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Corruption Prevention Council

Original Language Title: Conselho de Prevenção da Corrupção

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Draft Law No 540 /X

(Council for the Prevention of Corruption)

Exhibition of reasons

1. The phenomenon of corruption threatens the rule of law, affecting and

corroding the institutions and structuring principles of a society

democratic, instituting the prevalence of privilege, inequality, of the

bias and fraud on the values of law, equality, the

transparency and thoroughness in public action.

Fighting corruption, preventative and repressively is, by this means,

a vital need of the democratic state that cannot suffice with

the appearances or the superficiality of an easy mediatism. The problem does not

is therefore to present a any project to show that it is

do something; the important thing is to continue to do something that actually

serve to prevent and fight corruption.

The project now presented comes in the wake of the efforts

developed over the course of the legislature, well translated into the approval of

several diplomas with implications in combating corruption, as they are: the

amendments to the Criminal Code and to the Code of Criminal Procedure, with particular

incidence in the criminal liability of legal persons, the law on the

corruption in sports activity, the Georgian digital transcript

of the municipal planning plans, the ratification of the

United Nations Convention against Corruption, the Framework Law of the Policy

criminal, as well as the diploma that sets out the objectives, priorities and

criminal policy guidelines for the biennium of 2007-2009, the approval of

measures to combat corruption by Law No. 19/2008, the creation of a

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criminal regime of corruption in international trade and the private sector

by Law No. 20/2008 and the passage of Law No. 25/2008 that corresponds to the

transposition of the Directive on the prevention of the use of the system

financial and the activities and professions specially designated for

effects of money laundering and financing of terrorism.

The draft-law that we present creates the Prevention Council of

Corruption (CPC), the endowed entity of administrative independence and

functional, which has as central objectives to detect and prevent the risks of

corruption, collect and process information so as to identify the areas

more vulnerable to the penetration of the phenomenon, and to follow up and evaluate the

effectiveness of legal instruments and administrative measures

adopted by the Public Administration and the Corporate Public Sector.

2. The essential character of the preventive dimension of the fight against the

corruption, of which one seeks to give account, were, incidently, well stressed

by the European Commission in communication to the European Parliament and to the

Economic and Social Committee (2003) when it spoke out on policy

global of the European Union in combating corruption. There you have

that the fight against corruption should focus " priority on measures

preventive " and take into consideration the work already done in institutions

international. Incidentally, the Commission considers that " the future initiatives

should focus on preventive measures having the aim to reduce the

opportunities for corrupt behaviour and introduce checks and

systematic inspections ".

Also in the United Nations Convention against Corruption (2003),

known by Mérida Convention, passed by Resolution of the

Assembly of the Republic No. 47/2007, and published in the Journal of the Republic of

9/21/2007, if it strengthens the same preventive dimension of the fight against the

corruption.

The approach to the phenomenon of corruption is there to be prosecuted

global and multidisciplinary, alluding not only to the investigation and repression of the

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phenomenon, but also to the prevention and promotion of integrity, of

liability and good management of public affairs and goods. With the

aiming for the pursuit and adoption of preventive measures, this Convention

dedicates Chapter II (articles 5º to 14º) precisely to preventive measures

of corruption, advocating that each State Party shall ensure the

existence of one or more organs, tasked with preventing corruption,

endowed with the necessary independence, material and personal resources

specialized. It also recommends the adoption of codes of conduct

for public servants, by instituting measures that facilitate communication

on the part of these to the competent authorities of acts of corruption that

take notice. And it imposes on public servants the duty to declare to the

competent authorities the external activities likely to create

conflicts of interest, as well as the publication of regular reports

on the risks of corruption of the Public Administration.

In the same way in the Group of States against Corruption of the Council

of Europe (GRECO), in the recommendations addressed to Portugal, pese

although it is recognized that there is already a set of means and tools

with anti-corruption purposes, it is concluded by the necessity of the

adoption of measures, of which it stands out, at the preventive level, the introduction

of appropriate methods and rules to all public servants,

particularly codes of conduct, or the intention to carry out analyses

regular from the entire public sector with a view to assessing and preventing the risks

of corruption.

