Compliance como atenuante do crime de corrupção
Compliance como atenuante do crime de corrupção
21/05/2014
Por: Fernanda Terra
Em Fevereiro/2014, após 180 dias de sua publicação, entrou em vigor a Lei nº12.846/2013 – conhecida como Lei anti-corrupção, estabelecendo um marco legal para responsabilização objetiva das empresas.
Embora ainda sem regulamentação, portanto sem possibilidade de aplicação, a Lei movimentou o cenário das empresas em geral, especialmente porque traz como penalidade multa de até 20% do faturamento bruto, responsabilidade objetiva dos dirigentes, isto é, independente de estar diretamente ligado ao ato de corrupção poderá ser responsabilizado caso qualquer funcionário o faça, e por último e ainda mais grave a Lei prevê o fim da empresa.
Em que pesem apontamentos de inconstitucionalidade e ilegalidade nestas previsões, e o alarde da Corregedoria Geral da União-CGU de punições exarcebadas que podem fazer com que a Lei não seja efetiva, a norma definitivamente mudará o cenário de atuação nas diretorias das empresas.
Historicamente os Estados Unidos são os pioneiros na aplicação de Leis Anti Corrupção, desde 1977 com Foreign Corrupt Practices Act – FCPA, pressionaram a Inglaterra que possui uma lei ainda mais dura UK Bribery Act, o Brasil que já assinou tratados internacionais anticorrupção, tinha prazo até 2014 para publicar sua própria legislação, buscando melhorar sua posição para investimento internacional na OCDE.
Na esteira das leis estrangeiras a Lei Brasileira foi publicada, deixando a comunidade jurídica incomodada com pontos que claramente ferem garantias constitucionais, e os dirigentes de empresas assustados com a possibilidade de responsabilização de crimes que podem ser cometidos por funcionários em qualquer escala da hierarquia, tendo ou não conhecimento, e o pior podendo ser denunciado pela “autoridade máxima” de todo órgão do Executivo, Legislativo e Judiciário, deixando uma larga margem para abusos e erros.
Neste cenário enquanto esperamos a regulamentação que já está pronta na Casa Civil aguardando a chancela presidencial e supõe-se seguirá o FCPA, podemos e devemos nos antecipar às práticas de Compliance, pois a existência de mecanismos e procedimentos internos de integridade, auditoria e incentivo à denúncia de irregularidades e a aplicação efetiva de códigos de ética e de conduta no âmbito da pessoa jurídica, conforme determina a Lei publicada e jurisprudência internacional comparada é um mecanismo eficaz de atenuação das penas.
Uma das Big Four publicou em seu site que 5% das pessoas terão seus princípios como dogmas e jamais cometerão crimes, outros 5% já acordarão pensando em como cometê-los, mas 90% dançarão conforme a música e portanto, estarão sujeitas às pressões internas e externas de suas companhias e país, nesta margem o Compliance atuará preventivamente espelhando a cultura e os valores dos dirigentes, construindo muros que dificultam a atuação da minoria e evitam a oportunidade para maioria.
Ciente da necessidade criada pela nova lei, mas sem perder de vista nossa cultura e a realidade do nosso país é preciso vencer preconceitos e construir um programa de Compliance levando em consideração a eficiência empresarial, assim o programa deve ser desenvolvido considerando a estratégia e administração de cada negócio, gestão de risco e o Direito Nacional.
Ainda que exista um gap entre a proposta e a realidade, consideramos que este é um caminho sem volta para as empresas e para um país que busca melhorar sua imagem internacional.
Além do que a inserção de penas administrativas no sistema legal Brasileiro traz irremediavelmente um cenário onde é preciso pensar em Compliance, como espelho dos valores dos dirigentes e demonstração de boa-fé, o Compliance efetivo talvez não exclua a responsabilidade, mas certamente atenuará as sanções, sendo instrumento essencial após a Lei Anti-corrupção.
Fernanda Terra é sócia do Terra, Pimentel e Vecci Advogados, advogada especialista em Direito Tributário, e atualmente cursa Governança Corporativa e Compliance no INSPER.
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