On the (in)applicability of special forum by reason of office in administrative improbity actions

Translated from the original.

Valber Melo[1]

Filipe Maia Broeto[2]

The special forum privilege by reason of office, as the complex and controversial institution it is, has always drawn the attention of legal scholars. If, on the one hand, there are those who defend it, on the other, there are those who oppose its existence. Notwithstanding, however, the thoughts for or against the institution — which, it should be stressed, has a constitutional seat — an analysis will be made on this occasion of the possibility/necessity of its “extension” to administrative improbity actions.

It should be stressed that, for the valid and coherent development of the present theme, account will be taken of the fact that the institute exists and, because it has constitutional shelter, at least for as long as that is so, it must be observed by the State’s sanctioning activity.

To begin effectively addressing the proposed topic, it is necessary to specify what the special forum privilege actually is and for what purpose it was created by the Constituent Assembly. Clarifying the subject, in discussing the prerogatives (among them, the special forum privilege) of certain public authorities, José Afonso da Silva teaches that these “Are established less in favor of the congressman than of the parliamentary institution, as a guarantee of its independence from other constitutional powers”.[3]

It should be noted that this is not a privilege – which has a personal connotation and would therefore be entirely unconstitutional, as an affront to the postulate of material equality – but rather a true constitutionally ensured guarantee, afforded to certain functions (and not persons, it should be stressed) essential to the full development of the Democratic Rule-of-Law State.

The rationale of the guarantee under study, according to the commentary of Justice Victor Nunes Leal, would translate into the presumption that “higher-ranking Courts have greater impartiality in judging the holders of certain public offices, by their capacity to resist either the possible influence of the accused himself or the influences acting against him. The presumed independence of the court is, therefore, a bilateral guarantee, a guarantee against and in favor of the accused”.[4]

In this context, it is clearly noted that there is nothing (un)constitutional or even (im)moral in the existence and use of the guarantee of special forum privilege by reason of office in criminal procedure. It should be noted, however, that this forum must extend not only to criminal proceedings but also to administrative improbity actions.

To ground this line of reasoning, arguments will be developed based on three essential premises, namely: (i) the undeniable ontological similarity of the sanctions prescribed in administrative improbity actions to those of criminal proceedings; (ii) the maxim “a maiore ad minus” – whoever can do the greater can do the lesser; and (iii) the potential impairment of the proper judgment of a public authority of national relevance by a lower court.

As already set out in the previous paragraph, the thesis now defended appears sustainable, at first, in view of the undoubted proximity between Criminal Law and Administrative Sanctioning Law. This is because both scholarship and case law have affirmed that the sanctions applied in the so-called action of “civil nature” come very close to those punishments provided for in criminal law, which is why similar procedural treatment must be afforded to them.

Note that this understanding has, moreover, prevailed in the higher courts, given that the administrative improbity action, regulated by Law No. 8,429 /92, indisputably has clear punitive effects[5]. For that reason, it requires, by symmetry, that the rules of Criminal Procedural Law be observed, above all as regards the necessary observance of fundamental rights and guarantees assured in the Constitution .

In this regard, this is what happens with the list of sanctions housed in Law 8,429/92, given that said legislation brings measures such as suspension of political rights, prohibition of civil rights – prohibition on contracting with the Public Administration –, etc.

It is thus clear that administrative improbity actions have, unmistakably, a “quasi-criminal” character, using here an expression employed by Gilmar Ferreira Mendes and Arnold Wald in the early days of Law No. 8,429/92, when its legal nature had not yet been defined[6].

Indeed, although the administrative improbity action does not have a purely criminal nature, the fact is that its sanctions closely resemble those of punitive law, and the same principles therefore apply to them, including, evidently, the rule of special jurisdiction by reason of office.

This is so, it bears repeating, because administrative improbity actions have important punitive consequences (of administrative sanctioning law), thus resembling criminal procedure, above all and chiefly with regard to the necessary observance of the fundamental rights and guarantees ensured in the Federal Constitution .

In this regard, Medina Osório masterfully argues that

[…] the legal regime applicable to improbity as designed in Law 8,429 /92 makes it possible to apply criminal-law principles to the Sanctioning Law of improbity, by symmetry, given the reach of the due process clause in Administrative Sanctioning Law and in Criminal Law. And, for that very reason, it is technically correct to extend the institutional guarantee of special forum to administrative improbity actions, in its full extent.

