Whistleblowing, investigações internas corporativas e a mentira organizada na política criminal legislativa brasileira

Abstract

The present research refers to an analysis, under the perspective of Legislative Criminal Policy, about the context in which the whistleblowing has inserted in the Brazilian legal system from the enactment of the Federal Act no. 13,964/2019 (named as "Anti-Crime Package"). In conjunction with it, this study is conducted to examine internal corporate investigations, a consequence of an internal whistleblower performance (in Brazil this particular mode has not been regulated yet) and the impacts caused by these procedures on the right of non-self-incrimination of a person under investigation. In the context of these two mainstays of compliance programs - whistleblowing programs and internal corporate investigations -, two situations of people vulnerability are identified: the unrealizable protection given to the whistleblower through the novel legislation and the fragility of right of non-self-incrimination, due to the absence of specific rules and judicial control, of an individual during an internal investigation process within a corporation. The hypothesis developed is that, as a public policy, the democratic legitimation of the Brazilian legislative criminal policy involves the preservation of the factual truth, as a prior (pre-political) and pivotal condition of a free political debate, which will come out later, through the legal enactment. The examination of national criminal policy, in relation to these two pillars of compliance programs, is based on the dialogue with Hannah Arendt’s thought, especially in regard to the dealing with truth and lies in politics in two important essays - “Lying in Politics” and “Truth and Politics”. As axes of analysis, it examines political-criminal discourses placed in the justifications within the draft bills in progress and in the current legislation. Alongside, this research focuses on the exam of failures and omissions in Brazilian legislation . It is proposed that, from a re-encounter with the factual truth, the discourse of criminal policy must be reoriented towards to be grounded in an ethical and non-efficiency rationality, which will allow the overcoming of the democratic failure, the current place of Brazilian criminal policy.