Understand in 4 points what the STF has already decided on the Improbity Law

The STF (Supreme Federal Court) has already defined most of the points questioned in the reform of the Administrative Improbity Law. The trial brings together actions presented by public service entities and the Public Ministry against changes approved by the National Congress in 2021.

The analysis has not yet been completed. The plenary is expected to resume the debate next Wednesday (1st) to examine the last pending point: the new rules on limitation periods.

Among the points already decided, the Court confirmed that punishment for administrative improbity requires proof of intent, that is, the intention to carry out the illicit conduct. As a result, the possibility of punishment for a negligent act, when there is no intention, but negligence, imprudence or incompetence, was ruled out.

The Supreme Court also validated the change that made the list of conduct considered acts of improbity exhaustive. In practice, this means that only situations expressly provided for by law can be classified as misconduct.

On the other hand, the ministers overturned sections of the reform that, according to the majority, excessively restricted the scope of punishments and the actions of judges and members of the Public Ministry.

Below, see the main points already decided by the Court:

Independence of instances and criminal acquittal
In the most recent decision, the STF limited the cases in which a criminal acquittal can prevent the progress of an administrative improbity action.

The plenary defined that the action of improbity should only be barred when there is a definitive criminal decision expressly recognizing one of these situations:

- that the fact did not exist;
- that the accused was not the author of the conduct;
- that there was a cause that makes the act lawful, such as self-defense or strict compliance with legal duty.

As a result, acquittals due to lack of evidence or filings due to the absence of minimum elements for a complaint do not, in themselves, prevent the continuation of the misconduct action.

According to the winning understanding, the restriction preserves autonomy between the criminal, civil and administrative spheres.

Requirement of intent and strict list
The STF unanimously reaffirmed the end of so-called culpable improbity. Therefore, conviction for administrative improbity requires proof of intent, that is, the intention to carry out illegal conduct.

In practice, errors committed unintentionally, due to negligence, imprudence or incompetence, can no longer be punished based on the Administrative Improbity Law.

The Court also validated the creation of a comprehensive list of acts that violate principles of public administration. This means that a public agent can only be punished for this type of misconduct when the conduct is expressly provided for by law.

The ministers also maintained the rule that protects managers in cases of reasonable divergence in the interpretation of the law, as long as there is no intent or gross error.

Extension and application of sanctions
The STF overturned two limitations included by Congress in the reform of the Administrative Improbity Law. For most ministers, these sections excessively restricted the scope of punishments.

- Loss of public service: The law approved by Congress provided that the loss of public service would only affect the link that the agent maintained with public authorities at the time of the irregularity. The Supreme Court removed this limitation in cases of illicit enrichment and damage to the treasury. As a result, the loss of public service may affect the convicted person's other public ties, depending on the circumstances of the case and the severity of the conduct.
- Prohibition of contracting with public authorities: The STF also invalidated the section that allowed limiting the prohibition of contracting only to the public body or entity directly harmed by the act of improbity. In practice, when this penalty is applied, the convicted person or company may be prevented from contracting with the entire public administration, including the Union, states and municipalities.

Liability of third parties and political parties
The STF also defined when people linked to private companies can be held liable for acts of administrative improbity.

According to the Court's understanding, partners, shareholders and directors may be held liable when there is intentional participation in the irregularity and obtaining a direct or indirect benefit.

The ministers also decided that the existence of specific rules to punish political parties does not prevent the application of the Administrative Improbity Law.

In practice, parties and party foundations can also be held liable for misconduct when there is irregular use of public resources, such as party and electoral funds.

Understand
The changes promoted in the reform of the Administrative Improbity Law, in 2021, were once again analyzed by the STF in four processes that question different points of the legislation.

The actions are being reported by ministers Alexandre de Moraes, André Mendonça and Dias Toffoli and were presented by entities such as the OAB (Brazilian Bar Association), Conamp (National Association of Members of the Public Ministry), the Public Ministry of São Paulo and the PSB.

An act of administrative improbity, by definition, is any illegal action that goes against the basic principles of Public Administration in Brazil, in which, demonstrably, the public agent acts with improbity, that is, bad faith or dishonesty.

In force since 1992, the Administrative Improbity Law was amended by Congress in 2021. One of the main changes in the text is the requirement of intent on the part of public agents, that is, the intention to commit a crime of improbity. In practice, it is necessary to prove the free and conscious will to carry out an illicit act, different from what the previous text provided.

STF returns to judge law on Administrative Improbity of convicted civil servants | CNN 360º

Source: CNN