No âmbito do cumprimento da Convenção Anti-Suborno da OCDE, a Transparency International emitiu um relatório no dia 28 de Julho onde inclui Portugal nos países que investigam apenas pequenos casos de suborno ou que não têm casos nem investigações a decorrer.
O relatório é bastante crítico com Portugal e a acção governativa e legislativa face à corrupção. A Transparency International conclui que a independência do Ministério Público é insuficiente; a execução judicial é descordenada e descentralizada; há falta de recursos e falta de formação especializada no Ministério Público; o sistema de reclamações e de protecção ao denunciante é inadequado; e existe falta de sensibilização.
Recorde-se que segundo o barómetro de 2009 da Transparency International, nos partidos políticos portugueses fervilha a corrupção. De 1 (não há corrupção) a 5 (corrupção extrema) os partidos políticos foram avaliados por 500 entrevistados com um 4.
Conclusões do relatório (em inglês) sobre Portugal:
Foreign bribery cases or investigations: There is hitherto no public information on cases and investigations except for published information provided by Portugal to the OECD indicating five foreign bribery convictions. No information about these cases is available.
Domestic bribery by foreign companies: At least one prosecution and two known investigations. The prosecution relates to alleged malfeasance in a public hospital’s procurement of €1.2 million in medical equipment from an Australian company via its Portuguese distributor and its Swiss subsidiary. Doctors at the hospital who were part of the decision-making jury were offered leisure trips with their families in 2003 and 2004. In October 2009 seven actors were indicted, including three medical doctors and two managers of the Australian company, one of them Swiss. There have also been media reports about an investigation triggered by an anonymous complaint, involving Freeport, a major UK property development company (a subsidiary of the Carlyle Group since 2007) in connection with the licence it obtained in 2002 to build a shopping centre. The investigation reportedly has been extended by the Public Ministry until June 2010 under cloak of judicial secrecy.
The Portuguese investigation of the ‘Submarines Affair’ continues, in which the German Submarine Consortium and the German company Ferrostaal are suspected of having influenced the sale of two Thyssen-Krupp-built submarines to the Portuguese Navy in 2004 for €1 billion, inter alia, through contributions to the political party of the defence minister. There are new developments in the German investigation of Ferrostaal and in April 2010 Portuguese authorities investigating the case reportedly uncovered an alleged commission invoice for €30 million. The invoice was found at Espírito Santo Group company ESCOM, which the Public Ministry reportedly suspects may have been used as a bogus consultancy firm to pay millions of euros in bribes to crooked Portuguese officials.
Inadequacies in legal framework: A key inadequacy in the legal framework lies in the amount of separate laws dealing with corruption-related issues, originating with a confusing web of intercepting articles that provide for interpretation issues and a lack of easy-to-understand mechanisms that can ultimately lead to legal uncertainty.
Inadequacies in enforcement system: The main flaw is the lack of resources for the judiciary police to conduct financial and other investigations. Other key reasons for unsuccessful enforcement are a lack of coordination between investigating police organs and the Prosecutor’s Office and a lack of specialised in-service training of inspectors/investigators. There is also inadequate protection for whistleblowers and insufficient awareness-raising about the foreign bribery prohibition. Authorities notice a slight improvement in mutual legal assistance due to increasing harmonisation through European legal instruments, such as the European Arrest Warrant, the creation of Joint Investigation Teams and the Schengen Agreement.
Access to information about cases and investigations: The publicly available information continues sometimes to be incomplete, mostly due to the large number of units responsible for collecting and treating corruption related information. Furthermore, criminal proceedings are kept confidential during investigations.
Requirements of export credit agencies: COSEC is the main state ECA in Portugal and includes an anti-bribery statement in application forms, which must be subscribed both by banks and/or exporters. This commitment extends to any person acting on behalf of the exporter/bank, whether an agent or a business partner. However, companies are usually not required to demonstrate they have an effective anti-bribery compliance programme. This is because it is considered is too ‘burdensome’ for companies, mostly small and medium-sized enterprises (SMEs), although the difficulties faced by SMEs were not specified. Only if there has been a court conviction or other equivalent administrative sanction for violation of laws against bribery will COSEC demand some additional verification on compliance programmes from its applicants, although this has never occurred. On the compensation of agents, applicants are required to provide information about the percentage of commission fees paid. If these commission fees seem to be excessive in respect of the services rendered or sector of activity, additional requests for information (enhanced due diligence) are addressed to the applicant to clarify this issue, which may even lead to a refusal to cover these amounts. In case of bribery, COSEC will inform authorities of the issue, invalidate its coverage, seek to recover already paid claims and deny access to official credit support for a specified period of time.
Facilitation payments: Such payments are forbidden in Portugal as they are covered by the general provisions on domestic corruption offences. This does not mean, however, that these kinds of payments are challenged by law enforcers in practice. There is an underlying social adequacy criteria, which allows common social practices (disregarding the value of the offering, as the social adequacy may differ on context). Facilitation payments, in the form of gifts and hospitality, are a common feature of Portuguese business culture.
Recent developments: Two new laws were passed in 2009 relating to the principle of mutual recognition of judicial orders and immediate execution of judicial decisions, such as decisions to freeze property or evidence, or confiscate criminal proceeds. These result from the previous successful implementation of the European arrest warrant (EAW) and other international harmonisation efforts. None of these instruments has had any practical application as of yet. This means that recognition of decisions can be quicker, as the dual criminality of the acts or ‘double jeopardy’ does not need to be verified. This in turn helps with prescription periods (statutes of limitations). On the role export credit agencies, recent legislation replaced the former Financial Guarantees Council (FGC) with the Export and Investment Financial Guarantees Board (CGFEI), which has implications for oversight and decision-making in this area.
Recommendations: Rethink corruption-related legal provisions, their content and their interaction with general crime related provisions. Assure the independence of judiciary authorities and police bodies. Improve financial investigation and other types of analysis through strengthening the information treatment system and diversifying investigation teams. Provide criminal police bodies with the necessary means and resources to prevent corruption-related proceedings from dragging in time. Ensure better protection for whistleblowers. Do more to raise awareness about the foreign bribery prohibition.
