Leniency Agreement In Brazil
In order to benefit from leniency communication, cooperation between Brazil`s enforcement and the companies must, if necessary, enable the identification of the parties to the violation (Article 16, paragraph I) and provide information proving the illegal activities involved in the investigation (Article 16, paragraph II). The company must first make its interest in cooperating with police officers known, stop participating in the misconduct examined, acknowledge its involvement in the misconduct and cooperate fully with the investigation. The enforcement authorities set the conditions for implementation. Businesses must continue to pay full refunds for the damage caused (Article 16, paragraphs 1 to 4). According to Operation Car Wash Attorney General Deltan Dallagnol, the clemency agreement contributed to „the greatest reward in the history of the world.”  Odebrecht and Braskem pleaded guilty and would pay fines of $3.5 billion, or 12 billion reals, 80 percent of which would go to Brazil.  The guidelines are an important step in ensuring greater predictability and transparency in leniency negotiations and the outcome of leniency agreements under the Clean Company Act. The Brazilian Public Prosecutor`s Office (MPF) has issued new guidelines regarding the requirements for leniency agreements with Brazilian companies and foreign companies with their headquarters, branches or offices in Brazil in relation to corruption investigations. The guidelines were adopted on 24 August and were made public on 30 August 2017 and developed in response to MPF`s criticism of the terms and procedures of previous leniency agreements. The leniency communication was born in the United States in August 1993 through the corporate leniency program. It has proven to be very effective when one considers that legislation has been strengthened against investigative practices that have caused physical or psychological injury to those studied, that is, against torture, which has been practiced for many years as a means of gathering evidence to incriminate someone.
„This agreement allows us to achieve a return to sustainable growth,” Luciano Guidolin, Odebrecht`s chief, said in a statement. However, in the direct public administration of the Confederation, the decree of Brazil`s anti-corruption law imposes an obligation on the federal prosecutor`s office to take legal action in Brazil or abroad. Such as the perception of the administrative sanction applied in the PAR, the promotion of extraordinary publication, the monitoring of the sanctions referred to in points I to IV of the caput of art. 19 of Brazil`s anti-corruption law No. 12.846 of 2013, the full compensation of damages, in addition to possible judicial measures to instruct or guarantee judicial proceedings or the maintenance of the crown contract. No immunity for other violations. While a leniency agreement may resolve allegations of corruption, it may not reach other types of offences that may be involved and do not contain settlement mechanisms. The responsibility of the people in the company could continue to be engaged. There could be civil suits. This discourages companies from wanting to participate. „A company`s decision to enter into an agreement must take into account not only the lack of immunity for other violations, but also the fact that it must acknowledge its involvement in the fault by providing prosecutors with powder to charge individuals.” 2) If individuals also apply for a legal motion, leniency negotiations should be conducted in parallel or after the negotiation of individuals` arguments (note that a leniency agreement signed under the Clean Companies Act does not protect individuals from criminal liability under the Brazilian Penal Code) (guideline 1.