Reform of the Improbity Law is inopportune
Article in O Globo, of 30/06/2018, arguing that the reform of the Administrative Improbity Law (Law 8,429/92) then under discussion was inopportune.
Translated from the original.
BY FÁBIO MEDINA OSÓRIO
29/06/2018 18:57 / updated 29/06/2018 18:58
There is a notable Commission of Jurists, established by the Speaker of the Chamber, Deputy Rodrigo Maia, for the reform of the Administrative Improbity Law (8,429/92). Despite the excellence of the jurists who make up the commission, I believe this is not the time to reform this law, but to apply the already consolidated case law and to demand greater unity from the Public Prosecution Service.
Frequent changes to legal texts bring legal uncertainty and case-law instability. It is known that the true rules arise from case law and not from abstract texts. The theory of precedents has even been adopted in the Brazilian model, through the system of the New Code of Civil Procedure.
Since the sub-constitutional legislation of the Constitution of 1824, improbity has been a crime of impeachable conduct. Only in 1988 did it gain a dual dimension: a criminal offense (crime of impeachable conduct) and an offense of administrative sanctioning law.
The STJ well delimited this legal nature of improbity as defined in Art. 37 of the Constitution and regulated in Law 8,429/92.
The late Justice Teori Zavaski was the greatest reference of the Brazilian Judiciary on the subject, applying, in his votes, both at the STJ and at the STF, criminal rules and principles to the administrative sanctioning law that governs administrative improbity actions.
The new bill reflects setbacks and inspires concern. It eliminates negligent improbity, for example, although the STJ requires gross negligence to hold managers liable for damage to the public treasury, without confusing gross negligence with mere everyday errors. By abolishing negligent improbity, managers who engage in seriously inefficient conduct may go unpunished, although the worldwide trend is to punish gross errors.
Sabino Cassese, the celebrated Italian jurist, maintains that corruption is born in disorganized environments permeated by gross errors. That is, conceptualizing improbity as a kind of public mismanagement makes it possible to punish gross errors, in addition to serious functional dishonesty. What reason do we have to become a backward country in this field?
The bill abolishes numerous sanctioning offenses, without plausible justification. The effects of these changes may seem imperceptible at first, but they could affect thousands of relevant proceedings.
The bill even enshrines some obvious points that are already in the case law itself: “an action or omission resulting from a reasonable interpretation of the law, regulation or contract does not constitute improbity”. The premise is correct, but there is no need to straitjacket, since the STJ’s case law has settled the thesis that not every illegality is to be confused with improbity.
The Improbity Law is part of the anti-corruption microsystem. The Law must be applied together with Law 12,846/13 and with criminal laws, currently allowing plea cooperation agreements, leniency agreements and conduct adjustment agreements, without any need for legislative change.
As for the right to compensation for non-pecuniary damages, I think an express provision for a command already won as a case-law rule is unnecessary and even harmful. It also raises a doubt: was it previously prohibited? Did it become possible only now, with the legislator’s express provision?
Without going into details here, and acknowledging the effort, good faith and quality of the members of the Commission of Jurists, I understand that this is not the moment to propose reform of the Administrative Improbity Law, but rather to reaffirm the fundamental guarantees and rights enshrined in the case law that has formed over its more than 25 years in force.
It is worth recalling, finally, that institutions such as the National Council of the Public Prosecution Service and the National Council of Prosecutors General of the Public Prosecution Services of the States and of the Union may perform normative functions aimed at the cohesion of the investigative and accusatory activities of the Brazilian Public Prosecution Service.
No legislative retrogression is necessary in the fight against public corruption in Brazil.
Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union