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. A aplicação do Código de Processo Civil/2015 no Tribunal de Contas. Portal Jota. 09/17/2019. Available at: https://www.jota.info/opiniao-e-analise/artigos/a-aplicacao-do-codigo-de-processo-civil-2015-no-tribunal-de-contas-17092019. Accessed on: mm/dd/yyyy.
With the advent of Law 13,105 of March 16, 2015, which established the new Code of Civil Procedure (“2015 Code of Civil Procedure”), civil procedural law went beyond the limits of governing judicial proceedings and took on the express role of a subsidiary and supplementary source for administrative proceedings, providing in its article 15 that “in the absence of rules governing electoral, labor or administrative proceedings, the provisions of this Code shall apply to them on a supplementary and subsidiary basis”. It therefore applies to all administrative proceedings, including those pending before the Court of Accounts.
The purpose of this provision was to extend to non-judicial proceedings the full requirement of respect for the principles and rules inherent in constitutional procedural law, as well as its own regulation of these higher precepts, in addition to certain technical procedural institutions1. It is therefore entirely relevant to due process of law.
Article 15 of the 2015 Code of Civil Procedure thus gives the new civil procedural legislation great influence over administrative proceedings conducted by the Court of Accounts, especially for improving the guarantees of citizens and interested parties in these proceedings. Civil procedural law, in this sense, must be applied not only when administrative procedure rules are silent, but also to supplement, improve and update existing rules.
The result is an integration aimed at filling three types of gaps: (i) normative, when there is no rule under which the specific case can be subsumed; (ii) ontological, when the rule exists but is outdated and incompatible with reality and its social, political and economic values; and (iii) axiological, when applying the existing law would be manifestly unjust for resolving the specific case2.
Although the subsidiary application of the Code of Civil Procedure could already occur at the discretion of the Federal Court of Accounts3, the new provision seems to represent progress insofar as it: (i) made the subsidiary and supplementary application of civil procedural law mandatory where internal rules are silent, thereby removing the body’s previous discretion regarding the application of the Code of Civil Procedure; (ii) included supplementarity, which serves to fill gaps and, as explained above, to give new contours to existing administrative procedure rules; and (iii) established a connection between civil procedure and accounts administrative procedure, bringing them closer together.
Certainly, borrowing institutions and principles from the Code of Civil Procedure should not be done automatically and indiscriminately. Compatibility with the rules of the special law governing accounts administrative proceedings must be observed, preserving their rationale. In short, there must be harmonious integration4. The rules of civil procedural law must be consistent with the spirit of administrative procedural regulation, and the Code cannot be transposed to cases where the law’s silence is intentional and deliberate, not accidental5. On the other hand, to the extent that the new Code of Civil Procedure provides more effective instruments for protecting threatened or violated rights, they should be adopted, despite a different solution given by specific legislation6.
Along these lines, and using the logical-formal compatibility of the rules as the assessment parameter, it seems to us undeniably important to examine the elements guaranteeing due process of law in Court of Accounts administrative proceedings in light of the repercussions of the 2015 Code of Civil Procedure.
Of particular importance is the application, in administrative proceedings, of the fundamental rights rules contained in articles 1 to 12 of the 2015 Code of Civil Procedure, which seek to give democratic legitimacy to the exercise of jurisdiction through limits imposed on it — the essence of due process of law7. They are as follows:
– the application of the Federal Constitution to proceedings (article 1), under which proceedings must be ordered, governed and interpreted in accordance with fundamental constitutional values and rules;
– the parties’ right to have the proceedings resolved within a reasonable time, set out in article 4, although this right was already enshrined in article 5, LXXVIII of the Constitution, with express reference to administrative proceedings.
