The First Panel of the (Superior Court of Justice) unanimously decided to acquit former judge Maurizio Marchetti, from the Labor Court in Atibaia (SP), convicted based on the old wording of the Administrative Improbity Law.
The judge was removed from office in 2006.
On November 18, the panel judged a public civil action to be “completely unfounded” as it understood that “the conduct attributed to the defendant was characterized based on a revoked rule” (article 11 of the law).
“Although the intentional illegality of the conduct was recognized by the ordinary courts, the act no longer constitutes administrative improbity under the new legal wording”, voted the rapporteur, minister Sérgio Kukina.
Marchetti says that, “being a judge, he always trusted that before a calm and impartial court, even if it took time, justice would be done.” He was represented by lawyers Mauro Roberto Gomes de Mattos and Rafael de Moura Campos.
Ministers Gurgel de Faria, Paulo Sérgio Domingues and Benedito Gonçalves accompanied the rapporteur. Impeached, Minister Regina Helena Costa.
In 2018, Marchetti requested voluntary retirement after 41 years of social security contributions, which were regularly granted. “What I was asking is that my career not be tarnished,” said the former judge.
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The former judge was also responsible for ordering coercive conduct of a witness; issuance of subpoena warrants without observing due legal process and issuance of an arrest order considered abusive against an employee of the Brazilian Bar Association.
Appeals from the Union and the Federal Public Ministry were prejudiced in the STJ’s judgment.
The Union maintained that Law no. 14,230/2021 does not provide for its retroactive application, being inapplicable to acts of misconduct carried out under the auspices of previous legislation. The new article would represent insufficient protection for public assets. In 2005, the Sheet
published that Marchetti was the target of an extraordinary correction, an inspection by the TRT-15 internal affairs department, requested by the Bragança Paulista subsection of the OAB-SP.
For the dismissed judge, the correction of the court’s inspector, Luis Carlos Sotero Cândido da Silva, whom he accused of employing the woman in his office. The appointment was annulled by the TCU.
Sotero denied retaliation. He said he complied with the OAB’s request and did not ask for the judge’s removal, but only a disciplinary sanction, and that the decision was made by the TRT plenary. Sotero died in July 2020.
In the appeal, Marchetti maintained that the conviction was based exclusively on the repealed wording of the law and that “the basis for the conviction no longer exists”.
He further argued that, even if there were any remaining hypotheses of improbity, “the current sanctions no longer authorize loss of office or suspension of political rights.”
As a third point, he raised the existence of two criminal actions filed due to the atypicality of the same facts, in the TRF-3, under accusations of malfeasance.
Kukina noted that “the new wording of the legal provision now provides for a comprehensive list of acts of administrative improbity, no longer allowing liability for generic violations of public administration principles.”
“It is wrong to set or confirm a sentence based on a rule that no longer exists.”
“Although the defendant has adopted abusive conduct in his role as a judge, they do not fit into the exhaustive list of article 11.”
“There is no longer any normative correspondence to justify illegal conduct under the terms of the exhaustive list of current article 11 of the Administrative Improbity Law”, decided the STJ.
REsp 1.567.829/SP
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