A Plan To Share FCPA Penalties with Brazil has Been Thwarted… by Brazil: The Supreme Court's Invalidation of the Lava Jato Foundation

A frequent criticism of how the US Department of Justice (DOJ) enforces the Foreign Corrupt Practices Act (FCPA) is that the fines recovered typically go to the US Treasury,而不是被用来赔偿贿赂发生国的腐败造成的损害。Those who hold that view were likely encouraged by the non-prosecution agreement (NPA) that the DOJ concluded with Petrobras,the Brazilian state-owned oil company,in September 2018.美国针对巴西石油公司的执法行动是所谓的“熔岩加托(洗车)”调查的发展,in which firms paid off some Petrobras' senior employees to benefit them in the contracts they had with the oil company.Such senior employees also shared a portion of the briber of politicians and political parties.In Brazil,Petrobras (and its shareholders,including the Brazilian federal government) are considered the victims of this scheme,但美国司法部认为巴西石油公司是一个犯罪者(也是一个受害者)。因为巴西石油公司的官员促成了贿赂的支付,违反《反海外腐败法》。Thus,the DOJ brought an enforcement action against Petrobras,and the parties settled via an NPA that required Petrobras to pay over US$852 million in penalties for FCPA violations.But—and here is the interesting part—the NPA also stated that the US government would credit against this judgment 80% of the total (over US$682 million) that Petrobras would pay to Brazilian authorities pursuant to an agreement to be negotiated subsequently between Petrobras and the Brazilian authorities.

This unusual agreement was the result of unusually close cooperation between U.S.巴西当局,尤其是Lava Jato特别工作组(处理一系列与巴西石油公司有关的案件的联邦检察官小组)。在司法部和巴西石油公司之间的NPA结束后,the Task Force then entered into negotiations with Petrobras and reached an agreement under which Petrobras would use US$682 million that it would otherwise owe to the US government to create a private charity,known unofficially as the Lava Jato Foundation,with the Foundation using half of the money to sponsor public interest initiatives,另一半补偿巴西石油公司的少数股东。According to the agreement,the Foundation would be governed by a committee of five unpaid members from civil society organizations,to be appointed by the Task Force upon judicial confirmation.Once created,这项任务将有一个特权,让它的一个成员坐在基金会的董事会。

巴西石油公司案的这项决议似乎是一项双赢的决议,也是未来案件的一个有希望的先例:美国对违反美国法律的行为实施了严厉制裁,but most of the money would be used to help the Brazilian people,他们无疑是受到巴西石油公司非法行为伤害最大的人。Yet this arrangement has proven extremely controversial in Brazil,both politically and legally.的确,the issue has divided the country's own federal prosecutors: The Prosecutor General (the head of the Federal Prosecutor's Office,从那里,熔岩JATA专责小组享有广泛的独立性,挑战了该基金会的创立违反宪法。她在巴西最高法院获胜(Supremo Tribunal Federalor STF),which suspended the operation of the Foundation.

什么,确切地,was the legal argument against the creation of the Lava Jato Foundation,STF的裁决对纠正外国贿赂的影响有何影响?

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Brazil's Supreme Court May Have Ended the Lava Jato Operation as We Know It

This past March,巴西最高法院Supremo Tribunal Federal,or STF) issued an opinion that is considered one of the most significant defeats yet to the anticorruption effort known as the Car Wash (or Lava Jato) operation (seehereandhere).The case involved allegations that the former mayor of Rio de Janeiro and his campaign manager received roughly USD 4 million from the construction firm Odebrecht that was used for a campaign slush fund,以换取与某些建设项目有关的商业优势。The particular legal claim on which the defendants prevailed concerned not a substantive issue,but rather a jurisdictional question: whether the case was brought in the wrong court.In Brazil,the ordinary federal courts adjudicate ordinary federal crimes,但也有专门的选举法庭处理违法行为,包括违反巴西选举法的犯罪行为。The use of slush funds,虽然没有明确列为《选举法》规定的刑事诉讼之一,可能会受到选举法禁止虚假陈述的起诉,因为做前市长据称做的事将导致无法报告竞选活动中使用的资金。这些指控通常由专门的选举法院审理。But taking illegal contributions to a campaign slush fund in exchange for political favors could also be charged as bribery (or associated crimes like money laundering) under Brazil's Criminal Code—crimes that would typically be adjudicated by the regular federal courts.Given that the same wrongful transaction might entail violations of both the Electoral Code and the Criminal Code,which court (or courts) should hear the case?

