(Image: Rosinei Coutinho/SCO/STF)

In a judgment held this Wednesday (08/31), the STF declared unconstitutional the provision of Law 14,230/21, which amended the Administrative Improbity Law, granting the Public Prosecutor’s Office exclusive power to file improbity actions and enter into civil non-prosecution agreements.

In yesterday’s judgment, 08/31, the Plenary held that the interested legal entity also has standing to bring an administrative improbity action. In addition, it was established that the Public Administration is not required, but may choose, to defend the public official involved in improbity actions for acts performed in the exercise of their duties.

The Court, by majority, partially upheld the claims made in the direct action in order to:

(a) declare the partial unconstitutionality, without reduction of text, of the caput and §§ 6-A and 10-C of art. 17, as well as the caput and §§ 5 and 7 of art. 17-B, of Law 8,429/1992, as worded by Law 14,230/2021, so as to restore concurrent and disjunctive standing between the Public Prosecutor’s Office and interested legal entities to bring actions for acts of administrative improbity and to enter into civil non-prosecution agreements;

(b) declare the partial unconstitutionality, with reduction of text, of § 20 of art. 17 of Law 8,429/1992, added by Law 14,230/2021, in the sense that there is no “mandatory judicial defense”; there is, however, the possibility for Public Attorney bodies to authorize such judicial representation by the legal advisory office that issued the opinion attesting to the prior legality

The case
The judgment took place in Direct Action of Unconstitutionality (ADI) No. 7042, filed by the National Association of State and Federal District Attorneys (ANAPE), seeking a declaration that art. 2 of Law 14,230/2021 is unconstitutional, as it amended art. 17 of the Administrative Improbity Law to provide that actions may only be brought by the Public Prosecutor’s Office, removing from public entities the right to bring the action as well as the possibility of entering into civil non-prosecution agreements, arguing that this legislative change resulted in unconstitutional provisions.

In February this year, Justice Alexandre de Moraes had granted an injunction suspending the effects of some of the law’s provisions until the case was judged by the Plenary (that is, by all the justices).