Anyone who uses public assets, money and funds has a duty to render accounts. This obligation derives from the Federal Constitution (art. 70, sole paragraph). Decree-Law 200/1967 likewise establishes the duty of those using public money to justify its proper and regular use (art. 93). Similarly, Law 8,666/93 provides that those responsible for contracts and other instruments governed by the law must demonstrate to the Court of Accounts the legality and regularity of the expenditure and its execution (art. 113, caput).
These provisions show that in Court of Accounts administrative proceedings dealing with ordinary accounts rendering or accounts review, the responsible party must prove the proper use of the funds used. Ordinary accounts review involves the authorizing officer submitting their accounts to the Court at the end of the fiscal year (arts. 81 and 81 of Decree-Law 200/67 and art. 7 of the TCU Organic Law). In such proceedings, the Court of Accounts plays a passive role, as it examines the documents and information provided by the public manager.
It is therefore a logical consequence that, in such circumstances, the burden of proving the regularity of the use of public funds falls on the authorizing officer, since they are familiar with the particularities and factual aspects of the specific situation
Thus, in ordinary accounts rendering or review proceedings, the reversal of the burden of proof generally prevails, since the responsible party bears the burden of proving the regularity of the use of the public funds under their management. If they fail to do so, the irregularity identified by the audit is confirmed, with the appropriate consequences (initiation of a special accounts review, order to repay, fine, etc.).
In oversight proceedings, on the other hand — which include audits, representations, complaints, surveys, inspections, follow-ups and monitoring — it is first up to the Court of Accounts, through its technical staff, to demonstrate the irregularities identified in the audit by means of evidence and facts supporting its conclusion.
The responsible and interested parties, in turn, must demonstrate the facts that prevent, modify or extinguish the State’s right to obtain reimbursement or to punish on the basis of the findings made by the Court’s technical unit in its audit. There is therefore a burden of proof on both the technical team conducting the fact-finding and the responsible or interested party.
The allocation of the burden of proof in oversight proceedings seems to us similar to the classic general rule in civil procedure applying to plaintiff and defendant, under which the former must prove the facts constituting its right and the latter the existence of facts preventing, modifying or extinguishing the plaintiff’s right. This is what has come to be called the fixed or static allocation of the burden of proof, since the law states from the outset, a priori and in the abstract, who must prove the facts in dispute.
However, the 2015 Code of Civil Procedure, in addition to adopting the static theory of the burden of proof, innovated by also enshrining the dynamic theory of the burden of proof1. This means, under its art. 373, §§1 and 2, that the judge may reverse the traditional obligation to produce evidence, either by force of law or in view of particularities of the case relating to the impossibility or excessive difficulty of meeting the burden.
The rule allows the judge, based on an analysis of the specific case, to assess who is in the best position to produce the evidence, allocating the respective burden between the parties differently from what the law provides. The judge must consider the extreme difficulty or impossibility that the party originally bearing the burden would have in proving a given fact, or the greater ease with which one of the parties can prove the same fact2.
In light of this provision, the possibility arises for the Court of Accounts, with the necessary adaptations3, to reallocate the burden of proof in cases where, due to their particularities, it is impossible or very difficult to prove the proper and regular use of public funds. Whenever the substantive and procedural conditions are present, the Court of Accounts may (and, in the interest of a fair process, must4) make the burden of proof dynamic, in order to adequately protect the interests at stake.
Applying a dynamic burden of proof presupposes that its conditions are met. In other words, the Court of Accounts must first establish that applying the prevailing rule on the obligation to produce certain evidence is inappropriate. If the rule states that, in oversight proceedings, the responsible or interested party must prove facts that rebut the allegation of an irregular act made by the Court’s technical staff, it may only be set aside in situations in which that burden is not reasonable.
The specific case may often not fit the general rule on the burden of proof. Due to its specific features, or because it is an abnormal situation, the case does not match the rationale behind the rule. In these cases, the principle of reasonableness calls for the rule not to be applied.
