By Gabriela Soeltl

Repetitive Appeal Topic 1,257 of the Superior Court of Justice (STJ), decided on February 13, 2025, established that the amendments made by Law No. 14,230/2021 to the Administrative Misconduct Law (Law No. 8,429/1992) may be applied to pending cases to govern provisional relief freezing assets.

The decision resolves the controversy over the application of the new procedural rules to cases with asset freezes ordered under the previous rule, which had different requirements. With the amendment of article 16 of Law No. 8,429/1992, these measures can be reassessed under the new criteria, allowing for a more careful analysis weighed against the principles of reasonableness and proportionality.

1. The evolution of asset freezes under the LIA: from the problems of the old regime to the changes introduced by Federal Law No. 14,230/2021

Before the amendments introduced by Law No. 14,230/2021, asset freezes were governed by article 7 of Law No. 8,429/1992, which granted broad discretion in ordering the measure, often applied almost automatically and without objective criteria. The case law consolidated in STJ Repetitive Appeal Topic 701 reinforced this practice by presuming the periculum in mora, dispensing with concrete proof of it.

In addition, uncertainty about the scope of the measure — such as the inclusion of the fine, for example — and the lack of criteria for calibrating it resulted in asset freezes for the full amount of the damage against each defendant, without reasonableness or proportionality. The situation was aggravated when the measure was ordered at very preliminary stages, favoring the plaintiff’s narrative and limiting adversarial proceedings, distorting the general power of provisional relief and making it inconsistent with due process.

Among the main consequences of a rule out of line with procedural guarantees were: (1) excessive asset freezes, exceeding the alleged damage; (2) freezes ordered without concrete proof of necessity; (3) direct impacts on defendants’ livelihoods, hindering essential economic activities; and (4) freezes lasting for long periods, without periodic review.

To correct the accurate perception that the old article 7 of the LIA said less than it should, article 16 consolidated case law and eliminated interpretations that violated fundamental rights. However, with numerous pending cases and measures already ordered, an interpretive conflict arose: ensuring compensation to the public treasury through effective measures, or immediately applying the new rules while respecting procedural acts already consolidated, under article 14 of the Code of Civil Procedure (CPC).

The combination of article 14 of the CPC with article 5, XXXVI of the Constitution led to the interpretation that the new regulation of asset freezes applies to pending cases, but cannot retroact to undo procedural acts already consolidated. Thus, in theory, measures ordered under the previous rule could not be reviewed.

However, Law No. 14,230/2021 did not establish transition rules, giving rise to the controversy analyzed by the STJ: whether the changes would reach pending cases, including those with requests already decided. To fill this gap, STJ Topic 1,257 determined the immediate application of the new rules, allowing measures granted under the previous legislation to be reassessed.

2. The immediate application of the new rules on asset freezes: review of freezing orders in favor of legal certainty

First, the STJ concluded that Repetitive Appeal Topics 701 and 1,055 cannot stand under the new wording of the LIA, especially regarding the need to demonstrate the danger of delay (article 16, §§ 3, 4 and 8) and the inclusion of the civil fine in the asset freeze (article 16, § 10). Then, referring to the STF’s judgment on General Repercussion Topic 1,199, the STJ established that “there is no way to rule out the application of the provisions of Law 14,230/2021 when examining provisional relief freezing assets in cases that were already pending”.

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The STJ thus recognized that the new LIA rules must be applied immediately to pending cases, without this implying improper retroactivity. This conclusion stems from the very nature of provisional relief, which is precarious and subject to review at any time, as inferred from the combined application of articles 296, 493 and 933 of the procedural code.

In other words, this is not retroactivity in the strict sense, but the immediate application of new procedural guidelines to pending cases, adjusting the procedure to the current rules without compromising validly performed procedural acts. This review seeks to bring earlier decisions in line with Law No. 14,230/2021, avoiding excessive restrictions on assets and correcting distortions of the old wording of article 7 of the LIA.

The possibility of reviewing asset freezes directly affects litigation strategies. The Public Prosecutor’s Office and other parties with standing will have to substantiate their requests more rigorously, avoiding generic allegations based solely on the seriousness of the conduct. Defendants, in turn, may request the reassessment of measures ordered under the previous legislation to bring them into line with the new rules.

This understanding establishes a new paradigm in administrative misconduct actions, promoting greater technical rigor, balance between the public interest and individual guarantees, and a fairer procedural system compatible with legislative developments.

Originally published by ConJur (in Portuguese).