necessary, the Fala.BR Platform with the software used by the entity.
Commit to not register and not seek any equivalent form of protection or appropriation of the Platform in order to allow the transfer to third parties, regardless of whether or not the CGU registers the Platform Fala.BR before the competent bodies.
Communicate to CGU any expectation of increase in the number of received reports, requests and resources for access to information, which is equal to or greater than 30% increase to that initially indicated.
In turn, the CGU has the following obligations:
Provide access to, manage, update and maintain the Fala.BR Platform.
Provide technical support to the adhering entities, regarding the functionalities of the Fala.BR.
Register at least one user with the profile of “manager”, designated by the adhering entity.
Produce, update and keep available the user manuals of the Fala.BR.
Provide digital banners with visual identity to be published in the institutional webpages of the members, as well as respective URLs to direct to the Fala.BR.
Adopt safeguards to ensure the security, integrity and timeliness of the Fala.BR database.
Safeguard access to the Database of received reports, requests and resources for access to information forwarded to the entities, for access only to authorized users.
Investigate cases of misuse of the Fala.BR Platform, with a view to possible administrative and criminal liability.
Ensure the proper use of the Fala.BR Platform, committing to use the data made available to it only in the activities that, by virtue of law, it is incumbent upon it to carry out.
Offer instructional resources to the users of the entities.
Monitor the performance of the Platform, in order to monitor if there are entities with a large volume of registered demands (received reports, requests and resources for access to information), which are compromising the available computational resources, and generating an impact on the use of the Platform by the bodies of the Federal Executive Branch and other adhering entities.
As part of the Terms of Adhesion, adhering entities should indicate the person assigned to the role of “manager” of the Fala.BR platform. The Terms are signed free of charge and do not entail the transfer or availability of financial resources between the parties. Finally, the Terms are signed for an initial duration of five (5) years, which can be extended. The Terms also include clauses for dispute resolution and the applicable jurisdiction.
Source: Government of Brazil (2023[13]), Instrução Normativa No. 26 de 11 de Dezembro de 2023, https://www.in.gov.br/en/web/dou/-/instrucao-normativa-n-26-de-11-de-dezembro-de-2023-529879870.
Overall, the availability of multiple reporting channels is a commendable feature of Brazil’s whistleblowing framework and a recognised international good practice to enhance disclosures and maximise the protection of whistleblowers (OECD, 2017[1]). However, such mechanisms should be well co-ordinated and their functioning should be made understandable to potential users. In Brazil, it is unclear how the existing internal and external reporting channels interact. For example, ouvidorias are sectorial offices of the Ombudsman (Ouvidor-Geral da União, OGU) within public entities operating as channels and receiving reports, which are processed through Fala.BR. The ombudsmen operating within the ouvidorias form the Federal Executive Ombudsman System and their activities are supervised by the Federal Ombudsman's Office. However, it is up to the ombudsmen of each institution to receive and process complaints directed in their organisation. According to Article 4 of Decree 10.153/2019 applying to the direct and indirect federal public administration, entities should ensure that complaints are received exclusively through the ouvidorias. At the same time and as explained above, reports seem to also be received internally by the Ethics Commissions and senior managers. Law 13.608/2018 also establishes the obligation of public agencies to create complaints systems, such as complaints hotlines, although it is not clear to what extent this has been implemented across the public sector and if these are different from the channels established through the ouvidorias (Côrtes, 2021[14]).
Ultimately, this may create confusion to both citizens and public officials willing to speak up, as to how their report will be handled and by whom. The issue is relevant especially for public officials who may not know to whom to turn to, in case they observe a misconduct or other type of irregularity occurring within their working environment. According to interviews carried out by the OECD with stakeholders, Fala.BR is the main reporting tool used in practice and public officials are also expected to use the platform. This approach was chosen to centralise whistleblowing channels, and it presents considerable advantages, as the platform allows the monitoring and follow-up of cases. Nonetheless, there is a risk that the encouraged use of Fala.BR as the main reporting tool may compromise the function of other internal channels. Indeed, Article 4(3) of Decree 10.153/2019 states that public officials who do not perform functions in the ouvidorias and receive complaints of irregularities committed against the federal public administration must immediately forward them to the ombudsman unit operating within the entity without publicising the content of the complaint or any element identifying the complainant. Public officials receiving such complaints advise reporting persons on the need for the complaint to be forwarded through the Federal Executive Branch Ombudsman System. This could indicate a general direction to streamline the submission of complaints through Fala.BR. Moreover, fact-finding carried out in the framework of this Integrity Review indicated that many public entities have not established internal reporting channels and even if these exist, they are little known to public officials and citizens or are not trusted. The general direction to streamline the submission and processing of complaints through Fala.BR combined with the inconsistent creation of internal reporting channels across the public sector is a critical shortcoming in Brazil’s whistleblowing framework. Indeed, both levels of internal and external reporting should operate concurrently so that potential whistleblowers have a choice regarding where they would like to submit their disclosures (OECD, 2016[4]).
Brazil could consider clarifying how existing internal and external reporting channels interact to strengthen actual awareness of these channels and to promote the willingness to report. This could be achieved, for example, by providing clear guidance about where reports can be filed within public entities and distinguishing the internal reporting process from complaints submitted through Fala.BR. In this context, Article 7.2. of the EU Directive 2019/1937 on the Protection of Persons (EU Whistleblower Protection Directive) who report breaches of Union Law encourages reporting through internal reporting channels first where the breach can be addressed effectively internally without, however, limiting access to external reporting and/or public disclosures. While this prioritisation is not a “one size fits all” solution it can provide a good basis for clarifying the use of internal and external reporting channels.
Strengthened co-ordination between existing reporting channels could help avoid duplication of efforts and enhance the effectiveness of investigations
The creation of multiple reporting channels shows both strengths and some weaknesses with regards to the effectiveness of the whistleblowing system. In particular, a variety of uncoordinated bodies responsible for investigating whistleblower allegations runs the risk of initiating multiple investigations for the same report, for instance, if whistleblowers submit their allegations to more than one competent body at the same time.
In addition to clarifying the interaction between existing reporting channels recommended above, Brazil could also consider ensuring appropriate co-ordination mechanisms among these. This could help avoid wasting resources and promote the effectiveness of investigations. In addition, strengthened co-ordination could increase transparency regarding the functioning of the system, while protecting the identity of whistleblowers as much as possible.
Such co-ordination mechanisms may include: sharing information on ongoing investigations, organising regular meetings to discuss ongoing issues and arising operational challenges, and establishing common precedents that will guide decision making and ensure consistency across all preliminary investigations carried out upon the reception of a report (OECD, 2017[1]).
Brazil could consider improving confidentiality and anonymity safeguards to encourage public officials and citizens to speak up about potential misconduct in the public sector
Law 13.608/2018, which applies to the Union, the States, the Federal District and the Municipalities, is the first effort towards consolidating Brazil’s whistleblower protection framework, including regulations about the confidentiality of reports. According to Article 4(B) of the Law, the informant has the right to preserve his identity, which is only revealed for reasons of public interest or if it is required for the investigation of the facts. As an additional safeguard Article 4(B) (i) prohibits the disclosure of the informant’s identity without his or her formal consent. The Law is supplemented by Decree 10.153/2019, which lays out more specific regulations for the protection of the identity of whistleblowers in the direct and indirect federal public administration. According to the Decree, whistleblowers are protected through a “pseudonymisation” process, through which the identification details cannot be associated directly or indirectly with a specific individual. As far as anonymous complaints are concerned, Fala.BR allows anonymous complaints to be lodged, which, however, do not allow the complainant to follow up on the measures taken.
As such, the current legislative framework already provides a solid basis for the protection of whistleblowers’ identity in Brazil. Nevertheless, there are areas where further improvement is needed. Firstly, the law does not define or specify the reasons of public interest or other circumstances, which may require the disclosure of the whistleblower’s identity. This leaves wide discretionary powers to the public officials handling the complaints to determine the criteria for such disclosure on their own and creates – real or perceived – unsafety for potential whistleblowers. Despite the requirement to obtain the whistleblowers’ consent to reveal their identity, the law currently does not determine what happens to the report, in case the whistleblower refuses to agree.
