ILLICIT ENRICHMENT IN PUBLIC ADMINISTRATION AND THE PROPOSAL FOR ITS CRIMINALIZATION IN BRAZIL: AN ANALYSIS IN LIGHT OF INTERNATIONAL ANTI-CORRUPTION CONVENTIONS

Abstract

This article analyzes the legal and constitutional viability of criminalizing the illicit enrichment of public officials in Brazil, in light of the 1988 Federal Constitution, international anti-corruption conventions, national legislation, doctrine, and comparative law. The research problem consists of verifying whether it is possible to create an autonomous criminal offense to punish the incompatible asset growth of a public official, without violating the presumption of innocence, the burden of proof on the prosecution, and the prohibition against self-incrimination. The general objective is to examine the constitutional compatibility of this proposed criminalization. Specific objectives include defining illicit enrichment in public administration, analyzing its current treatment in domestic legislation, examining the international commitments undertaken by Brazil, comparing foreign experiences, evaluating the extended forfeiture provided for in Article 91-A of the Penal Code, and studying Brazilian legislative proposals, especially Bill No. 557/2021. The hypothesis presented is that the absence of an autonomous criminal offense reduces the effectiveness of the fight against corruption, but that criminalization is only legitimate if constructed with restrictive legislative technique and respect for fundamental guarantees. To this end, qualitative, bibliographic, documentary, and comparative legal research is adopted. It is concluded that the criminalization of illicit enrichment is legally viable in Brazil, provided that the criminal offense is formulated in a restrictive, rights-guaranteeing manner and is compatible with the Constitution.