The amendment to the Improbity Law removed the standing of injured public entities to bring the action and gave exclusive standing to the Public Prosecutor’s Office
STF Justice Alexandre de Moraes granted an injunction this Thursday (02/17) in Direct Action of Unconstitutionality (ADI) No. 7042, filed by the National Association of State and Federal District Attorneys (ANAPE), suspending the effects of some provisions of the Administrative Improbity Law (Law 8,429/92), recently amended by Law 14,230/2021.
In the ADI, ANAPE seeks 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.
The Association also asks that the provision of art. 3 of Law 14,230/21 be declared unconstitutional, which gives the competent Public Prosecutor’s Office 1 (one) year from the date of publication of the law to express interest in continuing pending administrative improbity actions filed by the Public Treasury, including on appeal.
Finally, ANAPE seeks a declaration that art. 17, §20 of the Improbity Law is unconstitutional, which provides that the “legal advisory office that issued an opinion attesting to the prior legality of the administrative acts performed by the public administrator shall be required to defend them in court, should they face an administrative improbity action, until the decision becomes final”, since it would not be for federal law to provide for the powers of State and Federal District Attorney’s Offices.
The ADI was assigned to Justice Alexandre de Moraes who, this Thursday, 02/17, partially granted the injunction sought by ANAPE, ordering that (a) art. 17, caput, and its paragraphs 6-A, 10-C and 4 be given an interpretation in conformity with the Federal Constitution, so as to declare that the Public Prosecutor’s Office and interested legal entities have concurrent standing to bring actions for acts of administrative improbity; (b) the effects of art. 17, §20 of the Improbity Law, which ties the judicial defense of the administrative act to the public officials who issued an opinion attesting to its legality, be suspended; and (c) art. 3 of Law 14,230/21, which granted 1 (one) year from the date of publication of the law for the competent Public Prosecutor’s Office to express interest in continuing pending administrative improbity actions filed by the Public Treasury, including on appeal, be suspended.
The decision issued by Justice Alexandre de Moraes will be submitted for confirmation by the STF Plenary (i.e., it will depend on a majority vote) and, if upheld, will affect all improbity actions whose discussion relates to the subject of the ADI filed by ANAPE, specifically regarding the standing of public entities to bring administrative improbity actions.
General Repercussion
In early February this year, Justice Alexandre de Moraes proposed recognizing the general repercussion of a constitutional matter involving the amendments to the Administrative Improbity Law regarding the (non-)retroactivity of the amended provisions, especially regarding the need to establish “intent” in the administrative act, as well as the application of the new general (8 years) and intercurrent (4 years) limitation periods.
The matter is STF Theme 1199, and awaits the votes of all the other justices on the recognition of its general repercussion.
