Concept of administrative sanction: new paradigms

What are the new paradigms of Administrative Sanctioning Law that should be taken into consideration for a frank debate today? It is important to reflect on the new concept of administrative sanction adopted in Brazilian scholarship and case law, after 20 years of evolution.

The concept of administrative sanction that we put forward in 2000 was the following: an administrative sanction consists of an evil or punishment, because it has afflictive effects, with general reach and potentially pro futuro , imposed by the Public Administration, materially considered, by the Judiciary or by public-law corporations, on an administered person, a person subject to jurisdiction, a public agent, an individual or legal entity, whether or not subject to special relationships of subjection to the State, as a consequence of an unlawful conduct, defined in a prohibitive rule, for a repressive or disciplinary purpose, within the formal and material scope of application of Administrative Law.

A) The formal element of the sanction

We defend a concept of administrative sanction that goes beyond the merely formal concept of Administrative Law. This thesis dates back to 1999, in an article we wrote for the Spanish RAP (Revista de Administración Pública) 149/1999, under the title “Corrupción Y Mala Gestión de la res publica: el problema de la improbidad administrativa y su tratamiento en el derecho administrativo sancionador brasileño.”

In that article, besides translating, for the first time, the administrative improbity law into Spanish, I had the opportunity to argue that “las sanciones de la LIA (art. 12, I, II y III) son aplicadas por autoridades judiciales, de ahí la distinción necesaria entre sanciones administrativas strictu sensu y sanciones administrativas lato sensu. De hecho, la LIA prevé sanciones de Derecho Administrativo, puesto que se trata de relaciones especiales de sujeción sometidas al Derecho Administrativo Sancionador. Son «ilícitos» practicados por funcionarios públicos o particulares contra los principios y reglas que presiden la Administración Pública. Se trata, sin lugar a dudas, de sanciones administrativas”.

The legal branch of Administrative Sanctioning Law does not protect only the procedural activities of the Public Administration, but also legal interests primarily addressed in the Federal Constitution itself, as is the case of public function.

In this sense, a material conception of Administrative Law – and from its roots it is possible to see such evolution – admits a broader concept of administrative sanctions and infractions, allowing the legislator to entrust the Judiciary with the task of repressing offenses and sanctions of Administrative Law.

This came to pass, for example, with Law 8,429/92 or with Law 12,846/13. This is a new paradigm of Administrative Sanctioning Law, which has been recognized by the case law of the higher courts for a long time, as seen in an STJ judgment with Justice Luiz Fux as rapporteur, in which he cites our scholarship as a reference [1] .

Note that Technical Study No. 01/2017 – 5th CCR of the MPF, which analyzes “the innovations of Law No. 12,846/2013 – the Anti-Corruption Law (LAC) –, and their reflections on the so-called Brazilian anti-corruption microsystem,” also recognizes the legal nature of Administrative Sanctioning Law for both Law No. 12,846/2013 and Law No. 8,429/1992, relying on our scholarship. This kind of finding starts from the conceptual premise of the material administrative sanction adopted here.

This new conceptual element of administrative sanction makes it possible to extend its reach to sanctioning types applied directly by the Judiciary. Consequently, the legal regime applicable to laws such as those governing acts of administrative improbity or acts of corporate corruption becomes that of Administrative Sanctioning Law, with all the dogmatic evolution that is proper to it.

The prevailing understanding in the courts is already in this direction [2], and the view of the Brazilian Public Prosecution Service is also along the same lines [3]. The practical importance of this construction is notable: the legal regime of Administrative Sanctioning Law applies to these new normative fields.

B) The objective element: the afflictive effect of the sanction

Another conceptual aspect of administrative sanction concerns the afflictive element of the measure. Economic interpretations of law do not remove the necessary afflictive burden of the penalty. This is an interpretive technique of the rule, one of the possible techniques.

Sanction is not a reward; that is its essence. In this regard, this objective element – the afflictive effect – characterizes sanction as such, because it distinguishes it from a “reward”. Sanction is not to be confused with the absence of rewards, incentives or benefits that a body may legitimately and discretionarily grant to an individual or legal entity. Sanction is a punishment. And punishments mean cuts in rights, reductions in spheres of liberty or property.

It is not a matter here of discussing whether punishment has an essentially retributive nature or, on the contrary, as the adherents of normativist functionalist theory maintain, whether its purpose would be solely positive general prevention and the protection of expectations institutionalized in norms.

It is not being said that the purpose of the penalty is to cause pain or to punish someone, but rather that the central characteristic for its recognition is the presence of an objectively perceptible afflictive effect. At this point, we are not discussing the purposes of administrative penalties, much less of criminal penalties. The perspective of the afflictive effect is objective, not subjective. An afflictive effect of a normative character that is distinguished from the rewarding dimension is an essential trait of the sanction.

Regulatory Administrative Law deals with multiple disciplines. Obviously, this transdisciplinary nature points to its complexity. But it is not a phenomenon exclusive to Regulatory Law to establish incentives and rewards, since Economic Criminal Law also seeks to protect and steer behavior in pursuit of the attainment of rational purposes.