Secondly, the “pseudonimisation” process, which ensures confidentiality of reports submitted through Fala.BR, is not automated. In practice, this means that the public officials of the ombudsmen units receiving the reports must undertake actions to “hide” the identity information in the system and that they themselves have full access to this information. Articles 45 and 46 of CGU Decree 116/2024 stipulate that in some cases, whistleblowers must even confirm their identity before the ombudsmen if the processing and response require the delivery of personal information to the whistleblower.
This lack of adequate confidentiality mechanisms is an issue that was already highlighted in an OAS report from 2018 (OAS, 2018[15]). Interviews with public officials conducted for the purposes of this Integrity Review asserted that both citizens and public officials show distrust towards the current system, especially with regards to the management of their personal data and are not confident that their identity will not be revealed at some point. This is further highlighted in Figure 5.2 below, which shows that the numbers of anonymous reports received by SisOuv units in the form of “communications - Comunicaçãos” is consistently higher than the number of formal reports received throughout the years 2019-21. It is not clear, however, to what extent these anonymous reporters are protected by the existing legal framework.
Source: OGU (2022[8]), Protección al denunciante en Brasil: avances recientes y próximos desafíos, https://www.oas.org/es/sla/dlc/mesicic/docs/marzo2022_ss_brs_ppt.pdf.
In 2023, CGU co-ordinated the publication of a diagnostic study with findings and recommendations aimed at improving whistleblower protection practices in Brazil (CGU, 2023[16]). Findings were drawn from a survey carried out among members of the National Ombudsman Networks on the basis of 298 responses received across all branches of government, including entities at the subnational level. The policy paper was developed and published in implementation of Action 02/2023 of the National Strategy to Combat Corruption and Money Laundering (ENCCLA), which envisages proposals on improving public reporting programs against corruption, particularly aimed at increasing trust and citizen engagement in reporting channels. Indeed, one of the key findings of the policy paper is the importance of confidentiality and anonymity in the processing of data through reporting channels.
According to international standards, the identity of the reporting person may only be disclosed where there is a legal obligation to do so, and such obligation should be confined to the context of investigations by national authorities or judicial proceedings and should be necessary and proportionate, including with the view to safeguard the rights of defence of the person concerned. As a rule of thumb, exceptions to confidentiality should be clearly and narrowly defined in legislation. Confidentiality safeguards should apply to any type of information, which may directly or indirectly deduce to the identity of the reporting person (Transparency International, 2020[17]).
In this context, there are several measures that Brazil could consider for strengthening the existing confidentiality and anonymity safeguards, which could increase trust in the effectiveness of whistleblowing protection measures. This is particularly relevant as a recent survey demonstrated that 27.4% of participating whistleblowers (a total of 2 417 respondents) had actually suffered retaliation after reporting corruption (World Bank, 2021[6]).
Firstly, Brazil could further develop the Fala.BR platform to allow for the automatic pseudonimisation of identity information. This could be achieved through the automatic allocation of a unique identification number to reporting persons that allows them to communicate anonymously to receive feedback or answer follow-up questions from investigators. Moreover, the use of technological means such as the TOR (The Onion Router) browser to hide the IP of the reporting person could help ensure anonymity. TOR systems send differently encrypted versions of the message through a network of computers in a way that makes it impossible to know, for any of these stations and for external parties, anything about the trajectory, except the previous or next station, or what the message contains. The use of TOR systems may be coupled with case credentials that support communications with stakeholders. Another option would be to support anonymous communications by a process that allows the linkage only of the messages, not the sender. Box 5.3 describes a recent project from Italy, where the Anti-corruption Authority (ANAC) in co-operation with Transparency International Italia is promoting the use by all public sector entities of such a platform to guarantee the protection of the identity of the reporting person and the possibility of communication throughout the process. The objective is for public entities to use the platform as an internal reporting tool (ANAC, 2021[18]). Apart from ensuring confidentiality, the use of digital technology tools in public organisations and the advertising of their benefits and guarantees can inspire confidence in the reporting system, as well as trust that reports will remain anonymous.
Whistleblowing PA is a project aiming to offer all Public Administrations free IT software to communicate with whistleblowers, based on methods that guarantee anonymity. Every Italian public institution can join the project by registering online. Once the registration is completed, the institution has access to its own personal platform which will be made available in the cloud and accessible on the internet at a specific address for each Public Administration.
The Whistleblowing PA IT platform is created using the GlobaLeaks software and complies with the law on the protection of whistleblowers. It allows the Head of Corruption Prevention to receive reports of offenses from the employees of the entity and to communicate with whistleblowers, even anonymously. The platform is available with a questionnaire specifically designed by Transparency International Italia for the fight against corrupt activities and compliant with Regulation 179/2017. It guarantees the maintenance and updating of the platform and does not require technical interventions by internal or external entities.
Apart from access to the platform, the project also provides participating Public Administrations with the following:
training materials in e-learning mode
specific texts on whistleblowing and on the use of the platform to be published on the body's website
standard text for a newsletter addressed to the employees of the institution
poster in digital format to be printed for posting at the institution
the availability of an assistance forum and exchange of best practices
data export and configurations for migration to autonomous information systems (no lock-in)
source code available for customisation.
Following continuous requests for support received from other entities, the project will be expanded to also cover public and private controlled companies.
Source: WhistleblowingIT (n.d.[19]), Homepage, https://www.whistleblowing.it/ (accessed on 6 August 2025).
Secondly, as analysed above, Brazil could limit discretionary decisions in the interpretation of confidentiality rules by clearly and exhaustively defining specific exceptions. For example, in France, the disclosure of information identifying the whistleblower without his or her consent is only allowed to judicial authorities.
Finally, the law could be amended to provide for effective, proportionate and dissuasive penalties for breaching the duty of maintaining the confidentiality of the identity of reporting persons. Currently, Article 24 (I) of Decree 9.492/2018 establishes that public officials of the SisOuv units are subject to legal penalties, in case they fail to comply with the provisions on the protection of the identity of reporting persons, as well as elements that allow their identification. Unfortunately, Article 24 (I) does not go as far as to determine the type of liability established, thus resulting in vagueness. Thus, it is not clear whether the responsible public officials are subject to either administrative or criminal sanctions and how these sanctions would be enforced. To ensure the enforcement of confidentiality regulations regarding the protection of whistleblowers’ identity, Brazil could consider clarifying in the law the type of liability established by Article 24(I) of Decree 9.942/2018 and enforcing dissuasive and proportionate sanctions. As shown in Box 5.4 below, several other countries have already resolved this issue and may serve as a good example in this case. Overall, in considering these recommendations, Brazil should ensure that relevant reforms trickle down to the sub-national level, where there is currently a lack of information regarding the uniform application of confidentiality and anonymity protection measures.
In line with international standards, many OECD countries have established administrative and/or criminal liability for public officials who breach confidentiality rules in complaints management process. A few selected examples are presented below.
Australia
According to Section 20 of the Public Interest Disclosure Act 2013, a public official commits an offence, if they disclose information that is likely to enable the identification of a person who has made a disclosure under the Act, unless an exemption applies. Exceptions include where the use or disclosure of the information is for the purposes of the PID Act (for example, to perform a function or exercise a power under the Act) or where the information has already been lawfully disclosed. The penalty is imprisonment for 6 months or 30 penalty units, or both.
France
In France, Article 9 of the Sapin II Law establishes that the disclosing of confidential elements of the report, such as the identity of the reporting persons, the persons targeted by it and the information collected by all the recipients of the disclosure, is punishable by two years’ imprisonment and fine amounting to 30,000 EUR.
Ireland
The Protected Disclosures (Amendment) Act of 2022 prohibits, in Article 16, the disclosure of the identity of reporting persons or any information from which the identity of the reporting person may be directly or indirectly deduced. Respective public officials, including the Commissioner, are not allowed to disclose or use this information. In addition, reporting persons have a right of action in tort against persons who fail to comply with this prohibition.
