International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Monday, March 11, 2019

New Brazil President Gives Independence to Anti Corruption Agency

Council for the Control of Financial Activities - COAF (DECREE No. 9.663, OF JANUARY 1, 2019)

STATUTE OF THE FINANCIAL ACTIVITIES CONTROL COUNCIL - COAF

CHAPTER I

NATURE AND PURPOSE

 Article 1. The Council for the Control of Financial Activities - Coaf, a collective deliberation body with jurisdiction in the national territory, created by Law No. 9,613 of March 3, 1998 , part of the structure of the Ministry of Justice and Public Security, with headquarters in Federal District has the purpose of disciplining, administering administrative penalties, receiving, examining and identifying suspicious occurrences of illicit activities provided for in said Law, without prejudice to the jurisdiction of other public bodies and entities.

 Paragraph 1 - The Coaf may maintain decentralized centers, using the infrastructure of the regional units of the bodies to which the Directors belong, with a view to adequate coverage of the national territory.

 Paragraph 2. The Coaf may conclude technical cooperation agreements and agreements with public entities or private entities, in order to carry out the duties provided for in Law No. 9,613 of 1998.

CHAPTER II

OF THE ORGANIZATION

Section I

Organizational structure

 Art. 2 The Council for the Control of Financial Activities - Coaf has the following structure:

 I - Plenary;

 II - President;

 III - Cabinet;

 IV - Executive Secretariat;

 V - Financial Intelligence Directorate; and

 VI - Supervisory Board.

 Single paragraph. The Executive Secretary and the Directors shall be appointed by the President of the Coaf and appointed by the Minister of State for Justice and Public Security.

Section II

From the composition of the Plenary

 Article 3. The Plenary shall be chaired by the President of the Coaf and composed of public servants with an unblemished reputation and recognized competence in the area, chosen from among the members of the effective staff of the following organs and entities:

 I - Central Bank of Brazil;

 II - Brazilian Securities Commission;

 III - Private Insurance Superintendence;

 IV - Attorney General of the National Treasury;

 V - Special Secretariat of the Federal Revenue of Brazil;

 VI - Brazilian Intelligence Agency;

 VII - Ministry of Foreign Affairs;

 VIII - Ministry of Justice and Public Security;

 IX - Federal Police;

 X - National Superintendence of Complementary Pensions of the Ministry of Economy; and

 XI - Comptroller General of the Union.

 Single paragraph. The Councilors shall be appointed by the respective Ministers of State and appointed by the Minister of State for Justice and Public Security.

 Art. 4 The Coaf Plenary will have the support of the Executive Secretariat, the Financial Intelligence Board and the Supervisory Board.

Section III

From the position of President

 Art. 5 The office of President of the Coaf is of exclusive dedication, not admitting any accumulation, except those constitutionally allowed.

 Paragraph 1 - The provisions of paragraph 1 and paragraph 2 of art. 6, as well as in art. 7th.

 Paragraph 2. The President of the Coaf shall be appointed by the President of the Republic, by appointment of the Minister of State for Justice and Public Security.

Section IV

From the term of Counselor

 Art. 6 The term of office of the Directors shall be three years, with a re-appointment.

 Paragraph 1 - The Directors shall lose their term of office in the following cases:

 I - absolute civil incapacity;

 II - criminal conviction in a final judgment;

 III - administrative impropriety evidenced by disciplinary proceeding in accordance with the provisions of Law No. 8,112 of December 11, 1990 and Law No. 8,429 of June 2, 1992 ;

 IV - loss of the effective position in the organ of origin or retirement; or

 V - violation of the provisions of art. 7th.

  • 2 The member of the Plenary who is unjustifiably absent from three consecutive regular meetings or ten interim meetings shall automatically lose his term of office.
  • 3 In the event of loss of office or resignation of Board member, a substitute shall be appointed, who shall serve a regular term, observing the provisions of thecaput .

 Paragraph 4. The function of Director shall be exercised without prejudice to the regular attributions in the organs of origin.

Section V

From the fences

 Art. 7 - The President, the Board Members and the servants in office in Coaf are prohibited:

 I - to participate, in the form of controller, administrator, preposto or agent manager, of legal entities with related activities in the caput and in the sole paragraph of art. 9 of Law 9,613 of 1998 ;

 II - to issue an opinion on matters relating to its specialization, outside of its functional attributions, even if in theory or acting as a consultant to the legal entities referred to in item I of the caput ;

 III - to express, in any medium, an opinion on a pending trial in the Plenary; and

 IV - to provide or divulge information of a confidential nature, known or obtained as a result of the exercise of its functions, including to its organs of origin.

CHAPTER III

COMPETENCES AND TASKS

Section I

The competence of the Plenary

 Article 8 The Plenary shall be responsible for:

 I - to ensure compliance with the pertinent legislation, the Statute of the Coaf and the Internal Regulations of Coaf;

 II - to discipline the subject of its competence, under the terms of Law no. 9.613, of 1998 ;

 III - decide on infractions and apply the administrative penalties provided for in art. 12 of Law No. 9,613, of 1998 , to the individuals and legal entities referred to in art. 9 of the aforementioned Law , for which there is no own supervisory or regulatory body;

 IV - issuing the instructions for the individuals and legal entities referred to in item III;

 V - to elaborate the list of transactions and suspicious transactions, according to the terms of § 1º of art. 11 of Law No. 9,613 of 1998 ;

 VI - to express its views on proposals for international agreements, within its sphere of competence, and to hear, when applicable, the other public bodies or entities involved in the matter;

 VII - establish parameters for the application of the penalties provided for in art. 12 of Law 9,613, of 1998 , for the infractions foreseen in art. 10 and art. 11 of Law No. 9,613 of 1998 ;

 VIII - to regulate the situations in which the summary rite defined in the Internal Rules of the Coaf applies; and

 IX - delegate to the President of the Coal jurisdiction to judge the merits of administrative procedures sanctioning the infractions provided for in item IV of the caput of art. 10 and item III of the caput of art. 11 of Law 9,613 of 1998 .

Section II

The duties of the President

 Art. 9º The President of Coaf is responsible for:

 I - to preside, with voting rights, including the one of quality, the meetings of the Coaf Plenary;

 II - to edit the normative and regulatory acts necessary to improve the Coaf's work;

 III - to convene meetings and determine the organization of the agenda;

 IV - to sign the official acts of the Coaf and the decisions of the Plenary;

 V - guide the administrative activities of Coaf;

 VI - officiate the competent authorities;

 VII - appoint an expert, to assist in the activities of the Plenary, when the matter demands specific technical knowledge;

 VIII - invite representatives of public or private bodies or entities to participate in meetings, without voting rights, observing the guest's reservation of information of a restricted and confidential nature.

 IX - represent the Coaf before the Public Powers and other authorities, including international authorities;

 X - execute and enforce decisions of the Plenary;

 XI - to promote the exchange of information on financial intelligence, articulation and institutional cooperation with relevant authorities, including from other countries and international organizations, in the prevention and combating of money laundering and terrorist financing;

 XII - deliberate ad referendum of the Plenary on the matters of competence of the Plenary, in cases of urgency and of relevant interest;

 XIII - promote, in articulation with the other Coaf leaders, integrity, internal control and management of institutional risks; and

 XIV - to ensure, together with the other officers and servants, the institutional image of Coaf.

Section III

Responsible for the Executive Secretariat

 Article 10. The Executive Secretariat shall:

 I - conduct the activities of organizational management, development and innovation within Coaf;

 II - conduct administrative, document and archive management activities related to Coaf activities;

 III - to conduct the information technology management activities of Coaf;

 IV - coordinate the management of institutional security;

 V - to guide, coordinate and supervise the activities of attendance to the public, to the supervised ones, the regulators and the competent authorities;

 VI - to coordinate and supervise the administrative activities of Coaf;

 VII - assist the President in the definition of guidelines and in the implementation of the actions of the area of competence of Coaf; and

 VIII - perform other duties committed by the Plenary or by the President.

Section IV

Responsible for the Financial Intelligence Board

 Art. 11. The Financial Intelligence Board is responsible for:

 I - to receive, from the persons referred to in art. 9 of Law 9,613 of 1998 , communications of suspicious operations or in kind, to examine and identify the suspected occurrences of illicit activities provided for in said Law;

 II - to receive reports, including anonymous, regarding operations considered suspicious;

 III - disseminate information to the competent authorities when there is suspicion of criminal offenses or indications of their practice;

 IV - manage data and information;

 V - require information maintained in the databases of public and private bodies and entities;

 VI - share information with competent authorities of other countries and international organizations;

 VII - to coordinate and propose mechanisms for cooperation and exchange of information, in Brazil and abroad, to enable swift and efficient actions to prevent and combat money laundering and terrorist financing; and

 VIII - requesting information and documents from the persons referred to in art. 9 of Law 9,613 of 1998 .

Section V

Responsible for the Supervisory Board

 Art. 12. The Supervisory Board is responsible for:

 I - supervise the fulfillment of the obligations to prevent and combat money laundering and the financing of terrorism by the persons referred to in art. 9 of Law 9,613, of 1998 , for which there is no own supervisory or regulatory body;

 II - to propose to the Plenary the edition of norms applicable to the people mentioned in art. 9 of Law 9,613, of 1998 , for which there is no own supervisory or regulatory body;

 III - to register the work of the Plenary on a permanent basis, and to respond to requests for information and documents that are of interest to the administrative sanctioning process;

 IV - to decide on the filing of preliminary investigation or for the institution of administrative sanctioning process;

 V - to sign subpoenas in the sanctioning administrative processes;

 VI - to decide on the granting of delay of time in the scope of administrative sanctioning processes, except in the hypotheses of competence of the Reporting Counselor;

 VII - determine the publication of an act and decision in the scope of administrative sanctioning processes;

 VIII - to coordinate with the regulatory bodies, the communicating institutions and the competent authorities on measures related to the prevention and combating of money laundering and the financing of terrorism; and

 IX - to request information and documents from the obligated persons listed in art. 9 of Law 9,613 of 1998 .

Section VI

The duties of the Directors

 Article 13. The Directors are responsible for:

 I - cast votes in the processes and issues submitted to the Plenary;

 II - to issue orders and make decisions in the cases in which they are rapporteurs;

 III - request the Supervisory Board for information and documents that may be of interest to the administrative sanctioning process of which it is a rapporteur, observing the legal secrecy, as well as to determine the steps that are necessary for the exercise of its functions;

 IV - to fulfill the other tasks assigned to them in the Internal Rules of Coaf; and

 V - perform other duties committed by the Plenary or the President.

Section VII

From the common attributions of the

 Art. 14. The Executive Secretary, the Director of Financial Intelligence and the Supervisory Director are jointly responsible for:

 I - to advise the President of the Coaf on matters related to their respective areas of activity;

 II - to attend the ordinary and extraordinary sessions of the Plenary;

 III - to define, plan and evaluate, together with the President, the general guidelines of Coaf's performance and verify, within the respective subordinate units, its compliance;

 IV - to define the priorities of action of the respective areas of action, according to the strategic guidelines, and to monitor the fulfillment of the goal plan by the respective subordinate units;

 V - verify compliance with the determinations of the President and the institutional mission of Coaf;

 VI - to edit operational norms related to the subjects related to their respective attributions; and

 VII - ensure, together with the President and other servants, the institutional image of Coaf.

CHAPTER IV

THE EXCHANGE OF INFORMATION

 Art. 15. The Central Bank of Brazil, the Securities Commission, the Superintendency of Private Insurance, the Federal Police Department, the Brazilian Intelligence Agency and other public bodies and entities with powers to supervise and regulate the persons treat the art. 10 and art. 11 of Law No. 9.613 of 1998 , will provide the information and collaboration necessary to fulfill the duties of the Coaf.

  • 1 The exchange of confidential information between the Coaf and the bodies mentioned in thecaput implies transfer of responsibility for the preservation of confidentiality.

 Paragraph 2. The bodies referred to in the caput shall establish mechanisms for the compatibility of their data systems in order to facilitate the exchange of electronic information.

 Art. 16. The Coaf may share information with relevant authorities of other countries and international organizations, based on reciprocity or agreements.

 Art. 17. Received the request for information regarding the criminal infractions foreseen in art. 1 of Law No. 9,613 of 1998 , from a competent authority or body of another country, the Coaf shall respond to the request or refer it, if necessary, to the competent bodies, so that appropriate measures may be taken to comply with the request.

CHAPTER V

OF THE ADMINISTRATIVE PROCESS

 Art. 18. The sanctioning administrative process constitutes a supervisory instrument and will be instituted in cases where there are verified indications of the occurrence of administrative infractions foreseen in Law No. 9,613 of 1998 , observing the principles of legality, purpose, motivation , reasonableness, proportionality, morality, ample defense, adversarial proceedings, legal certainty, public interest and efficiency, among others.

 Single paragraph. The Central Bank of Brazil, the Securities Commission, the Superintendency of Private Insurance and other public bodies or entities responsible for applying administrative penalties provided for in art. 12 of Law No. 9,613 of 1998 , shall observe their procedures and, where applicable, the provisions of these Bylaws.

 Art. 19. The Coaf may conduct preliminary inquiries, in a reserved capacity.

 Art. 20. Upon completion of the preliminary investigations, the Coaf, through the Supervisory Board, shall propose the establishment of the administrative sanctioning process or determine its closure and, in this case, submit the decision to the superior review.

 Article 21. The sanctioning administrative process shall be instituted within thirty working days, counted from the date of knowledge of the infraction, of the receipt of the communications referred to in item II of the caput of art. 11 of Law 9,613 of 1998 , or the knowledge of the conclusions of the preliminary investigations, by a reasoned act of the Director of Supervision of Coaf.

 Article 22. The accused will be summoned to present a defense within a period of fifteen days, counting from the date of receipt of the summons, and must present the evidence of his interest, being able to present new documents at any time, before the conclusion of the procedural instruction .

 Paragraph 1 - The summons shall contain the entire content of the act of initiating the administrative sanctioning process.

 Paragraph 2. The summons of the accused shall be made by post or other electronic form of communication, with notice of receipt, or, if the summons by these forms is not successful, by a notice published only once in the Official Gazette of the Union, counting the deadline referred to in the main section of the date of receipt of the subpoena or the publication of the notice, as applicable.

 Paragraph 3. The defendant may monitor the administrative process in person or by electronic means, in person or by his / her legal representative, in the event of being a legal entity, or by a legally qualified lawyer, ensuring broad access to the process.

 Art. 23. It will be considered revealed the accused who, after summons, does not present defense within the deadline referred to in art. 22, incurring in confession as to the matter of fact, against him running the other deadlines, regardless of new subpoena.

 Single paragraph. The revel can intervene in the process, at any stage, without the right to repeat the act already practiced.

 Art. 24. Once the deadline for the presentation of the defense has been reached, the authority responsible for conducting the proceedings may determine the execution of the proceedings and the production of evidence of interest in the proceeding, with the possibility of requesting new information from the accused, clarifications or documents, to be submitted within the period fixed by the requesting authority, maintaining the legal secrecy, when applicable.

 Article 25. The decision shall be rendered within sixty days, counted from the date of completion of the instruction.

 Article 26. The Coaf and the public bodies and entities responsible for applying the administrative penalties provided for in Law No. 9,613 of 1998 will monitor compliance with its decisions.

  • 1 In case of non-compliance with the decision, in whole or in part, the fact shall be communicated to the competent authority, which shall determine measures for judicial enforcement.

 Paragraph 2 - The Coaf shall be represented by the Union Attorney.

 Article 27. Decisions of the Coaf Plenary shall be appealed to the Appeals Council of the National Financial System.

 Art. 28 Act of the Minister of State for Justice and Public Security shall provide for the supplementary rules for the regulation of administrative sanctioning in Coaf, in compliance with the provisions of Law No. 9.613 of 1998 .

CHAPTER VI

FINAL AND TRANSITIONAL PROVISIONS

 Article 29. The expenses with the operation of the Coaf will be at the expense of the Ministry of Justice and Public Security.

 Art. 30. The Advocate-General of the Union shall appoint a member of the Union's Advocacy General, who shall act jointly with the Coaf.

 Art. 31. The organization and functioning of the Coaf, the competencies of the units and the attributions of the leaders shall be established in Internal Rules, approved by an act of the Minister of State for Justice and Public Security.

https://lawprofessors.typepad.com/intfinlaw/2019/03/new-brazil-president-gives-independence-to-anti-corruption-agency-.html

AML | Permalink

Comments

Post a comment