这是STF必须解决的问题,and it had,roughly speaking,three options.第一,the STF could have ruled that the whole case (both the electoral crimes and the ordinary crimes) should be heard by an ordinary court.第二种选择是要求特别选举法院裁决整个刑事案件,including the ordinary criminal charges.Third,STF本可以认为案件应该被分割,with an electoral court dealing with the alleged violations of the Electoral Code and an ordinary court handling all the other charges.在一个6-5的决定中,the STF went with the second option,holding that whenever an ordinary crime is committed in connection with an electoral crime,整个刑事案件必须由选举法院裁决。

This is hugely significant for the Lava Jato operation,由于该行动发现的许多案件涉及潜在的违反选举法的行为,以非法或未披露的竞选捐款形式,以换取政治利益。(The newspaper圣保罗报estimatesLava Jato将近30%的裁决涉及非法竞选资金的讨论。)但尽管一些与Lava Jato有关的案件已经提交选举法院,most of the cases,包括所有的主要刑事案件,已经在普通法庭被起诉。Federal prosecutors,especially the Lava Jato task force,are very concerned 188bet appabout the STF's decision and have criticized it as a significant blow to Brazil's anticorruption efforts.

他们担心是对的。Although some have maintained that there is no serious cause for concern,in fact the STF's decision poses a very serious problem,有几个原因。

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已经写了很多,on this blog and elsewhere,188bet app关于巴西总统贾尔·布尔索纳罗的当选对该国未来的反腐败议程意味着什么。(See,例如,hereandhere.) Bolsonaro's appeal rested in part on the Brazilian electorate's disgust with the entrenched corruption of the Brazilian political elite in all the major parties.Bolsonaro promised a rejection of "old politics," positioning himself both as a "disruptive" figure and as someone who would and could "get tough" on corruption—a new sheriff in town,事实上,who would put the bad guys behind bars.

Yet fighting corruption is not just 188bet appabout "toughness" or making fiery speeches or enforcing laws (though strong enforcement is certainly necessary).In a country like Brazil—a complicated multiparty democracy desperately in need of significant institutional reform—an effective anticorruption agenda requires the President and his senior ministers not only,or even primarily,to be the merciless watchdogs cracking down on wrongdoing,but rather the country's political leaders need to take the lead in articulating a coherent vision,动员和协调政府内外的多个利益相关者,与其他权力中心进行谈判,以确保执法工作的独立性和凝聚力,but also to promote the necessary legal and institutional reforms.Promoting public integrity requires a broader set of skills,ones that have unfortunately become associated with "old politics" in a negative way: building coalitions,与不同利益集团谈判,协调多个利益相关者。

There are at least three sorts of coordination,订婚,and negotiation that Brazil's new president must undertake if his purported commitment to fighting corruption is to yield results:

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Let Them Speak: Why Brazilian Courts Were Wrong to Bar Press Interviews with an Incarcerated Ex-President

In July 2017,Brazil's former President Luiz Inácio Lula da Silva ("Lula") was convicted on corruption and money laundering charges.他的上诉于2018年1月被驳回,他于2018年4月开始服刑。Although Lula was in jail,his party (the Workers Party,or PT) attempted to nominate him as its candidate for the October 2018 presidential elections.但根据巴西的《清洁记录法》(卢拉在担任总统时亲自签署成为法律),individuals whose convictions have been affirmed on appeal cannot run for elective offices.Though Lula and his defenders argued that he should be allowed to run anyway,his candidacy application was denied;最终,as most readers of this blog are likely aware,far-right candidate Jair Bolsonaro defeated the PT's alterative candidate,费尔南多·哈达德,在去年十月的选举中。

Perhaps less well known,至少在巴西以外,is the fact that in the run-up to the election,卢拉收到了几份媒体的采访邀请。尽管巴西没有明确规定是否允许囚犯接受采访,past practice has been to allow the press to reach out those in jail under the authorization of the prison management.在监狱拒绝了媒体组织的几次采访卢拉的请求后,those media outlets turned to the courts,asking for the right to interview Lula.The courts said no.The Brazilian Supreme Court,in an order by Supreme Court Justice Luis Fux,issued a preliminary injunction blocking the interviews stating (in a free translation from Portuguese):Continue reading渐次