Korea
Korea’s Public Interest Whistleblowing Protection Act establishes in Article 12 the duty to maintain confidentiality of whistleblowers. This can result in the disciplinary liability of the person who breached this duty upon relevant request from the Anti-Corruption and Civil Rights Commission. In addition, Article 30 of the Act establishes the criminal liability for the disclosure of the reporting person’s personal information.
Mexico
Article 64 (III) of Mexico’s General Law on Administrative Responsibilities (Ley General de Responsabilidades Administrativas) specifically foresees the administrative liability of public officials responsible for receiving and investigating complaints, in case they disclose the identity of a whistleblower whose identity is protected under confidentiality provisions of the Law.
Peru
In Peru, Legal Decree 1.327/2017 provides in Article 6 for the disciplinary liability of public officials in case of any negligent breach of confidentiality.
Source: OECD research based on legal texts listed in the box.
Brazil could strengthen protections against retaliation for all who report on reasonable grounds, regardless of the outcome of the qualification process, and shifting the burden of proof to employers to demonstrate that any actions taken against the reporting person are unrelated to the disclosure
Whistleblowing may place reporting persons in a position of significant personal and professional risk, as it may expose them to possible retaliation actions in the work environment. Retaliation may take various forms, such as job loss, harassment, restrictions on conditions and access in the workplace or the reduction of responsibilities or even threats to life and of bodily harm. Weaknesses or gaps in the protections provided against these forms of retaliation could diminish the impact of effective reporting channels. Employees will not come forward about observed misconduct if they are uncertain about the protective measures available to them and their scope. Therefore, the whistleblower protection framework should define retaliation and provide a non-exhaustive list of retaliation cases (UNODC, 2021[20]).
In Brazil, Article 4(A) of Law 13.608/2018 protects persons who report in good faith from retaliatory actions and exempts them from civil and criminal liability in relation to the report (e.g. liability for defamation), except for cases in which the reporting person has knowingly presented false information or evidence. The protection measures are further specified in Article 4(C) of the Law 13.608/2018, where retaliation is defined but not limited to arbitrary dismissals, unjustified alteration of functions or attributions, imposition of sanctions, loss of remuneration or material losses of any kind, direct or indirect withdrawal of benefits, as well as refusal to provide professional references. In addition, the Law establishes the disciplinary liability of responsible public officials for the practice of retaliatory actions or omissions against reporting persons. Public officials in violation of this provision are subject to a sanction of dismissal “for the benefit of the public service”.
To enforce these protection measures, Brazil has appointed the CGU as the dedicated external channel for the reception and investigation of complaints related to retaliations against reporting persons. In this capacity, the CGU may initiate the process for administrative accountability, reach decisions on the imposition of administrative disciplinary sanctions, suspend administrative acts implemented in retaliation of whistleblowing activities, as well as issue any administrative acts necessary for the protection of whistleblowers. While the CGU is exclusively responsible for receiving and investigating these types of complaints in accordance with Article 35A of the CGU Ordinance 581/2021, relevant reports may also be submitted to SisOuv units, which are required to forward them immediately to CGU for further action.
Brazil’s recent efforts in establishing measures for the protection of whistleblowers from possible reprisals are an encouraging first step. Building on this, Brazil could consider providing more comprehensive protection to whistleblowers by ensuring that all persons who report on reasonable ground are covered by the scope of protective regulations (OECD, 2021[21]). Currently, according to Article 6C of Decree 10.153/2019, the protection measures against retaliation established in Articles 4(A) and 4(C) of Law 13.608/2018 are enacted only after the complaint is “qualified” by the relevant Ombudsman Unit. A “qualification” is the prior analysis through which the Ombudsman unit verifies whether the complaint fulfils certain minimum requirements relating to the authorship, credibility and relevance to the investigation of the complaint, and if it should be forwarded to another unit (Article 3 IV of Decree 10.153/2019) (see also OECD (2023[22])).
In light of this requirement, reports submitted on reasonable ground but not followed up for any reason may be excluded from the applicable protection measures. A scenario like this may occur for various reasons, for example, either because reporting persons become fearful further down the process or because they are asked for further supporting evidence, which they may not be able to provide. In any case, the risk of exposure to retaliations remains. Therefore, reporting persons should qualify for protection regardless of the outcome of the “qualification” process. Some criteria to facilitate the “good faith” assessment would be to examine whether there are reasonable grounds to believe that the information on breaches reported was true at the time of reporting. Additionally, Brazil could consider expanding protections against retaliation to persons who report or publicly disclose information on breaches anonymously and are subsequently identified and suffer retaliation (Transparency International, 2020[17]). A similar approach is followed in Article 6.3 of the EU Directive 2019/1937 on the Protection of Persons (EU Whistleblower Protection Directive) who report breaches of Union Law.
Another element to consider is that a retaliation case starts with an acute power imbalance between the employer and the employee in terms of time, resources and access to evidence. This is even more the case in the public sector, where the whistleblower is placed against the apparatus of an entire State. Consequently, whistleblower retaliation is often difficult to prove. Evidence from a study from 2021 shows that most whistleblowers lose their retaliation claims (Box 5.5).
In the United Kingdom, over a one-year period, whistleblowers won only 13.8 per cent of cases in England, Scotland and Wales (31 out of 224). South Africa had a 21.2 per cent success rate out of 33 cases (case decisions ranged from 2003–2019, a 17-year period). In Japan, whistleblowers won 4.5 per cent of claims (one out of 22).
To some degree, this data may not accurate present the value of the whistleblower laws that empower antiretaliation litigation because claims often lead to settlement agreements. This can be especially true for those who file complaints seeking informal investigation at remedial agencies.
In contrast to the low success rates in countries with higher volumes of reported cases, some countries with a lower number of reprisal claims have seen them succeed more often. In two countries, whistleblowers prevailed 100 per cent of the time: Norway with one case and Romania with six. Serbia had an 80 per cent success rate out of 15 final case decisions on the merits (case decisions ranged from 2017–2019; a three-year period). Nevertheless, the significance of these figures is limited by the small sample sizes.
Note: Regarding the cited data on Japan, although there were 30 case decisions, the figure excludes cases where the judge either ruled against or did not issue a final decision for a complaint filed under the Whistleblower Protection Act.
Source: Government Accountability Project (2021[23]), Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation, https://whistleblower.org/wp-content/uploads/2021/03/Are-Whistleblowing-laws-working-REPORT_02March21.pdf.
To address this imbalance, Brazil could consider reversing the burden of proof, so that employers are required to prove that any penalty imposed on a whistleblower is not related to an actual or potential disclosure. The EU Whistleblower Protection Directive, in Article 21 (5), provides that after a presumption of retaliation, the employer can prevail by ‘proving that this measure was based on duly justified grounds’ (Government Accountability Project, 2021[23]). This approach has also been taken in Latin America. In 2024, Costa Rica adopted Law 10.437 on the Protection of Whistleblowers and Witnesses of Acts of Corruption from Labour Retaliations (Ley de protección de las personas denunciantes y testigos de actos de corrupción contra represalias laborales), which in Article 11 establishes that in legal proceedings before labour courts the burden of proof falls on the employer (Legislative Assembly of Costa Rica, 2024[24]). In this regard, the employer is required to demonstrate that the measure or conduct identified as labour retaliation or discrimination were in fact objective, reasonable and proportional.
Brazil should clarify its normative framework to ensure that whistleblowers from the private sector are protected and should consider establishing requirements for the creation of reporting channels in private entities
Brazil currently lacks a framework for whistleblower protection in the private sector. Some references may be found scattered in legislation. For example, Law 12.846/2013 (Anti-Corruption Law), recommends that the existence of mechanisms to encourage the reporting of irregularities is taken into account when applying sanctions to companies that have committed acts against the public administration. The issue was already highlighted by the OECD Working Group on Bribery in 2017 and OAS in 2018 (OECD, 2017[25]; OAS, 2018[15]). More recently, the OECD Working Group on Bribery noted in its Phase 4 Evaluation Report that Brazil’s current whistleblower protection framework, at best, has only limited relevance for private-sector whistleblowers who report corruption-related offenses such as foreign bribery, because Law 8.112/1990 only protects public officials, while Law 13.608/2018 does not clearly apply to violations that do not concern the Brazilian public administration. Furthermore, the legislation does not set requirements for the establishment of reporting channels within private sector entities (OECD, 2023[22]).
