Table of Contents
- The Brazilian bribery problems in society
- Legal difference between Sweden and Brazil
The passive corruption article in Article 317 is the conduct practiced by the public official who requires or receives the improper advantage (more known as “kickback”), Article 333 differs somewhat. The topical article is known as the active corruption, and indicates that bribery is practiced by the one who offers or promised the improper advantage (the “kickback”) to the public official. There are, however, some observations needed to identify if this is the case or not; passive corruption is not only practiced by private individuals. A public servant who offers another public servant an improper advantage will be committing the crime of active corruption, an example of this could be an official judge who offers a traffic guard the bribe.
Important to note is that paying a bribe is not considered a crime. According to the Brazilian Penal Code, the penal type only provides for 'offering or promising improper advantage'. Thus, if a civil servant claims the improper advantage and the other individual pays, he or she will be liable for passive corruption, but his or her conduct is atypical, since he or she has not offered or promised the advantage. In terms of what penalty that would be given to a person who is caught bribing or receiving a bribe, the imposed penalty is imprisonment, from 2 to 12 years and a fine; which is just the same as for criminal breach against Article 317.
Another fundamental bribery article is Article 337 B. It states and translates to: “promise, offer or give, directly or indirectly, an unfair advantage to a foreign public official, or a third party, to determine that he or she may practice, omit, or delay an act of office related to the international business transaction”. Article 337 B relates to active corruption in international business transactions, which is regarded as a special typical figure in relation to the crime of Article 333, because, in the type of Article 337 B, the act of the civil servant is related to the international business transaction.
It should be duly noted that, in addition to the verbs “offer” and “promise”, that are also present in Article 333, the crime of active corruption in an international business transaction adds the verb 'to give.' Thus, this crime typifies the conduct of the person who gives the improper advantage, that is, the one who pays the “bribe” at the request of the foreign public official, regardless of having previously offered the advantage. What differs from both Article 317 and Article 333 is the imposed penalty. Concerning Article 337 B, the penalty is either imprisonment between one to eight years, or a given fine; the seriousness of the breach constitutes what penalty is to be given.
The Brazilian bribery problems in society
One can without a doubt chat up about different problems related to bribery in Brazil. However, the most significant problem I have come across is their longterm action in the system, that is the economy of the society. As an example, overpricing of road works or buildings by bribed persons causes a lack of money for investment in basic education – especially the payment of quality teachers – and leads thousands of children to illiteracy and eventually unemployment (and other degrading living conditions) for not having learned to reason properly because of the lack of properly trained teachers.
Legal difference between Sweden and Brazil
It is evident that Sweden’s and Brazil’s legislations on bribery differ quite a lot. As can be read, Brazil’s legislation is much tougher than Sweden’s ditto, and the reason seem to be quite easy to find out.
According to global organization Transparency, Sweden is ranked on a shared third place out of all countries in the world in terms of least corrupted country, with a score of 83. Sweden only see themselves surpassed by winning neighbor country Denmark and runnerup New Zealand. Regarding Brazil, they are found 102 positions down the table, on a staggering 105th place with a score of 35. Brazil being the eighth biggest economy in the world has with the 105th position had its worst position on over 7 seven years. The ranking is made out of a score of 0 to 100, where 0 indicates high corruption within the country, and 100 indicates the country being very clean from corruption.
This is most likely the reason why Sweden is considered to have very vague imposing sentences compared to Brazil’s longer imprisonment sentences. I believe the sentences in Brazil are supposed to work as some kind of deterrent means to people thinking of committing bribery. Sweden’s maximum imprisonment penalty of six years in cases of gross bribery is only half of the maximum prison sentence you find in Brazil (12 years according to Article 317), which presumably is set at the low number of years due to corruption being very abnormal and rare in Sweden.
Importance of subjective thoughts
After having now read up on the topical case details and the legislations differences, it is important to also state what I think of the case and what possible improvements that could be done in the future to prevent these kinds of suspicious affairs. The above information has been written in an objective way for the reader to understand as much as possible both about the case itself and the different legislations. Because of this, the following part will be written in a subjective way. This means the following part is based on subjective thoughts rather than found facts. Important to note however is that the following part is supported factwise from earlier mentioned facts, apart from the part with MERCOSUR which has been found in the referred literature.
The suspicious affair and MERCOSUR
The affair in question is, to me, quite strange. Without having prejudices about Brazilian politics and the unfortunate fate of corruption in the country, it seems strange that Sweden would be involved in such a case. With Sweden being ranked top 5 in terms of the least corrupted countries in the world, the affair would be deemed a fake story based on that information. Nonetheless, the investigators have, as has been noted, found evidence of payments from different parties to Brazilian officials which makes the case even more intriguing.
