Camillo Giamundo
Law 14,230/21 requires proof of actual loss in administrative misconduct cases, strengthening justice and the defense of rights.
The amendment introduced by Law 14,230/21 brought significant innovations to the legal regime of administrative misconduct in Brazil, changing several aspects of Law 8,429/92, known as the LIA – Administrative Misconduct Law.
One of the central points of this reform was the introduction of the requirement of proof of actual loss to the public treasury to establish the acts of misconduct provided for in art. 10 of the LIA. This change contrasts with the previous wording of the law, which, although it did not expressly require proof of damage, allowed convictions based on so-called “presumed damage”. This presumption allowed, in certain cases, sanctions to be applied even without concrete proof that the public coffers had actually been harmed.
Before the legislative reform, the STJ held a consolidated understanding that loss to the public treasury could be presumed, allowing public officials and private parties to be convicted without direct proof of damage. This understanding was very common in cases involving tenders, administrative contracts and, mainly, actions based on art. 10 of the Administrative Misconduct Law, which deals with acts that cause harm to the public treasury. Thus, even if the contracted service or good had been properly delivered or performed, the mere fact that the contracting process violated legal requirements could already constitute an act of misconduct, leading to the conviction of those responsible.
However, with the enactment of Law 14,230/21, a new interpretation of this situation was adopted. The new wording of art. 10 of the LIA now expressly requires that the harm to the public treasury be actual and proven; that is, a mere formal violation of legality without concrete proof of loss to the public coffers is no longer sufficient to establish an act of administrative misconduct. This new requirement, introduced by the reform, brought an important and stricter approach to the need for proof of damage, raising the evidentiary standard for convictions in this type of action.
This change was recently consolidated by the 1st Panel of the STJ in the judgment of Appeal 1,929,685 – TO. In this judgment, the STJ reinforced that, even in cases dealing with facts that occurred before Law 14,230/21 came into force but which are still pending, the requirement of proof of actual loss must be observed. Justice Gurgel de Faria, the reporting justice, stressed that, with the new wording of article 10, the legislator expressly ruled out convictions based on presumed damage, requiring conclusive proof of harm to the public treasury to establish the wrongful act.
In the specific case decided by the STJ, the Tocantins Public Prosecutor’s Office had filed an administrative misconduct action against two public officials and a company for direct contracting without a tender for the “Agenda Tocantins” project, worth BRL 2.2 million. At first instance, the defendants were convicted based on the previous understanding that damage to the public treasury was presumed in cases of irregular contracting. However, the Tocantins Court of Appeals reversed the decision, setting aside the conviction for lack of proof of actual loss. When analyzing the appeal, the STJ upheld the TJTO’s decision, stating that, under the new wording of the LIA, it is no longer possible to convict for misconduct without concrete proof of damage.
This new interpretation by the STJ is fully in line with the spirit of Law 14,230/21, which seeks to improve legal certainty in administrative misconduct actions, avoiding convictions based on presumptions and ensuring that sanctions are applied only in situations where damage to the public treasury is proven.
This change represents progress in the treatment of misconduct actions, since it rules out decisions based on conjecture or on broad and generic interpretations of the law, requiring a more in-depth analysis of the facts and evidence.
The requirement of proof of actual loss not only reinforces the need for more cautious action by prosecuting bodies, but also protects public officials and private parties from unfair convictions based on presumptions that do not always reflect the facts. The legislative change and the alignment of STJ case law require legal practitioners to act even more rigorously in investigating, gathering evidence and analyzing cases, in pursuit of the real truth.
The new legislative direction, strengthened by the STJ’s position, deserves praise, since the administrative misconduct action is a very important instrument for protecting public assets and administrative morality and, given its seriousness and the severe sanctions that may be imposed, it is essential that it be used with responsibility and a commitment to justice.
The requirement of proof of actual damage prevents public officials or private parties from being unfairly penalized on the basis of mere presumptions, protecting their honor, image and fundamental rights.
In addition, by establishing a stricter criterion for misconduct convictions, Law 14,230/21 contributes to strengthening due process and the right to a full defense, essential principles in any democratic State governed by the rule of law. Justice cannot be based on conjecture, but on concrete and robust evidence. By requiring proof of actual loss, the legislative reform raises misconduct actions to a level of greater seriousness and responsibility, ensuring that convictions are fair and proportionate to the damage actually caused to the public treasury.
It is therefore clear that the legislative change brought by Law 14,230/21 and the recent alignment of the STJ’s understanding are important steps in improving the Brazilian legal system. Administrative misconduct is an issue that directly affects society’s trust in public institutions and in the fight against corruption and misuse of public assets, and it is therefore essential that actions on this subject be conducted seriously and responsibly.
Originally published by Migalhas (in Portuguese).