Additionally, Law 6.112/2018 establishes the obligation to implement an integrity programme in institutions that have contract arrangements with the Federal District’s public administration. Integrity Programmes may include procedures for preventing and detecting irregularities committed against the public administration, including the establishment of reporting mechanisms. In 2021, Brazil also adopted Law 14.133/2021 which establishes rules for bidding and contracts in the Brazilian Public Administration and criteria for the evaluation of the Integrity Programmes. Law 14.133/2021 does not address reporting channels but Brazil is in the process of adopting a sub-sequent decree that will include standards for the implementation of integrity programmes, including requirements on reporting channels.
Based on the information currently available, the establishment of reporting channels in the private sector is not mandatory. Despite this legislative gap, the CGU undertakes activities to engage with the private sector. For example, it developed a booklet titled “Integrity Programme Guidelines for Private Companies”, including guidelines for companies to establish the reporting channels indicated above, so that employees will regularly report irregularities (CGU, 2015[26]). Further guidance is provided in the CGU Practical Manual for Evaluating Integrity Programmes in PAR which aims to support public officials evaluating integrity programmes (CGU, 2018[27]). In fact, the existence of reporting channels is one of the elements evaluated under the CGU Practical Manual, which further recommends the creation of different channels of receiving complaints (e.g. boxes, telephone or the internet) and stresses the importance of making those channels accessible to all employees. In addition, the CGU recently launched the “Brazil Pact for Business Integrity”, an initiative that encourages companies to voluntarily commit to business integrity and implement integrity programmes after conducting a self-assessment covering also the existence of reporting channels (CGU, 2024[28]).
The need to establish mechanisms to enable the reporting of corrupt acts and to provide protection for those who report in the private sector is highlighted in various international legal instruments, including the OECD Anti-Bribery Recommendation (OECD, 2021[21]) and the United Nations Convention Against Corruption (UNCAC). It was also highlighted by a legislative proposal from Transparency International Brasil on measures to fight corruption, which included the obligation of creating reporting mechanisms in private entities, as well as operational guidelines (Transparency International, 2018[29]).
Following up on these recommendations, Brazil should clarify its normative framework to ensure that whistleblowers from the private sector are protected. Furthermore, Brazil could consider establishing a requirement for private entities to create internal reporting mechanisms. As a first step, the requirement could be applied to private entities with at least 50 or more employees to avoid overburdening smaller companies, which may not be able to comply with such a requirement. The EU Whistleblowing Directive follows a similar approach in this case. Nevertheless, other Latin American countries like Costa Rica have opted for a more comprehensive approach establishing a broad obligation for all private sector entities to establish internal reporting channels in accordance with Article 18 of Law 10.437 of 29 January 2024 (Legislative Assembly of Costa Rica, 2024[24]). In addition, the obligation could encompass the following-up on internal reports received (i.e. to assess the accuracy of the allegations and, where relevant, to assess the breach reported).
Finally, Brazil could take into consideration Article 4 of the Transparency International Proposal to develop minimum standards for internal reporting mechanisms (Transparency International, 2018[29]), for example:
Implementing guidelines for receiving, processing, investigating and responding to suspected irregularities.
Maintaining safe and easily accessible mechanisms such as hotlines, online portals and ombudsmen units to receive reports of irregularities from employees and other interested parties.
Allowing anonymous reporting.
Ensuring the confidentiality of reports and the protection of the identity of reporting persons.
Communicating to the internal and external public, by means of e-mails, training sessions, publications in visible places in the entity’s offices and website, information about the existence of the mechanism for receiving reports and instructions for its use.
Ensuring that the reports received will be processed within a reasonable period of time.
As explained above, some of these elements are already taken into account under existing CGU guiding materials and initiatives (i.e. the CGU Practical Manual for Evaluating Integrity Programmes in PAR and the Pacto Brasil Self-Assessment). These guidelines are available and disseminated by the CGU but also applied when assessing integrity programmes in Legal Entity Accountability Processes and Leniency Agreements, as well as in participation and adherence with the Pacto Brasil initiative. Nevertheless, the establishment of reporting channels within private entities remains voluntary and therefore, Brazil could consider establishing an obligation for this in line with the analysis and recommendations presented above.
As mentioned above, disciplinary enforcement plays an important role in the public integrity system. Recognising this role, the OECD Recommendation on Public Integrity stresses the need for fairness, objectivity and timeliness in the enforcement of public integrity standards, calling on countries to apply these key principles in all enforcement regimes, including the disciplinary and administrative ones. These three elements contribute to building or restoring public trust in both the standards and enforcement mechanisms, and should be applied during investigations, as well as at the level of court proceedings and imposition of sanctions (OECD, 2017[2]).
In Brazil, the disciplinary process is guided by the following principles:
the principle of due legal process (Article 143 of Law 8.112/1990)
the principles of ample defence and adversarial proceedings (Articles 143 and 156 of Law 8.112/1990)
the principle of moderate informalism, according to which the acts of the administrative process do not depend on a specific form except when the law expressly requires it (Article 22 of Law 9.784/99)
the principle of actual or material truth
the principle of presumption of innocence or of non-blaming (Article 5 of the Federal Constitution)
the principle of justification (Article 50 of Law 9.784/99).
The Brazilian disciplinary system is mainly described in Law 8.112/1990, which provides the legal regime of civil servants (servidores públicos) of the Union, autarchies and federal public foundations. Article 121 of the Law establishes the civil, criminal and administrative liability of civil servants. Each of these types of liabilities are independent from each other and may run in parallel. However, there are some gaps in the law, which are addressed through other applicable legislation, as demonstrated in Box 5.6 below.
The main elements of the disciplinary process are outlined in Law 8.112/90, which describes the disciplinary regime in Chapter IV (Article 116 to 142) and the disciplinary administrative process in Chapter V (articles 143 to 182). It should be noted that Law 8.027/90, preceding Law 8.112/90, also establishes a series of administrative and disciplinary offences and sanctions in Articles 3 to 10. The two laws are aligned in their content regarding administrative and disciplinary offences and sanctions, but Law 8.112/90 provides a much more elaborate disciplinary system outlining the relevant procedures in detail.
The CGU, in its Disciplinary Administrative Process Manual, states that the law presents some gaps concerning the administrative disciplinary process, which are complemented through the following legislation:
Law 9.784/1999 (Administrative Procedure Law), which regulates the administrative process within the Federal Public Administration
Law 8.429/1992 (Administrative Improbity Law), as amended by Law 14.230/2021, which determines the acts of improbity of public agents (agentes públicos), possible sanctions and adds specific elements to the administrative disciplinary process conceptualizing the acts of administrative improbity
Law 13.105/2015 (Code of Civil Procedure), which establishes rules with supplementary and subsidiary application to administrative proceedings
Law 12.813/2013, which provides regulations for the management of conflict of interest relating to the exercise of public functions or employment in the federal executive branch and incompatibilities
Decree-Law 4.657/1942 (Law of Introduction to the Norms of Brazilian Law), which establishes rules on invalidation, interpretation, and sanctions of administrative law in articles. 20 to 30, which were included by Law 13.655/2018
Decree 5.480/2005, which regulates the Correction System of the Federal Executive Branch (SISCOR)
Decree 7.203/2010, which prohibits nepotism within the scope of the federal public administration
Decree 10.571/2020, which disciplines the asset investigation, a procedural instrument that investigates any incompatibility between the civil servants’ assets and their earned income.
Source: Information from CGU (2022[30]), Disciplinary Administrative Process Manual, https://repositorio.cgu.gov.br/bitstream/1/68219/10/Manual_PAD%20_2022%20%281%29.pdf.
