Key Benefits:
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,