STF ruled that the new LIA may apply retroactively to benefit the defendant in some cases
In the end, it was decided that proof of intent is required to classify administrative improbity; that the more favorable rule does not apply retroactively, except in actions concerning negligent acts that are still pending; and that the limitation periods provided for in Law 14,230/2021 are not retroactive.
ConJur consulted improbity specialists to understand the effects of the Supreme Court’s decision. The conclusion: the outcome of the judgment should ensure greater legal certainty for civil servants, administrators and those who enter into contracts with the State. And it should put an end to the “pen blackout” seen in the country in recent years, with heads of the Executive avoiding important decisions for fear of being convicted in a negligence-based improbity action.
According to Camillo Giamundo, a Public Law specialist and scholar of administrative improbity, retroactivity for pending cases was expected and will make administrators more confident in making decisions.
“If the law changes and holds that the negligence-based modality is no longer punishable, it would not be fair for those facing proceedings still under way to be convicted for a situation that our legal system no longer considers administrative improbity. It is about safeguarding and valuing legal certainty not only for administrators, but also for companies facing proceedings of this kind”, he said.
Isabela Pompilio, a litigation specialist and partner at Tozzini Freire Advogados, takes the same view. For her, the elimination of the negligence-based modality of administrative improbity will remove the insecurity administrators felt in performing certain public acts, “since, under the previous law, even if the act under review by the Judiciary was merely irregular conduct, it gave rise to great fear of a possible conviction for an alleged act of improbity”.
The STF’s decision should also reduce the number of improbity actions lacking proper evidence. This is the view of Juliana Litaiff, an associate in the dispute resolution practice at Piquet, Magaldi e Guedes Advogados. According to her, the elimination of the negligence-based modality was “a necessary response to the countless pending actions whose charges stemmed from mere errors committed by public officials, often set out generically in the complaint, which could be dealt with in less costly recourse actions”. Thus, in the attorney’s opinion, the prosecuting body will be required to provide solid grounds justifying the inclusion of the individual in the improbity action.
Although it should lead to a drop in the number of actions against public officials who may have harmed the public treasury, the STF justices’ decision does not amount to a safe-conduct, according to criminal attorney Bernardo Fenelon.
“It must be clarified that the elimination of the negligence-based modality of administrative improbity and the possibility of retroactive application of the new law do not favor impunity, since such acts remain punishable in other spheres, such as the civil sphere, in actions for reimbursement to the public treasury, as well as in the administrative sphere, in disciplinary administrative proceedings for public officials”.
Incentive for companies
Another possible consequence of the decision taken by the STF on Thursday is a boost to the Public Administration’s coffers. After all, with greater legal certainty, companies will have an incentive to enter into contracts with the government.
“Now private parties contracting with the Public Administration have greater predictability as to the consequences of their acts when taking part in tender procedures, dealing with public officials and providing services or buying and selling goods to the public entity. In the medium term, it may bring greater comfort to companies that previously did not take part in tenders, potentially resulting in greater competitiveness among bidders”, said Maysa Abrahão Tavares Verzola, partner in the Litigation, Arbitration and Public Law practice at Gasparini, Nogueira de Lima e Barbosa Advogados.
However, although actions for negligence-based improbity should be dismissed, there are cases in which the proceedings were filed without indicating whether the modality was negligent or intentional. In these situations, according to criminal law specialist and Finocchio & Ustra Advogados partner Guilherme Cremonesi, there is room to charge the defendant with intentional improbity.
“As the reporting justice, Justice Alexandre de Moraes, stated, each case must be analyzed individually and, where the Public Prosecutor’s Office did not specify in the improbity complaint whether the conduct was negligent or intentional, since this was not previously required, the conduct described must be analyzed. In this case, we believe this should be an interpretation made by the judge, and the Public Prosecutor’s Office may not amend the improbity complaint, at the risk of opening the door to a possible attempt to circumvent the new law in order to allege intent”.
News originally published on Consultor Jurídico (in Portuguese), on 08.19.2022, by Karen Couto.