The disciplinary system in the Federal Executive Branch of Brazil is comprehensive and effective
The complementary function of these legislative texts to the disciplinary framework laid out in Law 8.112/1990 results in a broad interpretation of the term “civil servant” (servidor público), thus expanding the scope of application of disciplinary processes. Indeed, Law 8.112 only applies to the legal regime of civil servants of the Union and the autarchies, including those under special regime and of the federal public foundations. In this sense, the public servant must be holder of public office with an assigned position within the organisational structure of a public entity. Nevertheless, the Law of Administrative Improbity (Law 8.429/1992), which is also applicable as explained above, is more comprehensive and includes in its scope of application civil servants, political agents and anyone who exercises any form of public function, regardless of whether the position is paid, elected, appointed, assigned or contracted. However, disciplinary procedures of civil servants as laid out in Law 8.112/1990, are not applicable to employees of state-owned enterprises, who are subject to internal disciplinary rules and procedures (CGU, 2022[30]). The applicable disciplinary process may vary depending on the type of the public official and the type of the administrative offence, as illustrated in Table 5.1.
In Brazil, the backbone of disciplinary proceedings is the centralised disciplinary system of the federal executive branch (Sistemas Correcionais, SISCOR). The SISCOR is composed of the General Inspectorate for Administrative Discipline (Corregedoria-Geral da União, CRG) as its central body and the correction units of the organs and entities that are responsible for correction activities. The SISCOR is endowed with the legal power to monitor and correct any ongoing disciplinary procedure and to apply sanctions through its 150 employees across the central department, 20 sectoral units and 47 sectional units located within federal units (corregedorias seccionais).
Within public entities, the correction units (corregedorias) are responsible for the work that involves the accountability of public agents or legal entities. As shown in Table 5.1, the correction units are considered the “initiating authorities” of the administrative disciplinary process. As sectoral units within the SISCOR, they are also responsible for proposing measures to standardise and improve operational procedures relating to correctional activities, initiating disciplinary proceedings, as well as keeping record of data and information relating to the outcome of disciplinary cases.
Externally, the effective implementation of codes of conduct, the adoption of mechanisms that aim to detect and remedy irregularities and the investigation thereof, fall under the competence of the CGU through the General Inspectorate for Administrative Discipline (CRG). In principle, CRG is responsible for overseeing the implementation of SISCOR in accordance with Article 18 item I of Decree 11.330/2023 and Article 2 item I of Decree 5.480/2005. In this sense, the CGU retains a concurrent competence with the correction units throughout the disciplinary process as reflected also in the most recent amendments brought by Decree 11.330/2023. In addition, according to Article 51 of Law 13.844/2019, the CGU is responsible for initiating investigations regarding the complaints it receives. As part of its oversight role, the CGU provides normative guidance to supervised bodies and entities, thus ensuring the quality of the disciplinary process across supervised units. This is further achieved through the standardisation, regulation and improvement of disciplinary procedures. To this end, the CGU issues statements and instructions, manages and exercises technical control over the actions performed by the SISCOR units, evaluates the work and proposes measures to address the misconduct of federal public officials.
In terms of the disciplinary process, first, a preliminary investigation by the correction units takes place at the organisational level to determine whether there is enough evidence to launch an official investigation in the form of accusatory proceedings. In case of sufficient evidence, the administrative disciplinary proceedings are initiated in compliance with the rights of the defendant and the principles of adversarial proceedings. Administrative disciplinary proceedings may result in the imposition of disciplinary sanctions or in the execution of a “Conduct Adjustment Agreement” (Termo de Ajustamento de Conduta, TAC) in case of lesser disciplinary offences. The competence to impose disciplinary sanctions is established in the internal regulations of the bodies, while more severe sanctions are imposed directly by the President of the Republic who can delegate this power to the Ministers of State under the requirements of Decree 11.123/2022 (CGU, 2022[30]).
To support the work of correction units, ensure legal certainty and avert possible risks of discretion in the independence of the decision-making process, the CGU has developed automated tools for most disciplinary processes. First, the e-PAD system organizes information and generates the documents necessary for conducting disciplinary proceedings. Its use is mandatory for correctional units of the federal executive branch and it also available for use by state and municipal agencies. Second, CGU has developed the Administrative Penalty and TAC Viability calculators which determine the imposition of the appropriate penalty or the implementation of a TAC based on the evaluation of the criteria required by article 128 of Law 8.112/1990. Finally, the Accountability Matrix is used to systematise information during the admissibility/investigative procedure. The matrix is formed by one or more facts, where each fact can have one or more elements and specific behaviours associated with it. Other areas are also part of the accountability matrix, such as evidence related to each fact, applicable statutes of limitations and recommended actions. This methodology increases the efficiency and effectiveness of disciplinary proceedings.
Considering the above, Brazil has a comprehensive disciplinary system, which seems to be working well, at least within the federal executive branch. The centralisation of oversight under the SISCOR, the digitalisation of the disciplinary processes, the variety of investigative tools and the many reforms of recent years have significantly improved the effectiveness of the disciplinary system and ensured consistency in the application of sanctions, as shown in Figure 5.3. Nevertheless, the Government of Brazil could consider strengthening specific areas to further optimise its system.
Source: Developed by OECD based on CGU (2022[30]), Disciplinary Administrative Process Manual, https://repositorio.cgu.gov.br/bitstream/1/68219/10/Manual_PAD%20_2022%20%281%29.pdf.
Source: CGU (n.d.[31]), Sanções, https://transparencia.gov.br/sancoes.
To improve understanding of the levels of trust in the fairness and effectiveness of the disciplinary system, Brazil could consider measuring through surveys the perception of impunity and its causes
A disciplinary enforcement framework cannot be effective if public officials perceive high degrees of unethical behaviour. Therefore, it is critical to understand the incidence of corrupt and unethical practices and how they are perceived in the public sector. In Brazil, interviews with public officials conducted for this Integrity Review indicated that there is a perception of overall impunity in the public sector, despite the many strengths of the disciplinary system.
To gather information on the perceptions of ethics and corruption in the public sector, the Government of Brazil in co-operation with the World Bank organised a survey among civil servants to generate empirical knowledge about the different types of unethical behaviour, their incidence levels and the possible motivations behind these acts. The survey includes sections on experiences with corruption, reporting mechanisms, rules and regulations, management of human resources and the impact of the Covid-19 Pandemic in the public administration (World Bank, 2021[6]).
However, it does not examine the perceptions on impunity or fairness of enforcement mechanisms. Therefore, Brazil could consider including to a regular staff survey questions on the effectiveness of disciplinary enforcement institutions and disciplinary sanctions imposed to address this shortcoming. For example, the UK Civil Service Survey asks respondents if they are confident that, if they raise a concern under the Civil Service Code in their organisation, it would be investigated properly. Similarly, the Integrity Assessment of the Anti-Corruption and Civil Service Commission in Korea includes the Work Integrity Index, which is a set of indicators aiming to gauge civil servants’ perceptions of integrity in public organisations. The survey asks, among other things, if civil servants consider that the institution is doing well in detecting and punishing corrupt behaviours (ACRC, 2021[32]). Brazil could use the examples from the UK and Korea as an inspiration to expand the scope of its surveys on ethics and corruption in the Federal Public Service to include items to measure perceptions of impunity, its causes and the levels of trust in the fairness and effectiveness of the disciplinary system.
Brazil could consider strengthening disciplinary enforcement at the sub-national level through the alignment of municipal legislation with the disciplinary regulations of the federal executive government, the development of manuals and automated tools for disciplinary processes at the sub-national level and the assignment of disciplinary functions to dedicated units or staff within municipalities
Disciplinary enforcement at the Brazilian sub-national level is determined by the laws applying in each Federal State, which are complemented by municipal laws. There is no uniform legislative framework. The lack of a common disciplinary framework combined with the varying size and capacity of local government entities results in deficiencies in the enforcement of disciplinary rules at the local level.
Recognising these challenges, the CGU established in 2019 the Programme for Strengthening Internal Affairs (Programa de Fortalecimento de Corregedorias) – PROCOR to support the bodies and entities of the Union, States, the Federal District and Municipalities in the execution of correctional activities. While any municipal or state unit that performs correctional activities can be part of the PROCOR, participation is optional. The PROCOR operates in combination with the Internal Affairs Network with the purpose of integrating information regarding correctional activities.
