I. National legal framework
1. Criminal Code
Brazilian Criminal Code of 1940 establishes the criminal offences:
a) Definiton of Passiv Corruption
Article 317 defines passive corruption as the deliberate action of a person who, in the course of his business activities requests or receives an undue advantage of any kind whatsoever, or accepts the promise of such an advantage, for himself or for a third party, for him to perform or refrain from performing an act, in breach of his duties. The punishemnt for it is from 2 to 12 years.
b) Definiton of Active Corruption
Article 333 defines active corruption as deliberate action of whosoever promises or gives an undue advantage for himself the course of the business activities of that person in order that the person should perform or refrain from performing an act, in breach of his duties. The punishment for it is from 2 to 12 years.
Law n° 8.429 of June 2, 1992.
This Law contains sanctions to punish agents in case of illicit enrichment and corruption. According to Article 9 of this Law the public agent will be sanctioned if he receives a benefit or any other illegal advantage to perform an act contrary to his duties. The assets, rigths and valuables resulting from any kind of the crimes described in the Article 9 of this Law will be confiscated in favour of the Union.
3. Law 7.492 (Crimes against the Financial System)
The financial institutions are of public interest. So to prevent crimes against the Financial Entities was created this Law. It contains sanctions to punish the administration person, the Director of the financial institution as well customers of it , if they have participated in any crime described in this law.
The Law n° 9.613 of March 3, 1998 pertains to crimes of laundering or concealment of assets, rights, and valuables, measures designed to prevent the misuse of the financial system for illicit actions as in the Law, and creates the Financial Activities Control Council - COAF.
The Section 7th, paragraph 1 of this Law deals the confiscation of assets as an effect of the criminal conviction:
"In addition to the results set forth in the Criminal Code, a guilty sentence entails:
I- The forfeiture, in favor of the Union, of any assets, rights and valuables resulting from any of the crimes described in this Law..."
Crimes:
- Drug trafficking;
- Terrorism;
- Smuggling weapons;
- Extorsion through kidnapping;
- Acts against the public administration;
- Acts against the Brazilian fincancial system;
- Acts commited by an organised gang; and
- Acts against foreign public administration.
5. Law n° 9.034 of May 3, 1995 on Prevention and Suppression of the activities of Criminal Organisations
The Constitution of Brazil guarantees the right to privacy in the Article 5 X.
The Law 9.034 allows the judge to make use of the different operational ways described in this Law to investigate criminal organisations. Article 3 allows the access of privacy information like banking access in order to investigate the participants involved in it.
6. Decree n° 2.799 of October 8, 1998
This Decree allows the interne regime of COAF. According to Article 1 the COAF has the purpose to receive, to examine and to identify the occurrence of illicit activities and if necessary to apply administrative sanctions.