Thus, considering the closeness between Administrative Sanctioning Law and Criminal Law, it can be said that the criminal law principles apply to the former, such as typicality, culpability and subjective liability, among others, as the Superior Court of Justice has already held.[7]

Note that this occurs because Law No. 8,429/92, in outlining, in its art. 12 [8], a list of materially administrative sanctions[9], applicable to the improbus agent, chose to identify them to a high degree with those penalties of an eminently criminal nature that the 1988 Federal Constitution listed in its art. 5, item XLVI, with the exception of the custodial sentence[10].

In support of the alleged similarity, see an excerpt from the substantial vote of the late Justice Teori Albino Zavascki , of the Supreme Court , delivered in the interlocutory appeal (Ag. Reg.) in Petition 3,240, Federal District, in which he established that:

Although the sanctions applicable to acts of improbity are not criminal in nature, there are deep ties of identity between the two kinds, whether as to their function (which is punitive and has a pedagogical and deterrent purpose, aiming to inhibit new violations), or as to content. Indeed, there is no difference between the loss of public office or the suspension of political rights or the imposition of a pecuniary fine, when arising from a criminal offense or from an administrative offense.

Accordingly, considering the list of punishments already mentioned, one cannot deny the crystal-clear ontological identity between the administrative sanctions provided for in art. 12 of Law 8,429/92 and those prescribed by the Constitution of the Republic in its art. 5, XLVI, as proper to Criminal Law, including suspension and prohibition of rights, as well as imposition of a fine. Moreover, both kinds provide for remedial measures of reimbursement to the public treasury and forfeiture of assets or amounts unlawfully added to the estate.

From this perspective, then, it must be admitted that, despite its civil nature, the Administrative Improbity Action harbors a series of sanctions close to the criminal field, which is why it is presently given a “ sui generis ” character, proper to Administrative Sanctioning Law, understanding, therefore, that, although formally civil, its essence is an immediate and unquestionable reflection of the punitive regulation given within Brazilian Criminal Law[11].

In this vein, moreover, are the valuable teachings of Fábio Medina Osório :

We are speaking of a public procedural law, without a doubt, which forks into the administrative stricto sensu and judicial spheres. In the latter, it can be argued that the protection directly linked to art. 37 , § 4, of the Constitution, embodied in the LGIA, is connected to procedural law governed by rules of the Code of Civil Procedure , the Public Civil Action Law , the Popular Action Law , and the LGIA, which is the fundamental matrix. Recently, this same punitive action has been associated with the Code of Criminal Procedure, not only in dealing with special forum privilege, […] but also in addressing problems that call for approximations between administrative sanctioning law and criminal law.[12]

It is therefore evident that this thesis is neither a sophism nor a hermeneutic fraud. In truth, through the ontological comparison of the punishments provided for in the LIA , one inexorably reaches the conclusion that the guarantee of special forum privilege is indeed also applicable to administrative improbity actions.

It should be affirmed that such a line of reasoning finds shelter in the Theory of Implied Complementary Powers, studied in Comparative Law, but already adopted in Brazilian courts, chiefly by the Federal Supreme Court. [13]

To deepen the approach to the topic of the Theory of Implied Complementary Powers, see the lessons of José Joaquim Gomes Canotilho :

[…] The normative force of the Constitution is incompatible with the existence of unwritten powers, except where the Constitution itself authorizes the legislator to broaden the range of powers specified in normative-constitutional terms. On the methodological plane, one must also set aside ‘implied powers’, ‘resulting powers’ or ‘inherent powers’ as autonomous forms of competence. It is admissible, however, to supplement constitutional powers through the use of methodological instruments of interpretation (above all systematic or teleological interpretation). In this way, one arrives at two hypotheses of implied complementary powers: (1) implied complementary powers, falling within the normative-constitutional program of an explicit power and justiciable, because it is not so much a matter of broadening powers as of deepening them (e.g.: whoever has the power to make a decision should, in principle, have the power to prepare and shape the decision); (2) implied complementary powers, necessary to fill patent constitutional gaps through a systematic and analogical reading of constitutional provisions .[14]

It should be noted, as relevant, that said theory is consolidated in the Federal Supreme Court in the event of constitutional gaps, when logic allows indicating the jurisdiction of the respective court or when the Constitution itself so establishes.