– the duty of procedural good faith, set out in article 5, which is expected both of the subject of the administrative proceeding and of the oversight body itself, including its auditors and decision-makers;
– the parties’ duty to cooperate (art. 6), so as to obtain a fair and effective decision on the merits within a reasonable time;
– equal treatment of the parties (article 7), ensured with regard to the exercise of procedural rights and powers, means of defense, burdens, duties and the application of procedural sanctions, with the decision-maker responsible for ensuring effective adversarial proceedings;
– the decision-maker’s duty to observe proportionality, reasonableness, legality, publicity and efficiency (article 8);
– the obligation of adversarial proceedings prior to any decision (art. 9), except in cases of urgent measures;
– the prohibition of surprise decisions, set out in article 10, under which the judge may not decide, at any level of jurisdiction, on grounds on which the parties have not been given the opportunity to be heard;
– the publicity of judgments and the duty to give reasons for decisions, under penalty of nullity, set out in article 11.
– preferential observance of the chronological order of judgments (article 12).
It can be said that some of the fundamental rules listed above were already provided for or applied by the Court of Accounts, whether by virtue of its organic law or as a result of its case law. The new civil procedural law, in this sense, has the merit of reinforcing these precepts by expressly regulating them. Other fundamental rules, however, improve or expand procedural guarantees, representing unequivocal progress in the rights and prerogatives of those subject to such administrative proceedings.
Along the same lines, and moving on to the subsequent books of the 2015 Code of Civil Procedure, particular attention should be paid to the new provisions on third-party intervention in administrative proceedings (especially the rules on amicus curiae) and on the production of evidence.
There is the figure of the amicus curiae, provided for in article 138 of the 2015 Code of Civil Procedure, under which, “considering the relevance of the matter, the specificity of the subject of the claim or the social repercussion of the dispute”, the judge may request or admit “the participation of a natural or legal person, specialized body or entity, with adequate representativeness”.
The production of evidence in accounts administrative proceedings may also be rethought in light of the 2015 Code of Civil Procedure. The law governing administrative proceedings at the Court of Accounts is silent, for example, on the possibility of examining the party or witnesses. The same applies to the production of expert evidence, which is not provided for8. It is therefore necessary to verify whether producing such evidence is compatible with accounts administrative proceedings.
Furthermore, the 2015 Code of Civil Procedure, in addition to adopting the static theory of the burden of proof — under which, as a rule, the plaintiff bears the burden of proving the facts constituting its right and the defendant the existence of facts preventing, modifying or extinguishing the plaintiff’s right — also enshrined the dynamic theory of the burden of proof. This means, under its article 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.
In this regard, the possibility of reversing the burden of proof in certain accounts administrative proceedings deserves reflection9. For example, consider proceedings investigating a complaint, in which the burden of proof would tend to fall on the responsible party complained against. Under the new civil procedural law, depending on the circumstances and always at the discretion of the reporting member, the burden of proof could fall on the complainant itself due to the impossibility or excessive difficulty the responsible party would have in meeting it.
The 2015 Code of Civil Procedure is a statute whose spirit is grounded in the pursuit of greater legal certainty in decisions. It is also a rights-protective law, bringing constitutional principles into ordinary legislation with the aim of ensuring compliance with the precepts making up the constitutional protection of proceedings, forming its own system of guarantees10. Hence the importance of examining its effects on Court of Accounts administrative proceedings in light of the principle of due process of law.
——————————————
1 See DINAMARCO, Cândido Rangel. Comentários ao Código de Processo Civil – volume I (arts. 1º a 69): das normas processuais civis e da função jurisdicional / coordinated by José Roberto Ferreira Gouvêa, Luis Guilherme Aidar Bondioli, João Francisco Naves da Fonseca. – São Paulo: Saraiva, 2018. p. 150.
2 This is what Carolina Tupinambá describes. In addition, the author notes that “the supplementary and subsidiary application required by art. 15 therefore means accepting, in favor of effectiveness as the unitary purpose of procedural law, that the regulation of the new CPC will fill the normative, ontological and axiological gaps of other special procedural legislation, which will not accommodate isolated interpretations or interpretations clinging to any supposed autonomy of their respective branches of procedure. From now on, based on the wording of art. 15 of the Code, the construction of solutions to apparent antinomies in procedural law as a whole will not be resolved exclusively by the specialty criterion”. (TUPINAMBÁ, Carolina. Comentários ao artigo 15 do Novo Código de Processo Civil. In: CABRAL, Antonio do Passo; CRAMER, Ronaldo (Coord.). Comentários ao novo Código de Processo Civil. 2nd ed. Rio de Janeiro: Forense, 2016, p. 50.