In this regard, art. 373, §1 of the 2015 Code of Civil Procedure established parameters to be considered for making an exception to the general rule, that is, for changing the allocation of the burden of proof when the rule is not reasonable. There are four cases: (i) cases provided for by law; (ii) particularities of the case relating to the impossibility of the party meeting the burden; (iii) particularities of the case relating to the excessive difficulty of meeting the burden; and (iv) particularities of the case relating to the greater ease of obtaining proof of the contrary fact. In all cases the decision must be reasoned.
Note that the Court of Accounts has already applied article 373 of the 2015 Code of Civil Procedure. The case involved alleged overpricing found in a public work, already at the special accounts review stage. The responsible parties were called upon to respond to the irregularities found only thirteen years after the events, which made it difficult to provide evidence that the contracted prices were economical. For this reason, when considering an appeal filed by the responsible parties against the decision on the merits that had ordered them to repay, the Court found that there were serious doubts as to whether or not prices above market had been charged, and that it was not possible to ensure the accuracy of the damage attributed to the responsible parties.
Also considering the difficulty in exercising the rights to adversarial proceedings and full defense due to the time elapsed since the events, the Plenary of the Court of Accounts decided to close the case for lack of the prerequisites for the valid and regular establishment and development of the proceedings. See the headnote of that decision:
The allocation of the burden of proof in TCU oversight proceedings follows the rules of art. 373 of Law 13,105/2015 (CPC), applied to the particularities of external oversight, with: a) the Court’s technical unit responsible for demonstrating the facts found in audits by submitting the supporting evidence; b) the audited bodies and interested third parties responsible for proving the facts that prevent, modify or extinguish the State’s right to obtain reimbursement and/or punish the illegal, illegitimate and uneconomical act attributed to them by the Court’s technical staff5.
By recognizing the responsible parties’ difficulty in providing evidence that the contracted prices were economical and removing this burden because of the long period between the events and the summons, the Court of Accounts applied, albeit without express mention, the dynamic theory of the burden of proof embodied in §1 of art. 373 of the CPC, under which “in view of particularities of the case relating to the impossibility or excessive difficulty of meeting the burden (…), the judge may allocate the burden of proof differently”.
The situation described in the case considered by the TCU is not uncommon. Sometimes the responsible or interested party is summoned to respond to a given act alleged to be irregular long after it occurred. As a result, producing evidence in their favor may become arduous or even unfeasible. The distance from the events impairs memory of what happened and of the justifications surrounding the situation in question, as well as compromising the gathering of the information and documents needed to fully exercise the right to adversarial proceedings.
More often than not, the responsible party has already changed position or body, or has even left public service, limiting their access to the information they will need to provide — not to mention the possibility that documents relevant to demonstrating the proper and regular use of the funds have been discarded or lost.
In short, all these situations, and many others that may arise from a long period between the act in question and the summons, make producing evidence extremely difficult or impossible, and it is not reasonable for the burden of proving that no irregularities occurred to fall on the responsible or interested party.
In cases such as this, applying a dynamic burden of proof is appropriate either to assign exclusively to the Court of Accounts’ technical staff the burden of proving, beyond dispute, the facts constituting the irregularity, or to conclude that, due to the extreme difficulty or impossibility of producing evidence in favor of the responsible or interested party, the examination of the matter was inconclusive, leading to the dismissal of the proceedings.
It should be noted that proof of the facts constituting the irregularity can only be considered undisputed if, projecting a scenario in which the responsible or interested party were able to produce counter-evidence, there would still be no chance of rebutting the impropriety found. In other words, there can be no doubt that the irregular act occurred, and even if certain counter-evidence that is currently unfeasible or difficult to obtain were produced, it would not be sufficient to eliminate the consequences of the finding. If there is doubt, however, the solution must be to dismiss the proceedings, given the impossibility of a precise and complete examination of the matter.
Another hypothetical situation in which a dynamic allocation of evidence may be advisable concerns proof of negative facts (e.g., I did not perform a certain act; I did not meet that person). Imagine a complaint submitted to the Court of Accounts alleging fraud in a given tender.