In this same context, several Member States of the European Union

have created bodies of prevention of corruption. In France, for example,

there has been, since 1993, a Central Office for the Prevention of Corruption (Law No.

93-122, of January 29), chaired by a magistrate, which works together

of the Ministry of Justice. That organism serves to centralize the

information necessary for the detection and prevention of situations that

integrate this crime and crimes counterparts and collaborate with the authorities

judicial and administrative, at the request of these. Also the United Kingdom has,

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since 1994, the Committee on Standars in Public Life , independent body

which was created with the aim of analysing the conduct of those who

play public office, draw up surveys and codes of conduct,

as well as preparing reports to be submitted to the Prime Minister with

suggestions to be pursued in that field. In 1997, it was extended to its

competence to the matters relating to the financing of the parties. Already

Italy has, since 2004, a High Commissioner for the Prevention and the fight

Against Corruption, which works together with the Presidency of the Council of

Ministers, with the function of preventing and reducing the risk of corruption and others

crimes in the Public Administration.

3. In Portugal there are no services or departments vocationally

exclusively for the preventive dimension of corruption. Despite the

Status of the Public Prosecutor's Office to define that it competes especially

magistrate to promote and carry out criminal prevention actions, and fit the

Judicial Police to develop criminal prevention actions within the

limits of the respective legal assignments, this prevention focuss,

fundamentally, in an inter-related criminal prevention with the

criminal investigation.

With the establishment of the Council for the Prevention of Corruption (CPC), by the

present draft Law, it is intended to design an administrative entity

independent, government and the powers of research and prosecution,

which collect and treat information, draw up studies, opinions, codes of

good practice, reports to be submitted to the Assembly of the Republic,

always in view of preventive management of the risks of corruption and promotion

of a culture of responsibility in public administration and the sector

public business.

With it is meant to close a gap in risk prevention

previous to criminal prevention pursued by the Public Prosecutor's Office and by the

organs of criminal police, specifically of the Judiciary Police.

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The CPC has, therefore, a well-bounded nature, being an organ

independent, with a specialized qualification, with framing and

means appropriate to their preventive function. Compete for it, since soon,

centralize the collection and processing of the information required for detection and

prevention of active or passive corruption and the crimes that are

associates; as well as giving advice on the drafting or approval of

legislative or regulatory instruments, national or international, of

prevention or repression of corruption, the request of the Assembly of the

Republic, the Government or the governing bodies of the Regions own

Autonomas; it is incumbent on you to still regularly assess the effectiveness of the

legal instruments and administrative measures adopted by the

Public Administration and Public Sector Entrepreneurship for the prevention and

combat of the crimes linked to corruption; as well as, still, collaborate in the

adoption of internal measures likely to prevent the facts, or the risk

of their occurrence, specifically in the elaboration of codes conduct and in the

promotion of initial or permanent trainings of the agents of the

Public Administration.

That is, through the CPC it is intended to regularly assess the risks of the

phenomenon of corruption in the public sector, specifically by analyzing the

most vulnerable areas and promoting prevention strategies of the

corruption, as well as minimising the impact of the risks of this phenomenon on the

democratic society.

It is especially atoned that the CPC is an administrative entity whose

action and nature distinguishes it from any intervention within the framework of the

prevention or criminal investigation. The performance of the CPC does not interfere with the

competencies assigned to the criminal investigation authorities, nor to the

conferred on the Public Prosecutor's Office or the Public Administration in matter

discipline. And so, in the case of the scope of the CPC's activity if

evidencing facts likely to constitute criminal offence, the

Council will refer the participation to the Public Prosecutor's Office, as well as if

shall suspend the collection and processing of information whenever it has

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knowledge of the beginning of the corresponding inquiry procedure

criminal.

Its nature is, also, distinct from that of other warranty entities and

defence of fundamental rights and freedoms hosted by the Assembly

of the Republic, as they are the Personal Data Protection Commission, the

Access Committee to the Documents of the Administration and the Entity

Regulator of Social Communication.

