committee of experts of the mechanism for follow-up on the

MECHANISM FOR FOLLOW-UP ON THE
SG/MESICIC/doc.168/05 rev. 4
IMPLEMENTATION OF THE INTER-AMERICAN 31 March 2006
CONVENTION AGAINST CORRUPTION Original:
Portuguese
Ninth Meeting of the Committee of Experts
March 27 - April 1, 2006
Washington, DC.
Español- Português Federative Republic of Brazil FINAL REPORT (Adopted at the March 31, 2006 plenary session) [pic]
COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON THE
IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION FINAL REPORT ON IMPLEMENTATION IN THE
Federative Republic of Brazil OF THE CONVENTION PROVISIONS SELECTED FOR
REVIEW IN THE FRAMEWORK OF THE FIRST ROUND[1]
INTRODUCTION 1. Legal-institutional system [2] The Federative Republic of Brazil, formed by the indivisible union of the
states, the municipalities and the Federal District, is a democratic State
under the rule of law, founded upon the principles of sovereignty,
citizenry, the dignity of the human person, the social values of work and
free enterprise, and political pluralism.
Popular sovereignty is exercised through universal suffrage and by direct
and secret ballot, with each person's vote carrying equal weight. When the
law so prescribes, popular sovereignty is also exercised by plebiscite,
referendum and popular initiative.[3]
Under Article 2 of the Federal Constitution of Brazil, the Legislative,
Executive and Judicial are the three branches of government, all three
acting in concert with one another but each independent of the other two
and with its own principal function, as well as other different functions
spelled out in the Constitution.
Executive power is exercised by the President of the Republic, assisted by
the ministers of State. The President and the Vice President of the
Republic are elected simultaneously, by an absolute majority. The president
serves four years in office, and may be re-elected to another term only
once.
Under the presidential system, the President of the Republic serves as
chief of State and head of government. As chief of State, the President
represents Federative Republic of Brazil in its relations with foreign
States (Article 84, subparagraphs VII and VIII) and is the embodiment of
the State's internal unity. The President's chief function as head of
government is that of directing the federal government. The President's
functions include those of instituting the legislative process in the
manner and in the cases set forth in the Constitution; approving,
promulgating and ordering the publication of laws and issuing executive
orders and regulations for faithful enforcement of the law.[4]
Federal legislative power is exercised by the bicameral body that is the
National Congress, which has two houses: the Chamber of Deputies and the
Federal Senate. The Chamber of Deputies is composed of representatives of
the people, elected by the system of proportional representation in every
state, territory and the Federal District. An individual elected to a seat
in the Chamber of Deputies will serve a four-year term. The Federal Senate
is composed of representatives of the states and of the Federal District.
Each of those units is represented by three senators, who serve eight-year
terms. In those eight-year periods, one-third of the representation from
each state and the Federal District will be renewed at the first four-year
mark, while the other two thirds will be renewed after the next four years.
The Constitution guarantees the judicial branch's functional,
administrative and financial autonomy. It further provides that its members
enjoy life tenure, may not be removed from office (except under certain
circumstances), and may not have their salaries cut.[5]
The Public Prosecution is a part of the executive branch, notwithstanding
the functional, administrative and financial autonomy granted to it by the
Constitution.[6] It is a permanent institution, essential to the
jurisdictional function of the State.[7] Its duty is to defend the
juridical order, the democratic system and inalienable social and
individual interests. The governing principles of the Public Prosecution
are unity, indivisibility and functional independence, and its functional
and administrative autonomy is ensured.
Under Articles 1 and 18 of the Federal Constitution, the political-
administrative structure of the Brazilian State is to serve the basic
purposes of national unity and decentralization among its autonomous units,
namely the Union, the states, the Federal District and the municipalities.
Federalism is a system involving both political participation and autonomy,
which is the federated units' capacity for self-organization and self-
legislation, self-government and self-administration. It presupposes
authorities and the constitutional separation of powers, with a view to
enabling the units of the Federation to engage in and develop regulatory
activities.
The legislative authorities of the Union, states, municipalities and the
Federal District are enumerated in the Constitution. While the Union has
certain exclusive powers, it does have other powers that it shares in
common with, concurrent with, and/or ancillary to the powers of the
Federation's other units.
The structure of the states in the Federation and the municipalities is
determined in their respective state constitutions and municipal organic
laws and through enactment of state laws and municipal ordinances, all of
which must respect the principles and authorities set forth in the Federal
Constitution. Even the Federal District is structured on the basis of its
own Organic Law.
Self-government by the states of the Union means that governors, deputy
governors[8] and state deputies are elected by direct vote, to four-year
terms. The state legislatures are unicameral bodies in which
parliamentarians convene for the state's legislative assembly. The
municipalities elect their respective mayors and deputy mayors by direct
ballot; elections for town/city council members are held every four years.
The Federal District elects its Governor and Deputy Governor and the
District deputies. The latter are the members of the local legislative
body. All these officials serve four-year terms.
The states of the Union and the municipalities administer their own affairs
by exercising the administrative, legislative, and taxation authorities
that the Federal Constitution confers upon them. The Federal District has
the same legislative authorities that states and municipalities enjoy under
the Constitution.
2. Ratification of the Convention and adherence to the Mechanism
According to the OAS General Secretariat's official records, the Federative
Republic of Brazil ratified the Inter-American Convention against
Corruption on July 10, 2002, and deposited the corresponding instrument of
ratification on July 24 of that year.[9]
In addition, the Federative Republic of Brazil signed the Declaration on
the Follow-up Mechanism for the Implementation of the Inter-American
Convention against Corruption on August 9, 2002.
I. SUMMARY OF THE INFORMATION RECEIVED
1. Response from Brazil
The Committee would like to acknowledge the cooperation received from
Brazil throughout the review process, especially the cooperation from the
Ministry of Justice, as evidenced by, inter alia, its response to the
questionnaire and its readiness to explain or elaborate upon its content.
When it presented its response, Brazil also included the laws and documents
it deemed relevant, which are listed as an appendix to this report.
For its review, the Committee examined the information sent by Brazil as of
August 20, 2005, as well as information that the Secretariat and members of
the review subgroup had requested in order to comply with their duties as
spelled out in the Committee's Rules of Procedure and Other Provisions.
2. Document presented by civil society
Under the Rules of Procedure and within the time frame the Committee set
during the course of its Sixth Regular Meeting, the Committee also received
the document that the Associação Brasileira de Jornalismo Investigativo
(ABRAJI) [Brazilian Association of Investigative Journalism] prepared in
conjunction with "Transparency International", in its capacity as a civil
society organization.[10]
II. REVIEW OF THE IMPLEMENTATION OF THE SELECTED PROVISIONS BY BRAZIL
1. A. CONSIDERATIONS ON THE SCOPE OF REVIEW IN THE CASE OF BRAZIL
A few comments should be made with respect to the review contained in this
report as it relates to the implementation in Brazil of the selected
provisions of the Convention.
As noted earlier in the "description of the legal and institutional
framework", the Federative Republic of Brazil is a federal state formed by
"the indissoluble union of States, Municipalities and the Federal District"
(Article 1 of the federal Constitution).
With respect to the scope of inter-American treaties and conventions
ratified by Brazil, we may say, on the basis of constitutional
provisions[11] and jurisprudence[12], that they also apply to the States,
the municipalities and the Federal District.
Thus, Brazil's response contains information in some cases that goes beyond
the federal level to include the