By Giuseppe Giamundo Neto and Fernanda Leoni

Often technical in nature, oversight proceedings conducted by the courts of accounts are marked by their own language, which involves not only the legal or regulatory debate on public action, but also accounting, financial, budgetary and engineering aspects that go beyond mere legal subsumption. As a result, the evidence produced in these proceedings is not a matter of simple regulatory compliance, but of effectively demonstrating elements that involve different areas of scientific knowledge.

In this sense, the contours of the evidence produced in proceedings conducted by the courts of accounts — understood here as ranging from audits of acts and contracts to management accounts — are diverse and often go beyond documentary evidence, requiring specialized knowledge of certain technical subjects. This reality is especially present in audits of engineering contracts, which frequently involve both specific knowledge of cost engineering and the application of price references, and of civil engineering, regarding the adequacy of the cost to the activity being priced.

In many cases, therefore, there is a need to produce technical evidence which, in some situations, ends up resembling expert evidence, since it involves technical knowledge in a given area/subject, a detailed analysis of equally technical elements and an impartial third party responsible for this assessment. In technical terms, such evidence would counter the assessments carried out by the oversight units of the courts of accounts, which are generally highly specialized in the subjects they cover and which, for that very reason, use language that is not always understandable to public managers and other parties under their jurisdiction.

In this context, the production of technical documents and qualified debate among professionals with the same scientific knowledge end up creating a scenario in which technical evidence — or expert evidence, if one prefers — is directly connected to the very right to adversarial proceedings and a full defense. The legal debate, as mentioned, ends up being secondary and is certainly disregarded if dissociated from technical elements supporting the allegations.

Despite the relevance of this subject, few courts of accounts expressly allow, in their rules, the production of technical evidence, especially expert evidence, understood as evidence involving an impartial third party giving a technical opinion on a given matter. On the contrary, the prevailing view is that oversight proceedings do not provide for this type of evidence [1].

Note that, although we are not aware of any prohibition or refusal by the courts of accounts to receive technical evidence in documentary form — which, in any case, would be covered by the general due process clause — this type of evidence will not necessarily capture the complexity needed to clarify the matter under debate. In truth, this is the central issue. There is no effective debate, and technical reports are received as an additional documentary element, without the same weight as an expert report.

Furthermore, the regulation of the subject within the courts of accounts — quite limited, as mentioned — is more than a mere detail, since it gives the party the certainty to exercise this prerogative effectively and without limitations. Currently, however, only five courts of accounts have any specific provision on the subject [2], with special emphasis on the Court of Accounts of the Municipalities of Pará [3] and the Court of Accounts of the Municipality of São Paulo [4], which have more comprehensive rules on the subject, and the Court of Accounts of the Municipality of Rio de Janeiro [5], which authorizes the subsidiary application of the Code of Civil Procedure.

Indeed, the lack of adequate regulatory provision, or the rejection of this type of evidence on the pretext that it is unnecessary, ends up leading to unnecessary litigation [6]. On this subject, the Federal Supreme Court has an important precedent in a writ of mandamus filed against a decision of the Federal Court of Accounts, in which it held that expert evidence duly requested by the party, with grounds, cannot be denied, as it is a constitutional defense mechanism [7].

On the other hand, accepting expert evidence makes the decision safer and more accurate for the oversight body itself, guarantees a full defense to the party under its jurisdiction and, above all, enables a more qualified dialogue, allowing the party or responsible person to also counter the technical arguments and elements produced by the courts of accounts with their undeniable expertise. Not even the possible drawback of reduced speed would be a relevant argument against this type of evidence, since technical complexity is already inherent to oversight proceedings.

Finally, enabling this type of evidence, even for courts that have not expressly provided for it, may be based on the subsidiary or supplementary application of the provisions of the Code of Civil Procedure, as the procedural code itself authorizes [8], adapting judicial procedures to the particularities of oversight proceedings, as has already been done with several other institutions of this nature[9], with no procedural obstacles, as noted, that would actually prevent this expansion of the evidentiary phase before the courts of accounts.