One can of course dig deeper in to the reason why Brazil would even have the need to buy new military fighter aircraft and would not stick with the older aircraft the country had. With an everevolving continent where the political stage differs from day to day, it is evident that Brazil needs to show its strength towards other countries on the continent. In addition to this, with current political crisis in Colombia, Chile and Bolivia, Brazil needs to be able to support these countries both economically and if needed, military. And one of the reasons? The socalled MERCOSUR. The MERCOSUR trade bloc was created in 1991 and has ever since its beginning helped countries around South America with everything related to trade.
In order to maintain trade with the countries involved in the MERCOSUR organization Brazil needs to make sure there is stability in the affected countries, and in order to do that, military support and support in general might be needed. With the addition of new military aircrafts, Brazil shows the rest of South America and also the worldwide world in general, that Brazil is not upgrading, but a country that is not deteriorating like world media occasionally mentions it is. It is also an important piece for Brazil to make sure they are considered the number one country in South America, as Brazil and neighboring country Argentina for long have been fighting for the premier spot on the continent as the best and strongest country.
Interestingly enough, the MERCOSUR trade bloc has been in crisis according to some authors. Two of the big players in the organization, Brazil and Argentina, will according to the writers have to argue and implement some measures that may stir the pot somewhat if MERCOSUR is to survive. These two nations face strong temptation to use security reasoning to enhance the importance of Mercosur in order to justify such measures.
Another reason is the political standpoint as a whole. Regardless of the aftermath that has included the bribery accusations, the acquisition shows the world that Brazil partly is restoring its military and claims the South American top position of the leading nation on the continent. In addition to the mentioned, it is also an important eyeopener to the rest of the world. With the acquisition, Brazil shows its forefeet in refurbishment, longsightedness and not least world presence.
With the acquisition of the new military fighter jet aircraft at hand, the pages turn to why Gripen was chosen as the premier aircraft; and this is what gets interesting. I personally believe, without any knowledge of fighter jets, that there most likely was some kind of shady payment involved that made former Brazilian president Dilma Rousseff choose the Swedish fighter over for example the Boeing Super Hornet. In terms of number of manufactured aircraft and known information about the aircraft, it is to me strange how the Swedish aircraft superseded the American one. It shall of course be noted that the Swedish aircraft has been praised with positive reviews, but it still seems strange to me why Brazil decided to go with Sweden’s choice when Brazil itself has a larger history of trading with the United States of America and other countries than Sweden.
Based on facts it is evident that Brazil is a country where corruption is considered high. At a first glance the Brazilian legislation seem well proportioned, but it is enough to make corruption go down? The short answer should be that it is enough, but the dismal truth is that it is much more than only about legislation in order to overcome and erase corruption in Brazil. Throughout history Brazil has been a country widely known for corruption, including the topical former presidents Lula and Rousseff. Many predecessors before them swore to fight corruption, but in the end not much effort was put in to the fight. Thus, what Brazil really needs is much more than only a president that commits to fighting corruption. In my opinion there are a few ways to largely decrease the percentage of corruption. The way to actually get there however is to be considered quite long, but the way is most likely needed for Brazil to get on its right keel.
The first step is to end impunity. As far as I have understood, far too many officials that are subject for corruption allegations end up with no sentence, and police officials that commit crimes walk free without any punishment. It is essential that there are effective laws to ensure that corrupt politicians and public officials are punished and thus break the cycle of impunity. Equal and fair justice for every citizen is a crucial element for a country’s stability and growth. In addition, it would also help to effectively fight crime.
The second step would be to reform the public administration and finance management. Of course, this is a project of extreme magnitude. Nonetheless it might be a needed feature to overcome corruption in Brazil. Such reforms as the topical ones that focus on improving financial management and making auditing agencies’ strength even greater could impact on a larger scale than public sector reforms battling curbing corruption. As an example, one of these could be a disclosure of budgets or a disclosure of where money is transferred or received. On the down side this would include an unproportionable amount of extra work and time cost, but as previously said, it might be needed to get Brazil on its right keel.
A third and, for this paper, final solution would be to raise awareness to the public, media and everyone employed by the government about the anticorruption campaigns and the punishment to bypass the law. With this comes a need to update and perhaps reform laws to make them even more harsh if a corruption case is brought forward to the court. In my opinion, only with a better awareness and transparency in the public, the democracy of Brazil can improve and become stronger. To back this up, the Annual Report on Latin America for 2018 states that three out of four Brazilians have little or no confidence in the government. To improve this data, a strong and cross cuttingtransparency system across all levels of government is of outmost importance. Implementing international standards to an even greater extent than current is equally important in this case. Open government strategies enable a culture of transparency, accountability and access to information as a means to fight and prevent corruption.
By implementing these solutions, the possibilities to trade and use suspicious transactions between state officials and companies across the world to and from Brazil, will diminish more and more, for every try there will be. It shall be duly observed however that the road for Brazil to accomplish these solutions and actually implement them, is very long and most likely not a straight one. I am confident however that with the will and fighting spirit to solve these problems that Brazil stand against, the corruption in Brazil surely will vanish in the future.