Analysis of the leniency agreement as an example of the institutional role of the National Council for the Public Prosecution (CNMP)'s anti-corruption commission and the attribution of the Public Prosecuter’s Office.

Abstract

The fight against corruption is a task that requires interinstitutional intervention from public and private spheres, focusing on an activity that mixes prevention, control and repression. As, in this context, the performance of the Public Prosecutor's Office, especially of the Commission for Confronting Corruption (CEC), is essential, the present work turns to questioning the way in which the leniency agreement can represent the materialization of the institutional role of this Commission, which makes up the National Council for the Public Prosecution (CNMP). To answer such an inquiry, the principles that underpin the emergence and expansion of these institutional policies are presented initially. In sequence, the so-called leniency agreement is discussed, understood as a winning collaboration proposal for companies that assist the Parquet – and/or the legitimate Government Agencies – at the administrative level. Consequently, the so-called Theory of Implicit Powers is sustained, which underlies the attribution of the Public Prosecuter’s Office to sign the said pact. It is concluded that the leniency agreement should be signed, preferably, jointly, by the Public Prosecuter’s Office and the other Government Agencies, so that there is legal security, and the guarantee of the principles of efficiency and the prevalence of the public interest. However, it is emphasized that the aforementioned American doctrine justifies the absence of nullity of the pact, if it is signed separately by the Public Prosecuter’s Office.