The complaint describes collusion between bidders, through the coordination of bids between the representative of company A and the representative of company B. Suppose the complaint is untrue and, contrary to its account, the two representatives never had any contact. Since this is a negative and indefinite fact, it is impossible or excessively difficult for the representative of company A to prove that they never had contact with the representative of company B. In a case such as this, the burden of proof should lie with the complainant or the Court of Accounts’ technical staff (if, upon receiving the complaint, it finds that it meets the admissibility requirements). And if they fail to produce such evidence, the complaint should be rejected.
It can be concluded that the possibility of making the burden of proof more flexible in Court of Accounts administrative proceedings, whenever the specific case so requires due to its particularities, can make the proceedings fairer and more effective, avoiding inequalities. It is therefore an important instrument that the deciding body and interested parties can use to guarantee procedural equality.
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1 On the differences between the static and dynamic allocation of the burden of proof, see: “The current CPC innovates by expressly providing for the possibility of a dynamic burden of proof. Previously, there was only the provision for reversal of the burden of proof in art. 6, VIII, of the Consumer Protection Code, which was merely a one-way street of evidentiary facilitation for a limited group of subjects and claims. In the static allocation of the burden of proof, each party knows in advance which types of facts its evidentiary activity must address, as well as who bears the risk of failing to prove them. The dynamic allocation of the burden of proof, in turn, means that the evidentiary burden will be allocated in light of the litigants’ evidentiary conditions, according to the specific case. Consequently, making it dynamic means being able to change the static burden previously set by law according to the substantive law and the specific features of the case. It is a way of giving effect to the principles of cooperation, access to justice and adequacy, allowing evidentiary burdens to be modified in specific cases so as not to create excessive difficulties in producing evidence”. (MACÊDO, Lucas Buril; PEIXOTO, Ravi, art. 373. In: STRECK, Lenio Luiz; NUNES, Dierle; CUNHA, Leonardo (Orgs.). Comentários ao Código de Processo Civil. São Paulo: Saraiva, 2016. p. 558.
2 WAMBIER, Tereza Arruda Alvim; et al. Primeiros comentários ao novo código de processo civil: artigo por artigo. São Paulo: Revista dos Tribunais, 2015. p. 891-892.
3 In this regard, Aldem Johnston Barbosa Araújo, in advocating the application of a dynamic burden of proof in administrative proceedings, notes the following: “the application of the dynamic burden of proof in such proceedings must be subject to inevitable adaptations, given that: first, there are no parties in administrative proceedings (there is an interested party); second, there is no impartial and equidistant judge; and third, there is not always a dispute”. (Processo administrativo e o novo CPC: impactos da aplicação supletiva e subsidiária. Curitiba: Juruá, 2017, p. 138).
4 In this regard: “when the requirements are met, the judge has a duty-power of dynamic allocation, failing which the rule is violated” (FERREIRA, William Santos. Art. 373. Breves comentários ao novo Código de Processo Civil. WAMBIER, Teresa Arruda et al. (Coords.). São Paulo: Revista dos Tribunais, 2015, p. 1411). “The legal provision used ‘may’, which we find strange, since we regard it as a duty, just as several other passages of the new CPC set out duties of the judge. Judicial interpretation cannot be otherwise, since the ratio of the rule is the evidentiary procedure and, if the judge does not order it, the evidence will be unfeasible, and what will be the role of decision theory in that case?” (GÓES, Gisele Santos Fernandes. Art. 373. In: ALVIM, Angélica Arruda; ASSIS, Araken de; ALVIM, Eduardo Arruda; LEITE, George Salomão (Coords.). Comentários ao Código de Processo Civil. São Paulo. São Paulo: Saraiva, 2016. p. 492).
5 See Judgment 1522/2016-Plenary, decided on 06/15/2016, Reporting Justice Benjamin Zymler.
GIUSEPPE GIAMUNDO NETO – Public law specialist (infrastructure, oversight and regulation). Master’s degree in State Law from USP and partner at Giamundo Neto Advogados.
*To cite this article: GIAMUNDO NETO, Giuseppe. Quem não é parte pode acessar processo no Tribunal de Contas? Portal Jota. 10/01/2019. Available at: https://www.jota.info/opiniao-e-analise/artigos/a-possibilidade-de-dinamizacao-do-onus-probatorio-no-tribunal-de-contas-01102019. Accessed on: mm/dd/yyyy.
