The Misconduct Law in the STF and the “uncertain past”

In October 2021, the changes approved by the National Congress to the Administrative Improbity Law came into effect. They were part of the “legislative package” of deconstruction of the Car wash and his legacy, with the passing of laws that made good fight against corruption or that they were more lenient with bad managers. The changes, in this case, fulfilled both purposes, as they greatly reduced the possibilities of accountability of managers for improbity, and also changed statute of limitations.

At the time, the People’s Gazette recalled that the previous law was not entirely adequate, as it was too open and allowed the ideologized wings of the Public Ministry to accuse managers of improbity, more for disagreeing with specific policies than for finding any signs of irregularity in them. This led to the so-called “pen blackout”, in which the administrator would rather do nothing than risk a charge of impropriety for something he had done. This was a problem that needed to be tackled, but that was not what happened: instead, it was decided to restrict liability only to cases where intent was proven. This choice left unpunished even cases in which the irregularity, although unintentional, resulted from evident negligence, imprudence or malpractice, situations in which common sense would demand accountability, albeit with lighter punishments compared to situations of intentional improbity. In summary, the new law was not made to help good managers to know better the limits of their performance and to act more freely and without fear, but to help bad managers get away with it.

If the STF decides for the retroactivity of the new rules, the consequences would be disastrous not only because of the number of cases affected, but because of what this would mean in terms of respect for honesty in the public administration.

This help, now, can be valid not only for future cases of improbity. In a repetition of the phrase attributed to former minister Pedro Malan, according to which “in Brazil even the past is uncertain”, the Federal Supreme Court can make changes to the Misconduct Law retroactive, in a trial scheduled to begin this Wednesday, the 3rd. The specific case in question is that of a lawyer hired by the INSS in the 1990s, and whose negligence led the agency to miss deadlines in cases that totaled almost R$ 400 thousand . The Justice, in condemning her, considered that there was no intent – ​​which, according to the new legislation, would rule out the possibility of liability for improbity; In this case, there is still a discussion about the statute of limitations, as they would also have been favorable to the lawyer if the current rule had been in effect at the time.

like the STF decided by the general repercussion of the case, what the court decides in the case of the lawyer will be applied in all other cases of past convictions for improbity without proof of intent or in which there was a statute of limitations by the new law, which occurs eight years after the fact considered unprofessional – until 2021, the statute of limitations took place five years after the fact was discovered. Official data obtained by the report of the People’s Gazette show that there are about 700 cases under analysis that would suffer the effects of a decision in favor of the retroactivity of the new law – not to mention all the other convictions that have already become final and that would be subject to reversal. The consequences would be disastrous not only because of the number of lawsuits, but because of what this would mean in terms of respect for honesty in public administration.

As experts heard by the Gazette, retroactivity when new legislation is more beneficial to the defendant than the previous law is not absurd in itself, but it is a principle of criminal law, not administrative law, where improbity cases fit. In the words of attorney Roberto Livianu, “the law in force at the time is the one that governs the act. What was the law that was in effect at the time? Law 8.429/1992. Ended”. The State was not silent, it sought to hold managers accountable within the deadlines provided for in the law, for acts duly classified as impolite according to the rule then in force. The undoing of all this work by a stroke of the Judiciary would be the potentialization of the setback already approved by parliamentarians, a bucket of ice water for Brazilians who already took for granted a scenario of future impunity and, as if that were not enough, they will still have to witness “past impunity”.

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