3 In this regard, see TCU Summary 103: “In the absence of specific legal or internal rules, the provisions of the Code of Civil Procedure apply by analogy and on a subsidiary basis, as appropriate, at the discretion of the Federal Court of Accounts”. The Internal Rules are even more explicit and remove the TCU’s prerogative to decide on this application, providing in article 298 that “the provisions of the procedural rules in force apply subsidiarily at the Court, as appropriate and provided they are compatible with the Organic Law”.
4 As Egon Bockmann Moreira aptly stresses when referring to the general law on administrative procedure (Law 9,784/1999), an idea that applies perfectly here: “CPC/2015 cannot be understood as a law foreign or extraordinary to administrative procedure (including in relation to Law 9,874/1999). On the contrary: it must be read in an integrated way, so that CPC/2015 is applied whenever feasible: both in cases where the specific law is silent and in those where it provides a more appropriate solution to the specific case (provided it is compatible with the administrative legal regime). Omission in the strict sense (the complete absence of a rule) is not necessary, since what is at stake is the application of the principle of effectiveness”. (Op. cit., p. 318).
5 See DUARTE, Zulmar. Teoria geral do processo: comentários ao CPC de 2015: parte geral. GAJARDONI, Fernando da Fonseca et al. (e-book). São Paulo: Forense, 2015. p. 130.
6 BUENO, Cassio Scarpinella. O mandado de segurança e o Novo Código de Processo Civil. In: CIANCI, Mirna; DIDIER Jr., Fredie; CUNHA, Leonardo Carneiro da; REDONDO, Bruno Garcia; DANTAS, Bruno; DELFINO, Lúcio; CAMARGO, Luiz Henrique Volpe (coords.). Novo Código de Processo Civil: Impactos na Legislação Extravagante e Interdisciplinar, various authors, various coordinators, São Paulo: Saraiva, 2016, v. I, p. 196.
7 See DINAMARCO, Cândido Rangel. Comentários ao Código de Processo Civil – volume I (arts. 1º a 69): das normas processuais civis e da função jurisdicional / coordinated by José Roberto Ferreira Gouvêa, Luis Guilherme Aidar Bondioli, João Francisco Naves da Fonseca. – São Paulo: Saraiva, 2018, p. 25.
8 Note, in fact, that there is TCU case law relying precisely on this lack of regulation in the TCU Internal Rules and Organic Law to reject the production of expert evidence, as per the following headnote: “External oversight proceedings do not allow the production of expert evidence, and the provisions on evidence in civil procedure do not apply by analogy, since Law 8,443/1992 and the TCU Internal Rules exhaustively set out the means of evidence available to responsible parties”. (Judgment 2491/2016 – First Chamber, Reporting Justice Walton Alencar Rodrigues).
9 The TCU has settled case law holding that the manager bears the burden of proving the regularity of the use of public funds. As regards private parties, on the other hand, the TCU recently held that it (the TCU) must prove allegations of illegality. See the respective precedent: “The burden of proof regarding illegal occurrences attributed to third parties contracted by the Public Administration lies with the TCU, which must show the unlawful conduct committed for the purpose of imposing a debt. The obligation to demonstrate the proper and regular use of public funds is assigned to the manager, not to third parties contracted by the Public Administration”. (Judgment No. 901/2018 – 2nd Chamber).
10 See DINAMARCO, Cândido Rangel. Comentários ao Código de Processo Civil – volume I (arts. 1º a 69): das normas processuais civis e da função jurisdicional / coordinated by José Roberto Ferreira Gouvêa, Luis Guilherme Aidar Bondioli, João Francisco Naves da Fonseca. – São Paulo: Saraiva, 2018, p. 54.