Despite recent efforts, the lack of harmonisation in the application of disciplinary rules at the sub-national level continues to create inefficiencies in disciplinary enforcement. More specifically, disciplinary legislation at the sub-national level is considered vague and lacks parameters for differentiating the sanctions, depending on the gravity of the offence and according to the principle of proportionality. In addition, there is a dearth of guidance on administrative disciplinary and investigative processes, which are not described in detail in municipal legislation. Indeed, municipal officers interviewed for a recent study reported that they face difficulties in determining which process to initiate, the steps required for each procedure, as well as the appropriate imposition of sanctions (Scheffer, 2021[33]). A key challenge is also that some entities have not established dedicated disciplinary units or at least assigned disciplinary functions to dedicated employees trained in disciplinary matters. Thus, disciplinary duties are exercised on top of other tasks.
To address these shortcomings, Brazil could examine to what extent it is possible to review municipal legislation to align it with disciplinary rules at the federal executive level. This would ensure the harmonisation of processes across levels of government and across municipalities, regardless of their size or administrative capacity. A similar approach was recommended by OECD in the State of Nuevo León in Mexico, where challenges arose in implementing Mexico’s National Anti-corruption System at the local level. In this context, the OECD recommended that Nuevo León could consider aligning its legal framework with Mexico’s General Law of Administrative Responsibilities with regards to the differentiation between serious and non-serious offences (OECD, 2018[34]).
As a next step, Brazil could consider expanding the PROCOR system in all municipalities. Indeed, despite the promising possibilities it offers for strengthening disciplinary rules at the sub-national level, PROCOR currently counts only 385 integrated municipalities out of a total of 5.570 municipalities in Brazil (PROCOR, 2024[35]). A requirement to participate to PROCOR would support municipalities in leveraging its use to ensure consistent disciplinary enforcement. To that end, PROCOR can be used as a platform to identify common challenges and address these through the exchange of good practices, especially among municipalities of similar size.
The PROCOR, under the leadership of CGU, could also provide the forum for the development of a manual to assist municipalities in the implementation of disciplinary rules. The manual could include step-by-step guides for each applicable disciplinary process, specific descriptions of irregularities and appropriate sanctions depending on the gravity of the offence, as well as theoretical and practical explanations to relevant legal concepts. Additionally, it would be useful to promote the use of CGU’s automated tools for the calculation of sanctions and the Accountability Matrix, if the alignment of the legislative framework is possible. As an alternative option, the CGU, in co-operation with municipalities, could consider developing similar tools for the local government taking into consideration the applicable legislation.
Finally, to ensure implementation of any envisaged reform, it is essential that municipalities are equipped with appropriate resources and capacities to enforce disciplinary rules. Therefore, Brazil could assign the exercise of disciplinary duties to dedicated units or permanent officials within municipalities, who should be adequately trained. For example, the Joint Negotiating Committee for Chief Executives of local authorities in England (Wales and Northern Ireland) requires all local councils to establish an investigating and disciplinary committee, an appeals committee and an independent panel for the implementation of disciplinary proceedings. In its efforts to support local councils in the enforcement of disciplinary rules, the Joint Negotiating Committee has also developed a model disciplinary procedure and guidance, which provides definitions and step-by-step descriptions, establishes timelines, includes guidance for the collection of evidence and the treatment of witnesses, as well as the protection of the rights of the accused (JNC for Local Authority Chief Executives, 2016[36]).
The OECD Recommendation on Public Integrity calls on adherents to apply objectivity in the enforcement of public integrity standards (OECD, 2017[2]). Objectivity is closely linked to independence, an essential characteristic of judicial systems that guarantees every person the right to have their case decided in a fair trial, based on legal grounds and evidence, and free from improper influence. It includes both external independence from the other state powers, and internal independence within the judiciary (CoE, 2010[37]). The levels of perceived judicial independence are a key element in examining the adequacy of enforcement mechanisms in promoting trust in the public integrity system.
Internationally, judicial independence and impartiality are often assumed. However, in recent years, there is a rising number of breaches of fundamental values concerning the principle of rule of law and in particular judicial independence (EJTN, 2021[38]). In Brazil, the judiciary is considered largely independent from government intervention with ample authority granted to judges to evaluate the constitutionality of the government’s acts. However, the efficiency of the judicial system is partially restricted by limited capacity and perceived corruption (BTI, 2022[39]). This is reflected in the indicator for perceived Judicial Independence, as measured by the Index of Public Integrity. The data for 2021 and 2023 show that Brazil scores barely above the average of Latin American countries with available data and below the OECD average, as shown in Figure 5.4. As a result of increased levels of perceived corruption and low levels of perceived independence in the judicial system, 61% of respondents of the 2023 Latinobarómetro have little to no confidence in the judiciary (Corporación Latinobarómetro, 2023[40]).
Indeed, a recent OECD study found that citizens in Brazil are quite sceptical about the independence of courts from political power (Figure 5.5). While on average in OECD countries, 42.2% feel that a court would make a decision free from political influence if the decision could negatively influence the government’s image, in Brazil only 22.2% of respondents felt the same way (OECD, 2023[41]).
As far as formal guarantees of independence are concerned, the separation of powers is established in Article 2 of the Constitution. In addition, Article 5, XXXV, assigns a broad mandate for the Judiciary to review all actions of the Executive and the Legislative. The Prosecution Service is an independent institution, with functional and administrative autonomy to perform its constitutional duties (Article 127 of the Constitution). Additionally, the National Council of Justice has undertaken some recent initiatives to strengthen independence, in particular in relation to the selection of judges. In 2023, CNJ Resolution No. 75/2009 was amended to establish the National Judiciary Exam and to guarantee a suitable selection process with a minimum of uniformity, as well as a way to democratise access to the judiciary career, making it more diverse and representative. In the same spirit, CNJ has established scholarships for black and indigenous people, with and without disabilities, who wish to enter the judiciary, to enable more equal conditions in public exams for entry into the judiciary (CNJ, 2024[42]).
Note: The Judicial Independence component of the Index of Public Integrity is based on the “judicial independence” indicator from the Executive Opinion Survey of the World Economic Forum “Global Competitiveness Dataset” which asks the question “To what extent is the judiciary in your country independent from influences of members of government, citizens, or firms? [1 = heavily influenced; 7 = entirely independent]”.
Source: Mungiu-Pippidi, A. et al. (2023[43]), Index of Public Integrity – Judicial Independence, https://corruptionrisk.org/ipi-ranking/.
Share of respondents who indicate that courts are free from political pressure in Brazil, Colombia and OECD average, 2021-22
Note: Figure presents the distributions of responses to the question ‘’If a court is about to make a decision that could negatively impact on the government’s image, how likely or unlikely do you think it is that the court would make the decision free from political influence?’’. The “Likely acts free from political influence” proportion is the aggregation of responses from 6-10 on the scale; “neutral” is equal to a response of 5; “Likely does not act free from political influence” is the aggregation of responses from 0-4; and “Don't know” was a separate answer choice. OECD (22) refers to the unweighted average across 22 OECD countries.
Source: OECD (n.d.[44]), Trust in Government, OECD Trust Survey, http://oe.cd/trust.
Despite these constitutional guarantees and initiatives, the level of actual independence has been debated in recent years. While legal safeguards can make judges and prosecutors objectively independent, it cannot be taken for granted that countries with robust safeguards for formal judicial and prosecutorial independence will achieve high levels of perceived independence (Van Dijk and Vos, 2018[45]). The judicial system can successfully fulfil its role in guaranteeing democracy and the rule of law only when people are confident that justice is served impartially. In this context, there are several actions that Brazil could consider to strengthen existing independence safeguards and improve the levels of perceived independence among people and to respond to their needs (OECD, 2023[46]).
