Experts discuss criminal frontiers in the fight against corruption
“Corruption is a word used by the Law to designate the spectrum of conduct that characterizes the misuse of public property”. With this definition, Davi Tangerino, professor of Criminal Law at FGV’s Sao Paulo Law School (Direito SP), opened the event “Legal meanings of corruption: what are we talking about?”, which initiated the series “Frontiers – discussions on frontier topics between sanctioning administrative law and criminal law”, coordinated by the professor himself and professor Vera Cáspari Monteiro, an expert in Administrative Law. The meeting took place on October 30.
For Arthur Badin, former President of the CADE, who talked specifically about antitrust law, one of the aspects of sanctioning administrative law, the frontier between criminal law and sanctioning administrative law has caused disruptions that have proven to be quite latent with Operation Car Wash.
“When people first see the antitrust law, they are impressed with the scope of conduct referred to as crime”, said Badin. “Any act against the economic order, regardless of the manifested form, the fault it could produce, even though its effects were not provided for in order to cause restrictions to the economic order, which is the limit set by the Constitution, can be characterized as an antitrust crime”, said the professor.
Tangerino questions whether criminal law is the best way to address corruption crimes, considering that the rules set forth to combat harm to the public administration present many contradictions and overlaps.
“The administrative law principles do not offer guidelines for the production of rules within the requirements of classic criminal law. With some effort, everything fits the concept of harm to the public administration”, he said.
On the other hand, Vera Monteiro talked about the “administrativization of criminal ideas” to exemplify the increased penal measures within administrative law, but in a sense distinct from criminal law. “While criminal law is concerned with punishment, administrative law seeks restoration through sanctions”, she said.
For the professor, the Anti-corruption Law only expanded the possibilities of sanctions and did not add anything new to the repression system. “We already had very serious sanctions prior to the act, including crimes set forth by the Administrative Dishonesty Law. The novelty brought by the anti-corruption law was the possibility to sign leniency agreements and the expansion of administrative sanctions issued by administrative agencies, as well as civil sanctions issued by judges.
The discussion also included lawyers Heloísa Estellita (Direito SP), Felipe de Paula and Fernando Neisser.