Integrated solutions
Article in O Globo, of 01/08/2017, on the need for integration among State institutions for greater legal certainty.
Translated from the original.
The 1 August edition of O Globo features, in its “Opinion” pages, an article by Fábio Medina Osório titled “Integrated Solutions.” In the article, Medina Osório addresses the need for integration among State institutions, allowing a more advanced perspective on legal certainty.
Integrated solutions
The trend should be the integration of institutions
BY FÁBIO MEDINA OSÓRIO
01/08/2017
The agenda of legal certainty in Brazil calls for integrated solutions from the various regulatory bodies. One of the most serious problems is state incoherence in the protection against the same unlawful facts, insofar as one institution decides the same fact differently from another, and this leads to divergent understandings and contradictions, perpetuating conflicts. It is therefore not rare for the closing of a criminal inquiry, far from meaning the pacification of a problem, to signal only the beginning of an action of another nature, such as administrative improbity, or disciplinary proceedings.
However, technological and normative advances, including those in case law, have provided interesting experiences of integration among State institutions, allowing a more advanced perspective of legal certainty. The concept of the “task force,” very much in vogue today, reflects this kind of managerial vision focused on temporariness and on specific and clearly defined objectives, grounded in specialization and in the division of responsibilities, according to the areas of action of each institution belonging to the working group.
Thus, in the face of a “task force,” an unlawful act will receive the systemic gaze of several public institutions. And even when one is not in the terrain of those working groups, the trend should be the integration of institutions in a systemic and harmonious vision of action.
By way of example, an offer of an undue advantage to a public agent, in the context of an unlawful organization, by a company executive may give rise to the simultaneous action of federal institutions, such as: the Federal Revenue Service (collection of evaded taxes); the Public Prosecution Service (criminal and improbity areas); the Federal Court of Accounts (application of sanctions to legal entities and individuals); the Central Bank (harm to the national financial system) and/or the Securities and Exchange Commission (if it affects the capital market); the Administrative Council for Economic Defense (harm to free competition); the Ministry of Transparency (application of the Anti-Corruption Law); the Office of the Attorney General of Brazil (defense of the federal treasury and application of the Improbity Law).
There are, furthermore, other oversight entities that may act and impose sanctions. These are multiple parallel and simultaneous investigations, which affect natural persons and legal entities.
Solutions, whether coercive or consensual, can and should likewise be seen in an integrated way: conduct adjustment agreements; leniency agreements; undertakings or agreements to cease unlawful practices; plea cooperation agreements; informing; the effects of one decision on another and the prohibition of disproportionate penalties.
Beyond the “task force,” the State needs to adapt to the idea of intelligence and communicability among bodies. And contemporary legal practice must act with an integrated and transdisciplinary vision, seeking formulas that stabilize solutions to conflicts, above all when different institutions are acting in relation to the same fact and the same people. Evidently no institution will give up its responsibilities or prerogatives. But it is necessary that all of them dialogue with one another and seek coherent paths.
Fábio Medina Osório is a jurist and was a minister of the Office of the Attorney General of the Union