Stronger regulations regarding pre- and post- judicial employment could help avert risks of conflict of interest and undue political interference in the judicial system
The Brazilian Constitution establishes a set of limitations for most of the Superior Courts regarding the selection and appointment of high-level officials. In practice, however, the executive power has wide discretionary powers in nominating candidates. At the same time, the current legal framework lacks measures to prevent possible risks of conflict of interest of candidates, who previously served as ministers or in other high-ranking positions in the federal executive government. As a positive development, the Superior Court of Justice adopted recently a Code of Conduct (Código de Conduta do Superior Tribunal de Justiça), which includes a section on conflict of interest and abuse of functions (STJ, 2023[47]). In particular, the Code includes an obligation to avoid possible conflict of interest and provides concrete examples of prohibited behaviours. However, as mentioned in Chapter 2, despite recent developments and several codes of ethics and conduct for public servants of the judiciary branch and judges, none of these codes provide pre- and post- public employment restrictions. The unregulated change of employment positions between politically exposed and higher judiciary positions creates risks of unlawful lobbying and undue political interference in judicial decision-making processes (for a more detailed analysis on undue influence in public decision-making processes, see also Chapter 6). Indeed, the appointment of the leadership of Superior Courts by the President without any pre-employment restrictions could be used as one of the means to promote the government’s political agenda through jurisprudence.
To avert these risks, Brazil could consider establishing cooling-off periods before a person can assume or return to a position as a judge or prosecutor, if they have previously served as politicians, ministers, government officials, cabinet members or other positions in political office. For example, in France, to return to judgeship, a judge who has previously taken up a position as politician, minister, government official or cabinet member is required to undergo a formal recruitment process to return to judgeship. Once the recruitment process is completed, the appointment is formally approved by the Judicial Council. In addition, before returning to a position of a judge, candidates must wait a cooling-off period of three to five years, depending on the type of public office they previously held. Similarly, there is cooling-off period of five years for Austrian prosecutors returning to a position of prosecutor in a management position (i.e. head of a public prosecutor’s office, of a senior public prosecutor’s office, of the General Procurator’s office).
An alternative option to consider instead or in combination with the regulations regarding cooling-off periods would be a requirement for judges and prosecutors to obtain the authorisation of the National Council of Justice (Conselho Nacional de Justiça, CNJ) or the National Council of the Public Prosecutor’s Office (Conselho Nacional do Ministério Público, CNMP) respectively. This approach is followed in Portugal and in Italy (EC, 2022[48]). Indeed, the CNMP is well placed to undertake this role and it has already implemented initiatives to promote integrity, ethics and transparency in the Brazilian public administration. In 2025, the CNMP adopted Resolution 305 which establishes guidelines to strengthen the preventive action of the Public Prosecutor’s Office (Ministério Público) against misconduct and corruption across the public sector. In principle, the Resolution assigns the Public Prosecutor’s Office to oversee the implementation of Integrity Programmes within public entities, which include measures on preventing and managing conflict of interest.
To strengthen the independence of judicial and prosecutorial authorities, Brazil could improve the selection and appointment processes for higher positions, for example, through the involvement of independent bodies with the participation of members of the judiciary and the prosecution service, the establishment of objective criteria and the engagement of non-political experts
The executive’s power to appoint the members of the higher courts without the necessary safeguards can affect judicial decisions in two ways: by selecting judges whose preferences are aligned with those of the government and by influencing judicial decisions, contingent upon the political context (i.e. according to the incumbent party). According to the Constitution, the members of Brazilian highest courts, the Supreme Federal Court (Supremo Tribunal Federal, STF) and the Superior Court of Justice (Superior Tribunal de Justiça, STJ), are appointed by the President with the approval of the Senate (Articles 101, 104 of the Constitution).
Despite the separation of powers and the guarantees established in the Constitution, the wide discretionary power of the executive in the selection and appointment processes of the highest national courts can undermine the independence of the judiciary. In 2022, Constitutional Amendment No. 122/2022 established some additional safeguards in the case of the STJ. The candidates are nominated by a list prepared by the Court itself, comprising of judges of the Federal Regional Courts, judges of the Courts of Justice, as well as lawyers and members of the Federal, State, Federal District and Territories Public Ministry (Ministério Público Federal, Estadual, Distrito Federal e Territórios). However, the final appointment decision lies with the President of the Republic and the approval of the Senate. A study analysing empirically the degree of political influence in the Supreme Federal Court (STF) and the Superior Court of Justice (STJ), finds statistically significant evidence indicating that the STF is indeed more subject to political influence than the STJ, where the president has less discretion over the appointment of judges, and that “there may be other ways through which the government influences the STF other than the appointment of its members” (Lopes and Azevedo, 2018[49]). In turn, however, the authors cannot find consistent and statistically significant evidence that the judges actively benefit the party of the president who has appointed them (Lopes and Azevedo, 2018[49]).
The Brazilian Prosecution Office (Ministério Público or Public Ministry) is divided into the Prosecution Office of the Union and each State’s Prosecution Offices (Article 128 of the Constitution). Its members have functional independence that guarantees freedom in their decrees and in the exercise of their functions. Prosecutors are not subordinate to their superiors, as the hierarchy that exists in relation to their superiors is merely administrative (OECD, 2014[50]). Their autonomy in decision-making is only limited by their duty to maintain the legal order. To ensure that prosecutors exercise their functions impartially and free from any influence, they enjoy life tenure and a range of other employment conditions. The Brazilian Constitution also establishes the financial and administrative autonomy of the Brazilian Prosecution Office as a safeguard for independence. Nevertheless, the same selection and appointment process applies also in this case. According to Article 128(1) of the Constitution, the head of the Prosecution Office of the Union is appointed by the President for two years subject to the approval of the Senate.
Since 2003, candidates have been nominated from a list of three prosecutors selected through internal elections, a procedure that mirrors the constitutional requirement for the heads of State Prosecutor’s Offices (Article 128 (3)) and the STJ (Article 104). Although the law does not require internal elections for the selection of candidates, this procedure provided an additional safeguard against the executive and legislative branches’ control over the appointment. Moreover, the selection of candidates by their peers inspires the trust and respect of the public as well as of the members of the judicial and prosecutorial system (CoE, 2014[51]). In recent years, this practice has not been followed, thus, raising concerns internationally (OECD, 2019[52]) and among civil society in Brazil (Transparency International, 2022[53]). Instead of internal elections, nominees for the position of the head of the Prosecution Office of the Union are selected by decision of the President, who also appoints the selected person with the approval of the Senate. In summary, the higher the degree of jurisdiction, the greater is the involvement of other powers in judicial selection (UNODC, 2020[54]). In 2023, the OECD Working Group on Bribery also recognised the risk of politicisation of the Prosecution Office of the Union which may hinder the investigation and prosecution of corruption and foreign bribery cases (OECD, 2023[22]). This risk occurs even in the selection and appointment procedure of the heads of State Prosecution Office. Despite the constitutional requirement of Article 128(3) for the Governor of each state to appoint a candidate from a list of three names formed through internal elections, stakeholders report that in practice Governors often do not adhere to this list.
In view of the politicisation risks of the prosecution service, an appointment process involving the executive branch and representation of the legislative branch can strengthen democratic legitimacy. However, the appointment of senior judges and prosecutors by the government can also give rise to a perception of a lack of autonomy from the executive branch of government, which can erode their credibility and undermine citizens’ trust in democratic institutions (OHCHR, 2011[55]). Therefore, it is important to provide transparency and legitimacy to the selection, appointment and removal processes.
To address these concerns, Brazil could create additional safeguards to ensure independence in the selection and appointment of the members of the STF and the Prosecutor General of the Republic. For example, the selection of candidates for the leadership of the STJ and the State Prosecutors’ Offices through internal elections could be used as a good practice also in the cases of the STF and the Prosecutor General of the Republic. The election process could be administered by the National Judicial Council (CNJ) and the National Council of the Public Prosecutor’s Office (CNMP) respectively with a requirement that the recommendation of the Councils on selected candidates is binding for the appointing authority. Additionally, Brazil could consider establishing transparent, objective and pre-established appointment criteria to inspire the confidence of the public and the respect of the judiciary and the legal profession (Venice Commission, 2011[56]).
Such criteria, could include, for example, the following elements:
independence and impartiality
reputable conduct and record of integrity
outstanding knowledge of the law
excellent oral and written communication skills and analytical competency
commitment to the judiciary as a public institution
demonstrated commitment to the protection of human rights, democratic values and transparency
ability to understand the social and legal consequences of one’s decisions
ability to strike a sound balance between a high level of productivity, the quality of judicial decisions and a careful consideration of cases (DPLF, 2014[57]).
