With regard to investigations of corruption in Brazil, the police authority, the Brazilian Office of the Comptroller General (CGU), the Prosecution Office and even the Internal Affairs of various public entities are invariably involved.
The police authority, as the other agencies mentioned above, obviously has several investigative and interrogation techniques. However, the question arises as to what are the best practices to be followed when conducting an investigation into a potential case of corruption. The fact of the matter is that corruption is a consensual crime, which usually occurs without witnesses, is rarely documented and, therefore, it is not always easy to unravel.
On the other hand, the increasing use of technology ended up migrating the investigator's attention, which now has a much greater focus on the logical, digital environment over the physical, on-site environment. Therefore, e-mails and text messages are always under any investigator's main radar.
The Conference of International Investigators held in 2003 and endorsed by the United Nations Office on Drugs and Crime (UNODC), established ten guidelines considered essential for any investigative activity, especially the ones with the purpose of investigating bribery or corruption. They are:
1. Investigative activity should include the collection and analysis of documents and other material; the review of assets and premises of the organization; interviews of witnesses; observations of the investigators; and the opportunity for the subjects to respond to the complaints.
2. Investigative activity and critical decisions should be documented regularly with the managers of the investigating officer.
3. Investigative activity should require the examination of all evidence, both inculpatory and exculpatory.
4. Evidence, including corroborative testimonial, and forensic and documentary evidence, should be subject to validation. To the extent possible, interviews should be conducted by two investigators.
5. Documentary evidence should be identified and filed, with the designation of origin of the document, location and date, and name of the filing investigator.
6. Evidence likely to be used for judicial or administrative hearings should be secured and custody maintained.
7. Investigative activities by the investigator should not be inconsistent with the rules and regulations of the organization, and with due consideration of the applicable laws of the State where such activities occur.
8. The investigator may utilize informants and other sources of information and may assume responsibility for reasonable expenses incurred by such informants or sources.
9. Interviews should be conducted in the language of the person being interviewed, using independent interpreters, unless otherwise agreed.
10. The investigator may seek advice on the legal, cultural and ethical norms in connection with an investigation.
The guidelines above are very clear and, if followed through, will indeed make the investigation very reliable and efficient, in addition to ensuring the reliability of gathered evidence.
There is no way to fight corruption without a synergy of efforts between police authorities, the Prosecution Office, the Brazilian Office of the Comptroller General, and Internal Affairs, along with the judiciary branch.
In reference to the first lessons of Brazilian administrative law, students learn that the elements of the administrative act are: (i) cause, (ii) object, (iii) form, (iv) jurisdiction, and (v) purpose. Without engaging in political discourse, the country has recently witnessed the deconstruction of one of the largest joint actions against corruption in Brazil, due to the allegation of lack of jurisdiction on the part of the authorities investigating illicit acts of bribery or corruption. The controversy over jurisdiction, in this case, remains subjective and subject to the interpretation of the authority that is judging the case as long as there are no clear rules, either in the form of a procedural code or in the form of regulations.
Another issue that deserves thorough discussion is the appropriate time for arguing jurisdiction. There are already provisions in Brazilian law such as preclusion. Therefore, one wonders why not establish a time for arguing jurisdiction, so as to end this discussion.
Those working against bribery and corruption know their greatest enemy: impunity. In addition, compliance program operators also know an important maxim: be efficient and demonstrate it! Therefore, impunity or the perception of impunity can be compared to the oxygen needed to fuel a fire.
On the other hand, the best ally of those who fight corruption are whistleblowers. By transforming into law the anti-crime package created by former Justice Sérgio Moro, Brazilian law has incorporated protection and rewards for whistleblowers who bring an act of corruption to the attention of the authorities. However, society is unaware of it, the different instances of government ignore it, and this provision thus becomes yet another unknown norm. This is regrettable, as the Government does not have sufficient human or financial resources to identify acts of corruption, while whistleblowers are usually inside the institution, whether public or private, where the act is taking place.
Analyzing another good practice introduced by the United Nations, one must refer to the Handbook on Practical Anti-Corruption Measures for Prosecutors and Investigators, which promotes the identification of four fundamental ways to deal with corruption:
1. By criminal or administrative prosecutions, leading to possible imprisonment, fines, restitution orders or other punishment;
2. By disciplinary actions of an administrative nature, leading to possible employment-related measures such as dismissal or demotion;
3. By bringing or encouraging civil proceedings in which those directly affected (or the State) seek to recover the proceeds of corruption or ask for civil damages; and,
4. Through remedial actions, such as the retraining of individuals or restructuring of operations in ways that reduce or eliminate opportunities for corruption (but without necessarily seeking to discipline those involved).
Although this article is focused on external investigations carried out by different authorities, which end up having to act in synergy to achieve efficiency in the fight against corruption, one should not underestimate the capacity of some organizations in the private sector, and even in the public sector, to undertake efficient internal investigations with the purpose of identifying attempted or consummated acts of bribery or corruption.
Finally, this article must reference an anthological text from The Guardian, signed by Rachel Banning Lover, on smart ways to use technology in favor of fighting corruption, with spectacular examples:
