A flexibilização de conceitos dogmáticos-penais quanto ao delito de corrupção passiva e a criminalização da atividade política: uma relação de causa e efeito

Abstract

The main objective of this paper was to analyze the relationship between (i) the latest judicial treatment that is currently being given to the interpretation of bribery (ii) and the worldwide-known phenomenon designated as “criminalization of politics”. Using a bibliographic and documental methodology (consisting, mostly, on the analysis of judicial acts, other legal documents and doctrine), through a qualitative approach, we went through the historical evolution of the crime up until the state of the art, from which it was concluded that progressively the crime of corruption had its incidence scope expanded — due, among other reasons, to judicial agencies not being inclined to verify the practice or negotiation of an “official act” for its configuration. It was pointed out, sequentially, that such jurisprudential and doctrinal action, contrary to traditional normative parameters, has the potential to put at risk activities common to the exercise of politics, since they are inserted in permitted areas of action, linked to the very existence of the Democratic Rule of Law. Through examples taken from other jurisdictions — such as the United States and Germany — it was demonstrated how other countries adopt a certain amount of caution to avoid peculiarities and undesirable results of such nature in the fight against political corruption, results that end in the massive criminalization of conduct that, in the words of the U.S. Supreme Court, “would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties”. Corollary, if the classical guidelines for the interpretation of corruption in the criminal sphere are not observed — i.e. traditionally considered as a quid pro quo —, the outcome is inevitable: the aforementioned “criminalization of politics” and the labeling of the State and its politicians as inseparable elements of white-collar crime, resulting in the undesirable discredit of both