The insertion of the CPC to the Court of Auditors, with autonomy and

externship in respect of that Court, it simultaneously ensures the

independence with respect to the bodies of exercise of political power,

in a clear guarantee of separation of powers and functions, and comes to privilege

synergies that, within the framework of the Public Administration, may result to

the preventive tasks of the CPC, without any risks of injury to the

Judicative function of the Court of Auditors or of the criminal investigation

the one that there is place.

Too much, is consensual the close connection between the damage caused by the

corruption and congenic activities and the injury of the financial interests of the

State, which to the Court of Auditors is to safeguard. In the same way as

composition of the CPC seeks to harness the synergies provided by the

internal control bodies and competent entities for the respective

prevention in the framework of Public Administration.

Thus, in the applicable constitutional, legal and regimental terms, the

Deputies of the Parliamentary Group of the Socialist Party undersigned

present the following:

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Draft Law

(Council for the Prevention of Corruption)

Article 1º (Subject)

This Law sets up the Council of the Prevention of Corruption (CPC), entity

independent administrative, operating together with the Court of Auditors, which

develops a nationwide activity in the field of prevention of

corruption and related offences.

Article 2º (Attributions and competences)

1. The activity of the CPC is exclusively geared to the prevention of

corruption, by incumbent on it:

a) collect and handle information regarding the detection and prevention of the

occurrence of facts of active or passive corruption, of crime

economic and financial, of money laundering, of trafficking in

influence, of illegitimate appropriation of public goods, of

damaging administration, of embezzle, of economic participation in

business, from abuse of power or breach of duty of secrecy, well

how from acquisitions of real estate or securities in

consequence of obtaining or unlawful use of information

privileged in the exercise of duties in the Public Administration or in the

Business Public Sector.

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b) Follow up on the application of legal instruments and measures

administrative adopted by the Public Administration and Sector

Business Public for the prevention and combat of the facts referred to

in (a) and evaluate the respective effectiveness;

c) Give opinion, the request of the Assembly of the Republic, of the Government

or of the governing bodies of the Autonomous Regions, on the

drafting or approval of normative instruments, internal or

international, of prevention or repression of the facts referred to in the

(a).

2. The CPC cooperates, the solicitation of the public entities concerned, in the

adoption of internal measures likely to prevent the occurrence of the facts

referred to in point (a) of paragraph 1, specifically:

a) In the elaboration of codes conduct which, among other objectives,

make it easier for your organs and agents to communicate to the authorities

competent of such facts or known situations in the performance

of their duties and establish the duty of participation of

external activities, investments, assets or benefits

substantial hailed or to be, likely to create conflicts of

interests in the performance of their duties;

b) In the promotion of initial or permanent trainings of the

respective agents for the prevention and combat of those facts or

situations.

3. The CPC cooperates with international bodies in activities

oriented to the same objectives.

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Article 3º (Composition)

The CPC is chaired by the President of the Court of Auditors and has the following

composition:

a) Director-General of the Court of Auditors, who is the Secretary-General;

b) Inspector General of Finance;

c) Inspector General of Public Works, Transport and Communications;

d) Inspector General of the Local Administration;

e) A magistrate of the Public Prosecutor's Office, designated by the Council

Top of the Public Prosecutor's Office, with a four-year term,

renewable;

(f) A lawyer, appointed by the General Council of the Order of the

Lawyers, with a renewable four-year term;

g) A personality of recognized merit in this area, co-opted

by the remaining members, with a four-year term

renewable.

Article 4º (Autonomy)

1. The CPC is endowed with administrative autonomy and its expenditure of

installation and operation constitute charge of the State, through the

respective Budget.

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2. The CPC draws up an annual budget draft, which is presented and

approved in the same terms of the draft Court Budget of

Accounts.

Article 5º (Organization and operation)

1. Compete to the CPC to approve the annual programme of activities, the report

annual and interim reports and remetallate them to the Assembly of the Republic and to the

Government.

2. Compete to the CPC approve the regulation of your organization and

operation and support service.

3. The members of the CPC are replaced, in their phalings or impediments,

by its legal substitutes, owing in the cases of points (e) and (f) of the article

3º to be designated a substitute in the act of designation of the actual holders.

