by Daniel Stein

One of the guiding principles of administrative proceedings is the principle of officiality. By virtue of this principle, once proceedings have begun, the authority competent to decide has a duty to conduct them through to a decision, regardless of whether they were initiated at the request of a private party or by the administration itself.

Not for nothing, Law 9,784 of January 29, 1999 provides, in its articles 48 and 49, for the duty to issue an explicit decision and the deadline for issuing a decision (once the fact-finding phase is complete), respectively. The recognition of a state of public calamity does not in itself imply the immediate suspension of administrative proceedings, since there is a public interest in the relevant decision, independent of the interested party itself.

In this regard, it is worth mentioning § 5 of art. 3 of Decree No. 10,282 of March 20, 2020, which provides that public bodies will maintain mechanisms enabling decisions to be made. It is worth noting that this provision is part of a federal regulation on the list of essential services and activities.

Although each public body may provide for limitations on its operations to adapt to the extraordinary situation we are experiencing, this does not mean or imply a failure to fulfill the duty to decide.

Thus, if it is not possible to carry out certain fact-finding activities, or even activities that should support decision-making, the administration has a duty to adopt measures that preserve the individual’s rights so that the failure to decide does not harm them or worsen their situation in the context that gave rise to the administrative proceedings in question, by granting interim measures or even bringing forward certain effects, to the extent they are demonstrably undisputed.

Article originally published in Jornal do Comércio (RS) (in Portuguese), on 04/14/2020.