NOTES

[1] In this regard, see the statement published by the Federal Court of Accounts: “External oversight proceedings, governed by Law 8,443/1992 and the TCU Internal Rules, do not provide for the production of expert evidence, and it is up to the responsible party to submit to the case file the elements it deems necessary for its defense, including expert reports, which does not require authorization from the Court” (TCU. Judgment No. 5,040/2022 – 2nd Chamber, Reporting Justice Bruno Dantas, Session of 09/06/2022).

[2] These are the provisions of the internal rules of TCE-AL (art. 129, III), TCE-PA (art. 77), TCM-PA (art. 454), TCM-RJ (art. 138) and TCM-SP (art. 124).

[3] See: “Art. 454. (…) § 1. At the request of the responsible party, the Public Prosecutor’s Office before the Court of Accounts of the Municipalities of the State of Pará or an interested third party, or on the Reporting Member’s proposal, considering the complexity of the matter or the specificity of the evidence to be produced or assessed, a specialized technical or scientific expert examination shall be carried out. § 2 In any of the cases set forth in § 1 of this article, the Full Court shall be responsible for authorizing the expert examination. § 3 In assessing the request for expert evidence, the following must necessarily be considered: whether it is essential for establishing the facts; the complexity and specificity of the matter; and the absence of qualified technical staff within the TCMPA to assess and/or produce the evidence. § 4 Within the TCMPA, regarding the request and other expert procedures, when granted by the Full Court, the rules set forth in articles 464 to 480 of the Brazilian Code of Civil Procedure shall apply, except as to costs and expert fees. § 5 Costs and expert fees shall be borne by the requesting party, which shall be required to pay them within a maximum of 10 (ten) days, failing which the request for evidence shall be deemed tacitly withdrawn”.

[4] See: “Art. 124 – At the discretion of the Reporting Member or Single Judge, all elements necessary for judging the cases shall form part of the procedural record, namely: I – the documentation referred to in article 2, § 1, of these Rules; II – personal inspection carried out by the Member or by an employee specially designated by them; III – data and reports from audits, monitoring, inspections and analyses; IV – opinions of the Court’s technical bodies; V – personal testimony of the parties; VI – hearing of witnesses; VII – submission of documents; VIII – production of a document or material evidence; IX – expert report; X – all other evidence admitted by law”.

[5] See: “Art. 138. Evidence that the party wishes to produce before the Court should preferably be submitted in documentary form, including personal statements of third parties. § 1 When the party requests inquiries and expert examinations, the provisions of the Code of Civil Procedure shall apply, as appropriate. § 2 Evidence proposed by the party may only be refused by the Court, by means of a reasoned decision, when it is unlawful, irrelevant, unnecessary or dilatory”.

[6] In this regard, see the decision of the Federal Regional Court of the 5th Region (TRF5) questioning the limitation on expert evidence at the TCU: “Furthermore, analyzing Special Accounts Review No. 021.409/2003-4, it can be seen that the plaintiff repeatedly requested a technical expert examination by a professional specialized in ports, as determined by the TCU itself in Judgment No. 1051/2003-Plenary, and its requests were summarily denied on the simplistic argument that SECEX/RN’s technical staff had sufficient know-how to analyze the issue, so it is crystal clear that the defendant curtailed the right of defense” (TRF5. Appeal No. 0810399-40.2016.4.05.8400. Reporting Federal Judge Leonardo Carvalho. Decided on 05/22/2020).

[7] This is Writ of Mandamus No. 26,358, with Justice Celso de Mello as reporting justice.

[8] See: “Art. 15. In the absence of rules governing electoral, labor or administrative proceedings, the provisions of this Code shall apply to them on a supplementary and subsidiary basis”.

[9] This is the case, for example, of borrowed evidence, provided for in art. 375 of the CPC, and commonly used in TCU proceedings.

Article published on Consultor Jurídico (in Portuguese).