Today’s guest post is from Guilherme France, the Research and Advocacy Manager at Transparency International Brazil and a PhD candidate at the Institute for Social and Political Studies at the State University of Rio de Janeiro.

The OECD Working Group on Bribery (WGB) conducts periodic reviews (in successive “phases”) on how well signatories to the OECD Convention on Preventing Bribery of Foreign Public Officials. Recently, the WGB published its Phase 4 report on Brazil. The picture it paints is rather bleak, and should be a wake-up call for Brazilian citizens and, one hopes, the Brazilian government. While the WGB also acknowledged some improvements in Brazil’s anticorruption framework (such as better inter-institutional cooperation, an increase in funding for law enforcement agencies, and efforts to enact a stronger whistleblower protections), Brazil is underperforming with respect to enforcement, and backsliding with respect to institutional independence.

With respect to enforcement, the main message of the WGB Phase 4 report is that impunity for foreign bribery offenders remains rampant in Brazil. Although Brazil, consistent with its OECD Convention obligations, has criminalized foreign bribery, no natural person has ever received a final conviction in Brazil for a foreign bribery offense. Brazil’s first-ever criminal proceeding in a foreign bribery case began almost a decade ago and still has not come to a close—and eight of nine the defendants in that case were recently acquitted because of the statute of limitations. As for enforcement of foreign bribery laws against companies (or other artificial entities), Brazilian authorities have reached negotiated settlements with a grand total of three companies—but legal action and judicial decisions have put even those agreements in doubt.

Of even greater concern than its anemic enforcement track record, though, are the broader threats to the independence and capacity of the Brazil’s anticorruption enforcement bodies—a serious concern that has developed over the last several years, and that had attracted the WGB’s attention even before the formal initiation of the Phase 4 review process.

In 2019, as the Brazilian Congress debated a new abuse of authority law, the WGB warned that the broad definition of an “abuse of authority” offense, especially when applied to judges and prosecutors, could serve as a mechanism for corrupt individual to attack law enforcement officials, producing a chilling effect on anticorruption prosecutions. That same year, the Brazilian Supreme Court issued a controversial and legally questionable opinion halting all criminal proceedings in which prosecutors made use of Financial Intelligence Unit (COAF) reports that the COAF had supplied to the prosecutors without prior judicial authorization. The WGB was sufficiently concerned by these developments that it sent a high-level mission to Brazil to discuss its concerns. Then in 2021, following after recurring threats and setbacks to Brazil’s anticorruption legal framework (extensively detailed by Transparency International Brazil here, here and here), the WGB decided to establish a Monitoring Sub-Group, which monitored 12 issues of concern until December 2022. (In 2023, that special monitoring process was merged with the ordinary Phase 4 review process.)

This Phase 4 report reiterated concerns about the chilling effect of the Abuse of Authority Law, as well as recent disciplinary proceedings against prosecutors in high-profile corruption cases. Notably, the report not only acknowledges but appears to accept the allegation that prosecutors in Brazil’s so-called “Car Wash” investigation—particularly with respect to the prosecution and conviction of President Lula—acted with political bias. But the report also indicates a serious concern about how proceedings against individual prosecutors could have a chilling effect. More broadly, the report notes concerns that prosecutorial independence has eroded in recent years. While the report does not name Augusto Aras, the former Prosecutor General appointed by President Bolsonaro, there is little doubt that he played a key role in this erosion. The WGB’s report recommended that Brazil put in place safeguards to protect the Office of the Prosecutor General from politization or the perception of politization. Unfortunately, it does not appear that President Lula is likely to reverse the current worrisome trend. The usual practice in Brazil has been for the President to appoint a Prosecutor General from a short list prepared by the federal prosecutors, and President Lula adhered to this tradition during his first two terms in office (between 2003 and 2010). But for the upcoming appointment of the next Prosecutor General, President Lula has announced that he will not limit the candidate pool to the list prepared by the prosecutors.

The WGB’s Phase 4 report raised a number of other concerns as well. For example, the evaluators criticized the lack of transparency regarding the leniency agreements that prosecutors have reached with companies in many corruption cases, noting that authorities do not “publicize the main facts of the foreign bribery allegations,” and were not able to provide information about the sanctions imposed even to the WGB evaluators. Additionally, the WGB noted with concern the Supreme Court’s decision invalidating the evidence obtained in the Car Wash Task Force’s leniency agreement with the Odebrecht company—a case that has been much discussed on this blog (see here, here, here and here). Among its concerns about this decision, the WGB noted the adverse impact the decision may have on legal certainty of leniency agreements, and the the WGB recommended that Brazilian authorities take steps to ensure that “there is no structural problem in using evidence obtained through leniency agreements.”

Internationally recognized assessments, such as this one from the WGB, are an important source of independent evaluation of the effectiveness of anticorruption laws and institutions. Hopefully, the alarms that the WGB has sounded will prompt Brazilian citizens, institutions, and politicians to reevaluate their efforts to combat corruption and make appropriate course corrections, so that Brazil no longer falls short of international best practices.