Fábio Medina Osório in an exclusive interview with Correio Braziliense

Translated from the original.

Correio Braziliense presents, in its Wednesday (20/7) edition, an exclusive interview with the head of Medina Osório Advogados, Fábio Medina Osório, given to journalist Michelle Portela, in which the jurist projects scenarios for the upcoming 3/8 judgment, when the STF will decide on the retroactivity of the new Administrative Improbity Law. See the full text.

https://www.correiobraziliense.com.br/politica/2022/07/5023360-stf-pode-dar-sinal-verde-para-investigados-voltarem-a-politica-avalia-ex-agu.html

The Federal Supreme Court (STF) begins to analyze, on August 3, Topic 1,199, which grants general repercussion to the possible retroactivity of the provisions of the new Administrative Improbity Law (14,230/21). The case will determine whether the intent to commit the offense must be proven for an act of administrative improbity to be established. It will also establish new limitation periods to be applied to proceedings for misappropriation of public funds.

The changes may benefit politicians accused of misuse of public funds, who are facing or have faced lawsuits, but who were granted preliminary injunctions and can therefore run in the October elections. Among them is the former governor of the Federal District, José Roberto Arruda.

For Fabio Medina Osório, former Attorney General of Brazil, a favorable STF decision on the implications of the possible retroactivity of the law will impact the upcoming elections. Read below the main excerpts of the interview.

What can we expect from the Federal Supreme Court trial?

Administrative sanctioning law in the field of administrative improbity was introduced in Brazil in 1999 with our scholarship and later consolidated in the case law of the STJ (Superior Court of Justice) and in the new Administrative Improbity Law, which brought the reform of Law 8,429/92. The STF’s tendency will be to embrace the principle of retroactivity of more lenient laws to favor the accused and those investigated.

Many politicians became ineligible because of the Improbity Law. Won’t the retroactive application of these limitation periods amount to an incentive to corruption?

At the time of the reform, I acted against the elimination of the negligence-based offense and was totally opposed to the changes to the limitation periods. However, legal practitioners need to learn to respect the democratic principle, which expresses the will of the legislator. I think a distorted interpretation of the law to undermine the sovereignty of the Legislative Branch is unacceptable. On the other hand, it is also true that there were many abuses and deviations in the handling of arbitrary improbity actions against public managers. Many simply sought to control public policies or to invade discretionary spaces. Others confused mere administrative errors with improbity. The legislator reacted to the abuses and to the lack of control in filing actions without institutional unity.

The law now provides that only the Public Prosecution Service may bring an improbity action against a public figure. Do you see any unconstitutionality in this?

I also criticized this change heavily, since it removed an important legal prerogative of the public law offices, mainly those of the Federal Government and the states. But I do not see this prerogative of the public law offices enshrined in the Constitution. Therefore, it does not seem unconstitutional to me.

Is it possible for Congress to create new models of negligent conduct — without intent — beyond what Law 8,429/92 provides?

I believe it is constitutional to eliminate negligent improbity and create only intentional offenses. But negligent improbity does not result in anything incompatible with the Constitution, just as negligent embezzlement would not be. The ordinary legislator may create negligent offenses, provided that gross negligence is observed. I write about this in my work Theory of Administrative Improbity.

How can the new Improbity Law be more effective in combating unlawful public acts?

The new law brings more predictability to prohibited conduct. The oversight institutions need to deepen their investigations before filing any action. The investigative power must be exercised with responsibility and technical quality. Actions should be filed only with strong legal plausibility, because they cause irreversible damage to reputations. Civil non-prosecution agreements and leniency agreements should be increasingly favored as instruments for preserving companies. Brazil’s development agenda depends on issues such as predictability and legal certainty.

There will be many cases of politicians accused of administrative improbity who will benefit from retroactive prescription. Would that be the case, for example, of José Roberto Arruda, former governor of the Federal District, who will run for a seat in the Chamber of Deputies?

In fact, the legislator, by choosing shorter limitation periods and abolishing certain sanctioning offenses, being a matter of substantive law, opted for more beneficial retroactive rules in the sphere of administrative improbity. The case of former governor José Roberto Arruda is emblematic because it was classified under general repercussion and suspended, but I do not know the theses debated in the case file. What is certain is that one of the theses discussed in Provisional Relief Requests Nos. 4,022 and 4,023 — which was, moreover, the subject of a recent STJ decision — involves classifying the claim under general repercussion, determining the attribution of suspensive effect to the special appeal filed until the final judgment of Theme 1,119 at the STF. Analogous cases will likewise be covered by retroactive rules involving administrative sanctioning law, which is a branch of law analogous to criminal law. The STF will have the final word. But, where administrative sanctioning law is concerned, the treatment must be symmetrical to criminal law and, as to certain guarantees, even identical.