Starting, then, from the benchmarks established so far, one must ask whether the “broadening” or “extension” of special jurisdiction by reason of office to administrative improbity actions constitutes a case of increased competences or, on the contrary, proves to be a necessary deepening of competences.

In the case under study, it seems that, if the guarantee of privileged forum were extended to administrative improbity actions, there would be no illegality or unconstitutionality, since that interpretation follows from the very purpose of the institution of privileged forum by reason of office, which is to provide a more impartial trial, in accordance with the teleological scope of the 1988 Constitution.

In this vein, in full harmony with what has been set out, it is worth noting that the Federal Supreme Court, giving shelter to the thesis defended here, has already understood the “extension” of special forum by reason of office also to administrative improbity actions.

See, in this regard, Pet 3211-0 QO/DF, in which the Supreme Court decided that an agent with special forum – in that case a Justice of the STF – could not be subject to the jurisdiction of a first-instance judge in an improbity action, on pain of dizzyingly inverting the constitutional order established in the prerogatives, as, for example, in the case of a lower-court judge decreeing the loss of office of a higher-court judge.

Point of order. Public civil action. Act of administrative improbity. Justice of the Federal Supreme Court. Impossibility. Competence of the Court to try and judge its members only in common criminal offenses.

1. It is for the Federal Supreme Court to judge an improbity action against its members.

2. Dismissal of the action as to the Justice of the Supreme Court and referral of the case file to the court of first instance as to the others.

(Pet 3211-0 QO/DF. Full Court, Opinion of the Court Justice Menezes Direito, DJE-117).

Note that this ruling recognized (and reiterated) the thesis of the existence, in the 1988 Federal Constitution, of complementary implied competences, making clear that, notwithstanding the declaration of unconstitutionality of the sub-constitutional normative provision (Law 10,628, of 2002 – art. 84, § 1 and § 2 CPP), the Special Forum Privilege in administrative improbity actions has a basis to be sustained – even if implicitly – in the Constitutional Charter itself.

As if that were not enough, it is also worth noting that the Eminent Justice Luiz Fux, of the Federal Supreme Court, in MS 31234 MC, of which he was rapporteur (in which jurisdiction was questioned in an improbity action against the Minister of State for Finance), granted a preliminary injunction stating on that occasion that:

It would not be consistent with the normative unity of the constitutional text , as already recognized in the precedents transcribed above, for a Minister of State to answer as a defendant in an improbity action pending at the first level of jurisdiction, insofar as that action may also entail loss of public office. It follows, therefore, that, despite the clear past oscillation in case law on the subject, the understanding that political agents may answer as defendants in an improbity action, but with observance of special forum privilege, has been consolidating more recently in domestic case law, and in particular within this Supreme Court (…).

It is not unknown, evidently, that the matter still lacks a certain jurisprudential settlement, which, without any doubt, is already being done by the national courts, chiefly within the Federal Supreme Court .

In this vein, it must be noted that, more recently, the late Justice Teori Albino Zavascki , in the internal appeal in petition 3,240/DF, interpreting the precedents fixed in MS 31234/MC, as well as in Pet 3211-0 QO/DF, with the mastery that was always his hallmark, set out flawless lessons on the subject, in verbis :

Although the sanctions applicable to acts of improbity are not criminal in nature, there are deep ties of identity between the two kinds, whether as to their function (which is punitive and has a pedagogical and deterrent purpose, aiming to inhibit new violations), or as to content. Indeed, there is no difference between the loss of public office or the suspension of political rights or the imposition of a pecuniary fine, when arising from a criminal offense or from an administrative offense.

[…]

As for the rest, however, there is no difference between one and the other. Only a custodial sentence is genuinely criminal, since it is available solely in cases of criminal offense.