The selection process could further benefit from the creation of a commission of appointment comprised of persons who would be respected by the public and trusted by the Government with the involvement on non-political experts (Venice Commission, 2011[56]). Box 5.7 presents an overview of guiding principles that Brazil could take into consideration when improving the selection of high-level judges and prosecutors.
The Due Process Law Foundation has elaborated a set of recommendations on the necessary elements in the selection process of high-level judges and in the candidates’ profiles. The recommendations are elaborated based on international comparative experiences and standards taking into consideration the regional context of the Americas.
The entities responsible for shortlisting candidates should be autonomous.
To avoid the politicisation of selection processes, the body responsible for the shortlisting of candidates should be an independent entity that is not subject to direct or indirect influence of other powerful sectors in the country. To this end, the responsible entity should be consisting of representatives from different sectors and national associations.
The appointment should be guided by clear and previously established criteria.
The criteria should identify the professional and personal characteristics that are considered essential. These qualifications should be sufficiently detailed, established and published in advance, so that all candidates clearly understand the requirements for a successful application.
The appointment process, as well as the responsibilities of all actors engaged in the process should be clearly established.
There should be a detailed plan for determining to what extent candidates comply with the established profile, in order to avoid arbitrary decisions. Moreover, this process should be guided by the principles of transparency and publicity at all stages.
The selection bodies should offer opportunities for different sectors of society to provide input on the candidates, which should be subjected to background checks.
The process should include a mechanism for third parties to submit any information about a candidate’s history that could be considered as a reason for disqualification. In this case, the accuracy of the information received should be checked by an autonomous body based on a previously established procedure.
Public hearings should be held with the candidates to assess their qualifications.
Well-planned public hearings can be effective tools to learn what candidates think about the law and the role of the judiciary in society. This type of analysis facilitates also the assessment of personal values.
Efforts should be made to ensure diversity in high level judicial positions.
It is important for a court´s optimal performance that its composition reflects the society’s diversity, both in terms of gender and minority groups. To this end, designations should be made under conditions of equality.
The entity in charge of the pre-selection process should justify its final decision.
A merit-based selection process should provide explanations regarding the nomination of candidates. To limit arbitrary decisions, the selection body should explain how evaluation guidelines were followed.
Source: DPLF (2014[57]), Guidelines for a Transparent and Merit-based System for the Appointment of High-level Judges, https://www.iranrights.org/attachments/library/doc_297.pdf.
Brazil could amend the Law on Abuse of Authority to establish clear criteria for the definition of generic terms to provide legal certainty and prevent risks of retaliation against judicial and prosecutorial authorities
In 2019, the new Law on Abuse of Authority (Law 13.869/2019, which replaced Law 4.898/1965) was introduced, with the goal of ensuring that public officials who abuse their powers are sanctioned. While the objective of the new law was to address the problem of systemic abuse of authority, there are concerns that the law can potentially deter investigators, prosecutors and judges from pursuing corruption cases involving powerful public and private-sector actors. The basis of these concerns is mainly the expedited legislative process for its adoption, as well as the broad and vague terms found in the text of the law. The OECD Working Group on Bribery has already stressed that the vagueness of the concepts presented in the law may discourage the investigation and prosecution of corruption crimes and eventually lead to impunity, as they create risks of retaliation against prosecutors and judges from powerful defendants (OECD, 2019[58]; 2023[22]).
The crimes described in the law are intentional and require a specific purpose of acting (malice). In addition to the intention, the person committing the crime must act “with the specific purpose of harming another person or benefiting him/herself or a third party, or even for mere whim or personal satisfaction” (Article 1(1) of Law 13.689/2019). In this provision, the law does not specify or define the term “harm”, thus giving rise to multiple interpretations. Article 1(2) of Law 13.869/2019 states that the different interpretation of the law or evaluation of the facts and evidence does not constitute abuse of authority. However, guidance from the National Council of Prosecutors General of the Public Prosecutors of the States and the Union (Conselho Nacional de Procuradores-Gerais dos Ministérios Públicos dos Estados e da União, CNPG) and the National Group of Co-ordinators of Criminal Support Centres (Grupo Nacional de Coordenadores de Centros de Apoio Criminal, GNCCRIM) suggest that such interpretation may be considered an abuse of authority, in case of malice (CNPG/GNCCRIM, 2020[59]).
With regards to specific crimes, Article 27 criminalises the launch of an investigative procedure without “indication”. The scope of the article covers both criminal and administrative investigations, thus including the disciplinary regime, as well as investigations related to broader types of misconduct. Once again, the law uses a notably broad term and fails to determine what would constitute an appropriate indication for the initiation of investigative proceedings. It is also not clear, whether Article 27 covers preliminary investigations. In this context, it is difficult to establish safe parameters for action, especially in the case of anonymous or incomplete complaints which could, nonetheless, provide useful information for the investigation of corruption and integrity violations. Similarly ambiguous terms are used in Article 30, which criminalises the initiation of criminal, civil or administrative proceedings without “just cause” or against persons who “are known to be innocent”. Moreover, Article 31 penalises the “unjustified” procrastination in investigations to the detriment of investigated or audited persons and the “unjustifiable” extension of investigations, in the absence of specific deadlines for the conclusion of the proceeding. While the objective of this provision is to promote timeliness of proceedings and protect the accused persons from unreasonable delays, in this case too, the law fails to provide clear criteria, thus leaving the interpretation of the law to the discretion of the public officials responsible for these proceedings. These shortcomings have also been identified by state prosecutors in relevant guidance intended to support the implementation of the law (PGE Mato Grosso do Sul, 2020[60]).
The criminalisation of behaviours, some of which fall within the normal duties of public officials, without concrete parameters may undermine the effective investigation and prosecution of corruption and integrity violations. The generic terms used in the text of Law 13.869 create legal uncertainty conducing to a fearful environment within which judges, prosecutors, auditors and disciplinary investigators are required to fulfil their duties. Therefore, Brazil could consider amending the law to establish clear and objective criteria that will provide legal certainty and support public officials in successfully fulfilling their duties without fear of retaliation.
The chapter analysis has presented the strengths and weaknesses of the enforcement system in Brazil and shown that additional efforts are required to improve its effectiveness.
Building on recent policy efforts, Brazil could consider the following recommendations to improve the quality of the national whistleblower protection framework:
Consolidating the legislation for receiving reports on corruption and for providing whistleblower protection to avoid fragmentation of measures across various laws.
Clarifying how existing internal and external reporting channels interact to strengthen actual awareness of these and willingness to report.
Strengthening co-ordination between existing reporting channels to avoid duplication of efforts and enhance the effectiveness of investigations.
Improving confidentiality, anonymity safeguards and anti-retaliation provisions to encourage public officials and citizens to speak up about potential misconduct in the public sector.
Strengthening protections against retaliation for all who report on reasonable grounds, regardless of the outcome of the qualification process and reversing the burden of proof to employers to provide evidence that measures taken against the reporting person are not related to the disclosure.
Providing protection for whistleblower from the private sector and consider establishing requirements for the creation of reporting channels in private entities.
In addition, the chapter proposes the following measures to optimise the disciplinary system:
Measuring through surveys the perception of impunity, its causes and the levels of trust in the fairness and effectiveness of the disciplinary system to improve the understanding of the levels of trust in the disciplinary system.
Strengthening disciplinary enforcement at the sub-national level through the alignment of municipal legislation with the disciplinary regulations of the federal executive government, the development of manuals and automated tools for disciplinary processes at the sub-national level and the assignment of disciplinary functions to dedicated units or staff within municipalities.
Finally, the chapter examines the independence safeguards in the Brazilian judiciary and prosecution service and recommends the following actions:
Adopting stronger regulations regarding pre- and post- judicial employment could help avert risks of conflict of interest and undue political interference in the judicial system.
Improving selection and appointment processes for higher positions through the involvement of independent bodies within the judiciary and the prosecution service, the establishment of objective criteria and the engagement of non-political experts.
Amending the Law on Abuse of Authority to establish clear criteria for the definition of generic terms to provide legal certainty and prevent risks of retaliation against judicial and prosecutorial authorities.
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