4. Members of the CPC, with the exception of the President, are entitled only to

passwords of presence at each meeting, with amount fixed on the portaria of the

Ministry of Finance and Public Administration, under proposal of the

President.

Article 6º

(Support Service)

1. The framework of the technical and administrative support service of the CPC is set at

would pore from the Ministry of Finance and Public Administration, under proposal

of the CPC, and can only be filled with recourse to mobility instruments

of the public function.

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2. The employees of the frame have the maturities of the place of origin,

increased monthly permanent availability supplement in the vicar

Court of Auditors.

3. To the Secretary General of the CPC competes in administrative and financial management

of the support service, including the appointment of the staff, under the superintendence

of the President.

4. The CPC, where necessary, may deliberate to hire consultants

technicians for the elaboration of studies indispensable to the realization of their

objectives.

Article 7º

(Reports)

1. The CPC shall submit to the Assembly of the Republic and to the Government, until final

of March each year, a report of its activities from the previous year,

by proceeding wherever possible to the typification of occurrences or risk of

occurrence of facts mentioned in paragraph 1 (a) of Article 2º and

identifying the activities of aggravated risk in the Public Administration or in the

Business Public Sector.

2. They are considered to be aggravated risk activities, specifically, those which

cover acquisitions of goods and services, undertaken of public works and

concessions without contest, the state's real estate exchange with real estate

private individuals, planning decisions and territorial management, as well as

any others likely to propitiate insider information to

acquisitions by the agents who participate in them or their family members.

3. The CPC may draw up interim reports on actions undertaken for

fulfillment of the objectives mentioned in paragraph 1 (a) of Art 2º,

referring them to the Assembly of the Republic and to the Government.

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4. CPC reports may contain recommendations of legislative measures

or administrative appropriate to the fulfilment of the objectives mentioned in the

article 2º.

5. The CPC can only release its reports after these have been

received by the Assembly of the Republic and the Government.

Article 8º

(Criminal or disciplinary offences)

1. When you have knowledge of facts likely to constitute infringement

penal or disciplinary, the CPC will refer participation to the Public Prosecutor's Office or

competent disciplinary authority, as per cases.

2. As soon as the CPC has knowledge of the beginning of a procedure of

criminal or disciplinary inquiry by the facts mentioned in paragraph 1 (a)

of Article 2º, shall suspend the collection or processing of the information to them

relating to and shall communicate such suspension to the competent authorities, which

you will be able to request the submission of all relevant documents.

3. The reports and information communicated to the judicial authorities or

competent disciplars are subject to the adversarial in the corresponding

procedures and cannot be disclosed by the CPC.

Article 9º (Dever of collaboration with the CPC)

1. The public entities, bodies, services and agents of the Administration,

central, regional and local authorities, as well as the Public Sector entities

Business, must provide collaboration to the CPC by providing it, orally or

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in writing, the information that, in the field of assignments and competences of the

CPC, they are for this requested.

2. The unjustified default of this duty of collaboration should be

communicated to the organs of the respective tutelage for sanctionatory purposes,

disciplinary or gquestionnaires.

3. Without prejudice to the secrecy of justice, shall be referred to the CPC copies of

all shareholdings or complaints, decisions to file, prosecutions,

of pronunciation or of non-pronunciation, absolute sentences or convictions

relating to facts set out in paragraph 1 (a) of Article 2º.

4. They shall also be referred to the CPC copies of the audit reports

or inquiry of the Court of Auditors and internal control bodies or

inspection of the Central, regional or local Public Administration, or concerning the

companies in the Public Sector Entrepreneurship, which report facts set out in the

(a) of Article 2º (1) or deficiencies of organization of services

audited likely to behave risk of their occurrence.

5. Upon submission to the Assembly of the Republic, it shall be remitted to the

CPC, by the Attorney General of the Republic, a copy of the specific part of the

report on enforcement of the laws on criminal policy concerning crimes

associated with corruption, as well as the results of the annual analysis, carried out

by the Public Prosecutor's Office with the Constitutional Court, of the statements

presented after the expiry of the mandates or the cessation of duties of the

holders of political office.

Palace of Saint Benedict, June 11, 2008

The Deputies,