[…]

It is precisely this substantial identity of penalties that supports the doctrine of the unity of the State's punitive claim (ius puniendi), whose main consequence “is the application of principles common to criminal law and administrative sanctioning law, thereby reinforcing individual guarantees” (OSÓRIO, Fábio Medina. Administrative Sanctioning Law, SP: RT, 2000, p. 102; ENTERRIA, Eduardo García de; FERNANDEZ, Tomás- Ramon. Course of Administrative Law, trans. Arnaldo Setti, SP:RT, 1991, p. 890). Indeed, it does not seem logical, from the standpoint of fundamental rights and the postulates of human dignity, to grant the accused the broadest guarantees even when he must answer for a criminal offense that produces a mere monetary fine and to deny him similar guarantees when the infraction, although administrative, may result in a far more severe penalty, such as loss of public office or suspension of political rights.

[…]

This understanding should be adopted, I think, in relation to the privileged forum by reason of office. If the Constitution regards this prerogative as important, whatever the seriousness of the infraction or the nature of the penalty applicable upon criminal conviction, there is no way not to consider it inherent in the punitive system of the improbity action, whose consequences, as regards the accused and the office, are ontologically similar and sometimes even more burdensome. Ubi eadem ratio, ibi eadem legis dispositio. If there is, by the express will of the Constituent Assembly, a privileged forum for criminal offenses that carry a mere monetary fine, it would make no sense to deny that guarantee in relation to improbity actions, which entail, besides a monetary fine, also loss of the public office itself and suspension of political rights.

(STF, AgRg in Pet. 3,240/DF, Rapporteur Justice Teori Albino Zavascki, Second Panel, judged 19/11/2014, awaiting the votes of the other justices, after Justice Roberto Barroso requested the case file for review).

Evidently, the precedents cited above merely corroborate that the topic is no longer as controversial as it once was. On the contrary, what can be perceived is the settling of the thesis that special forum by reason of office should indeed prevail, even in actions concerning administrative improbity, bearing in mind the unequivocal ontological similarity of Administrative Sanctioning Law and Criminal and Criminal Procedural Law.

From another angle, were it not enough that the ontological similarity between the punishments of criminal law and administrative sanctioning law admits the extension of special forum by reason of office to public agents who are defendants in administrative improbity actions, it would suffice to bring up, as a converse argument, the principle of “a maiore ad minus,” whereby, as Aldemário Araújo Castro points out, “what is valid for the greater must necessarily prevail for the lesser, or ‘he who can do the greater can do the lesser.’” [15]

Along these lines, it is argued that, if the Original Constituent provided for special forum privilege for public agents who commit crimes, which carry the possibility of a custodial sentence and are therefore to some extent more serious than acts of improbity, there is no (plausible) justification for the same not to apply to administrative improbity actions.

That is to say, if for crime — which is, in theory, “the greater” — there is special forum by reason of office, the same must apply to administrative improbity actions, which are, to a certain extent, less serious than the offenses properly speaking.

In this regard, moreover, is the vote of then Justice Cezar Peluso in the QO of Pet. 3.211:

If, under the Constitution, a Justice of the Federal Supreme Court can be prosecuted, for common criminal offenses, only by this Court and, for crimes of responsibility, by the Federal Senate, it is inconceivable that an action for an offense of lesser gravity, among whose sanctions is loss of office, could be assigned to the competence of other bodies. I insist that if, for the gravest offenses of the legal order, which are common crime and crime of responsibility, a Justice of the Federal Supreme Court can be judged only by his peers or by the Senate of the Republic, it would be absurd or the height of nonsense to conceive that the legal order permits a Justice to be judged by another body in a different action, but among whose sanctions is also loss of office. This would be the disarticulation of the whole system that underpins the distribution of competence, for the judgment of the gravest offenses attributed to a Justice of the Supreme Court, between the Federal Supreme Court and the Senate of the Republic. For this reason, with the utmost respect to the eminent Rapporteur, I affirm the competence of this House’.

Indeed, either one understands that the sanctions applicable in the spheres of Administrative Sanctioning Law and Criminal Law are so similar as to allow analogous treatment with regard to the forum by prerogative of office, or one admits (for the sake of consistency) that, if the functional prerogative

Last but not least, it must be pointed out that the jurisdiction of a single-judge court to try the highest authorities, of national relevance, only weakens the Democratic Rule of Law, insofar as it runs counter to the purpose of the protection granted by the Const

In this context, therefore, there is no doubt that the prerogative of forum is primarily grounded on the principle of equality and the hierarchical principle, seeking, rather than to privilege persons, to preserve the functional independence of agents holding constitutional and instituc