These functionalities do not affect the agent’s subjective element with regard to the afflictive effect of the measure. For a sanction to be considered as such, it must contain in its structure one central element: the afflictive effect, the punishment.

The practical importance of recognizing the afflictive effect as indispensable to a sanction is fundamental. Reward measures start to be distinguished from administrative sanctions more clearly. And the cutting off or ending of incentives is also not to be confused with sanctions.

C) The teleological element of sanction: the punitive purpose

The punitive purpose of the administrative sanction is not incompatible with a disciplinary purpose, although it obviously departs from the compensatory claim. The exercise of disciplinary power is necessarily, to some extent, also punitive, although it pursues a marked pedagogical objective.

It happens, on the one hand, that this pedagogical aim is neither ruled out nor foreign to the repressive purposes ordinarily present in administrative penalties or sanctions. Note, for example, that Criminal Law must pursue purposes of resocialization and re-education of the subject, although it must also play a role of social defense, segregating people unable to restrain their impulses or wills destructive of the normative order that covers the social fabric.

There is a clear historical relationship between punishment and pain, better understood in the psychic sense, but originally with the well-known physical connotations, so much so that deprivation of liberty represented a humanistic advance. Man generally flees, when he can, from pain and suffering. Punishment seeks to intimidate.

The deterrent effect of punishment, for its part, rests on the idea of the avoidability of the act. This avoidability would reside within human beings, who are also behind legal entities, in their capacity to foresee events, to not want or to want those events, and therefore to avoid them, to provoke them in certain circumstances, to manipulate them.

The theory of deterrence does not inhibit economic approaches to Law or to sanctions. This is because economic or psychological-behavioral strands also start from a view grounded in incentives and mechanisms of persuasion. People’s motivation is thus at the base of conduct. Afflictive effects derive from the intrinsic character of punishment itself.

Therefore, economic or behavioral approaches to Administrative Sanctioning Law, or to Criminal Law, presuppose the calculation of the cost-benefit relationship of sanctions versus conduct, or of the specific motivations of agents.

Depending on the regulated segment, penalties and offenses must be assessed under the most specific transdisciplinary metric applicable. In the capital markets, the national financial system or the system for the defense of free competition, there is no doubt that Administrative Sanctioning Law is strongly influenced by economic thought and by approaches permeated by market language.

Within prisons, in turn, the disciplinary law of maximum-security regimes perhaps has a stronger flow from the field of behavioral psychology or social security, without prejudice to economic interventions to strangle drug trafficking.

It is true that normativist functionalism maintains that intimidation would not be of the essence of punishment, insofar as punishment would be a form of reaffirmation of the legal order in force. That is, punishment is a reaffirmation of confidence in the normative system. It would not be the mission of punitive law to prevent harm to legal interests, but rather to confirm the validity of the norms.

However, what is perceived is that, in order to restore this confidence in the norms, it is necessary to impose an empirical harm. Punishment will always be an evil or a penalty, whatever its form. It is an attribute intrinsic to its concept. In this sense, the general deterrent function will be one of its functions, and this function has thus been reaffirmed by the case law of the STF in Brazil [4] .

More clearly, not every legal measure constitutes a sanction, for lack of punitive purpose. So-called contractual sanctions, for example, are not to be confused with sanctions strictu sensu. Therefore, rescission measures are not sanctions. Reimbursement measures likewise do not constitute sanctions, just as the so-called police power is not to be confused with the sanctioning power. Not to mention the so-called management measures, very frequent in the courts of accounts. Coercive measures and precautionary measures are likewise not to be confused with sanctioning measures.

[1] REsp 879.360/SP, Rapporteur Justice LUIZ FUX, FIRST PANEL, judged on 17/06/2008, DJe 11/09/2008.

[2] For all, and in a rather distant frame of reference, see REsp 1216190/RS, Rapporteur Justice MAURO CAMPBELL MARQUES, SECOND PANEL, judged on 02/12/2010, DJe 14/12/2010.

[3] See, in this regard, CASTRO, Renato de Lima. Colaboração Premiada e Improbidade Administrativa: Aspectos Fundamentais. Available at: <http://www.mprj.mp.br/documents/20184/1246489/Renato_de_Lima_Castro.pd. Accessed on February 15, 2020. In this regard, reading the aforementioned Technical Study number 01/2017 is essential.

[4] See, among many others, the following STF judgments that refer to the retributive function of punishment:, EP 12 ProgReg-AgR Rapporteur: Justice ROBERTO BARROSO, Full Court, judged on 08/04/2015, ELECTRONIC PROCEEDING DJe-111 DIVULG 10-06-2015 PUBLIC 11-06-2015; HC 122694, Rapporteur: Justice DIAS TOFFOLI, Full Court, judged on 10/12/2014, ELECTRONIC PROCEEDING DJe-032 DIVULG 18-02-2015 PUBLIC 19-02-2015.

FÁBIO MEDINA OSÓRIO – Doctor of Administrative Law from the Complutense University of Madrid. Master of Public Law from the Federal University of Rio Grande do Sul. President of the Commission on Administrative Sanctioning Law of the National OAB. Founding member of Idasan.