A decision last week by the Federal Supreme Court (STF) opened up the possibility for those convicted of administrative improbity with final and unappealable proceedings – that is, with no further possibility of appeal to reverse the sentence – to be freed from punishments, which may include fines. and compensation for losses caused to public coffers.
By 7 votes to 4, the majority of ministers considered the culpable form of the act of administrative improbity to be unconstitutional. It means that, if the misuse of public resources was committed without the intention of harming the treasury, the person responsible could not have been convicted. Conviction for impropriety, the ministers decided, can only occur when there is intent, that is, “free and conscious will to achieve the illicit result”.
For the Public Ministry of São Paulo, this new understanding could result in the reversal of thousands of convictions for culpable misconduct handed down over almost 30 years.
In 2021, Congress approved a review of the Administrative Improbity Law and ended the culpable form of improbity. In 2022, the STF validated this change, but defined that it would be valid from now on. At the time, the majority of ministers decided that final and unappealable convictions in the guilty mode should be maintained. It is considered culpable when, despite there being no intention to cause the damage, there was malpractice, recklessness or negligence on the part of the agent. Until then, the law had opted for this greater rigor.
In cases where the process was still ongoing, the Court relented by establishing that the defendants could be acquitted.
Now, following Dias Toffoli’s vote, the majority of ministers judged that “intention is necessary for the configuration of any act of administrative improbity, so that the culpable type of act of administrative improbity provided for in arts. 5th and 10 of Law No. 8,429/92, in its original wording”.
This last expression – “in its original wording” – indicates that the STF considers unconstitutional sections of the original text of the improbity law that, before 2021, provided for the possibility of someone being convicted for the misuse of public resources even when there was no desire of damaging public assets, but a serious error in money management.
With the Court’s new decision to consider this type of conviction unconstitutional, the possibility is open for anyone convicted of culpable misconduct to request a review of their sentence and free themselves from the conviction and punishments, such as fines and compensation.
Ministers Flávio Dino, Alexandre de Moraes, Cristiano Zanin, Nunes Marques, Luiz Fux and Gilmar Mendes followed Toffoli’s vote. Ministers Luís Roberto Barroso, Edson Fachin, André Mendonça and Cármen Lúcia disagreed.
Consolidated convictions should be maintained, according to Barroso
In his dissenting vote, Barroso made a reservation regarding definitive convictions, which should be maintained, in his view. He recalled that, in 2022, when validating the law that ended the culpable modality, he stated that it was possible under the Constitution.
“With the current wording of Law No. 8,429/1992, given by Law No. 14,230/2021, the presence of intent is required to characterize any act of administrative improbity. The Federal Supreme Court reinforced this thesis by validating the legislative change that extinguished the culpable modality and determining its application to acts carried out under the previous law and to ongoing processes in which there was no final and unappealable decision”, he wrote.
“This does not mean, however, that intent is necessary to characterize an act of administrative improbity in any case. This Court maintained the final convictions for unlawful and negligent acts prior to Law No. 14,230/2021. Furthermore, the culpable type may eventually be reestablished, since its current non-existence results from a legitimate legislative option, but not from an imposition made by art. 37, § 4, of the Constitution”, he continued.
André Mendonça voted in the same direction. “In consideration of the time for which the interpretation of the culpable modality in the imputation of improbity was in force, I opt for the editorial alternative suggested by e. Minister Luís Roberto Barroso”, wrote the minister in the vote.
Fachin agreed that final and unappealable convictions should be maintained. He only explained that, in ongoing cases, the defendants could be acquitted. The reason is that, as this offense no longer exists in legislation, it would not be possible for a judge to condemn someone for it.
Cármen Lúcia also followed Barroso, but all these divergent votes were defeated.
For Toffoli, serious guilt is not sufficient reason for conviction
Toffoli had the longest vote and, in it, argued that a conviction for misconduct implies the loss of political rights and public function of the agent responsible. Due to the seriousness of the consequences, the conduct should also be proportionately serious – hence the need for intent; error or mistake in the management of resources, even if they result in losses, should not lead to conviction. Reimbursement to the treasury could be obtained through conviction in other types of proceedings, such as popular actions or public civil actions.
“It only constitutes an act of administrative improbity, be it of any type, if the agent’s intent is present (a subjective element closely related to the ideas of dishonesty, disloyalty or bad faith), his guilt, even if serious, not being sufficient”, wrote in the vote.
When observing the way Dias Toffoli’s winning vote turned out, members of the Public Ministry consulted by the report pointed to the risk of annulment of the convictions.
Before the end of the trial, which took place virtually (with only written votes), the Attorney General of São Paulo, Paulo Sérgio de Oliveira e Costa, sent a memorial to the STF in which he pointed to the risk of reversal of “ thousands” of convictions.
He asked the Court to modulate its effects, in order to preserve definitive convictions, exactly to follow the 2022 precedent. “Even after more than thirty years since the publication of the norm, the Supreme Court has not, to date, seen the unconstitutionality of the culpable form of the illegal act”, wrote the head of the MP-SP.
It will now be up to Toffoli to draft the ruling, the document that formalizes the decision and serves as the basis for applying it to specific cases that are being processed in court. If he does not make any reservations regarding final and unappealable convictions, following the 2022 precedent, the way will be opened for convicts to request the reversal of their sentences, on the grounds that they were convicted of a type of offense considered unconstitutional.
One of the prosecutors consulted stated, with reservation, that due to the 2022 precedent, which maintained final and unappealable convictions, this should not occur, in respect for “res judicata”, the principle according to which definitive decisions must be maintained for legal certainty. .
In any case, after the publication of the ruling, it will still be possible to file an appeal, called a motion for clarification, to better clarify how these processes end with a conviction.
São Paulo prosecutor Roberto Livianu, president of the Instituto Não Aceito Corrupção, criticized the STF’s decision to consider the culpable modality unconstitutional. For him, the culpable modality is legitimate and constitutional, because the purpose was precisely to demand zeal and competence from the public administrator or politician (a mayor or governor, for example) when handling public money.
If he made a serious mistake, even without the proven intention to deviate, conviction for misconduct would imply the loss of his position and the revocation of his political rights – in addition to leaving office, he would be ineligible for another 8 years.
“I think that the warnings made by Minister Barroso are very relevant, because in 1992 [quando foi editada a Lei de Improbidade Administrativa]the legislator’s option to punish impropriety based on guilt was absolutely legitimate, within the possible options, and this was done within the limits of the Constitution. In 2021, this was modified, if chosen to change. But there was no type of affront to the Constitution [antes]. I think that in this new decision there is a very high risk of impunity”, he stated.
In the judgment on improbity, the STF judged the regularity of the hiring of lawyers without bidding by public bodies. The ministers considered that this can no longer be treated as improbity if the service cannot be performed by civil servants, if the price is compatible with the professional responsibility required by the case and with the average amount charged by the law firm in previous similar situations.
