The massification of improbity actions

Since Law 8,429/92, the so-called Administrative Improbity Law, came into force, there has been much uncertainty as to its scope. Initially, its legal nature was debated: was it civil or criminal? We have defended an intermediate position since 1999, which prevailed in the case law of the STJ, namely, submission to the legal regime of Administrative Sanctioning Law. This means that the infractions and sanctions governed by this law belong to Administrative Law, since they violate rules and principles of that branch of law. Administrative Sanctioning Law, in turn, is a branch of law that has been studied above all in Europe since the late nineteenth century, and developed mainly over the course of the twentieth century.

The first course with this specific name, in Brazil, was founded by us in the master's and doctoral programs of the UFRGS Law School, in 2004. One of the main consequences of applying Administrative Sanctioning Law to improbity actions is the submission of these actions to the rules and principles of criminal law, with nuances, in addition to the rules and principles of civil procedure and of administrative law itself.

The proliferation of improbity actions occurred, at first, because of the open-ended offense definitions in the Law. This legislative technique opened room for confusion between mere illegalities and improbity. Thus, any divergence of interpretation as to the waiver of a bidding process could already lead the public manager, and even the service provider or contractor, to the defendant's side of a lawsuit.

Numerous actions were filed based on strict liability, without inquiring whether there was gross error, serious negligence, or bad faith. And the law prohibited agreements or settlements. It happens that the consensual solution was adopted by Law 13,140/2015 and reinforced by the New CPC, in its art. 3, paragraph 2, arts. 174, 190, and 515, item III. The National Council of the Public Prosecution Service, through Resolution 172, of 04/07/2017, along the same lines, authorized agreements in administrative improbity actions.

It is time for the Public Prosecution Service to help decongest the Justice system, abandoning actions without accusatory plausibility. Consensual solutions will always be advisable. A guiding principle in combating public mismanagement is the recovery of diverted assets and the redirection of focus to cases backed by robust evidence.

By Fábio Medina Osório, lawyer, former Minister of the AGU, holds a doctorate in Administrative Law from the Complutense University of Madrid