The (Supreme Federal Court) validated, this Thursday (28), by a majority, changes that restricted the possibilities of punishment provided for in the legislation.
In this way, only conduct already provided for in the text of the law may be held responsible. Before Congress approved the change, in 2021, the rule was used to punish managers more broadly, which generated complaints in political circles about legal uncertainty.
At the time, one of the arguments for changing the law was that of a “pen blackout” — a lack of qualified interested parties to occupy public roles due to the possibility of punishments for mismanagement. It is considered one of the main instruments for combating illicit acts carried out by public agents against the administration.
The STF judges a set of actions on the topic and also reaffirmed the understandings already established by the plenary, such as the need for intentionality in conduct for a process of this type. Unlike what happens in the criminal sphere, it does not provide for the possibility of imprisonment, but rather the loss of public office, suspension of political rights and compensation for losses.
There are three cases in the Supreme Court that deal with changes in legislation and almost 20 articles questioned. The actions are reported by ministers and . The trial began last September and was suspended following a request for a review — more time for analysis — by Moraes in the cases reported by Mendonça.
This Thursday, Minister Dias Toffoli asked to see only the point that debates whether convicted agents only lose their position if they are in the role in which they committed the conduct. The trial is expected to resume in June.
Among the main changes discussed are the relaxation of sanctions, the reduction of prescription periods, the loss of political rights for public agents who commit acts of improbity, among others.
Moraes stated that the law changed the logic of the section by transforming the list of conduct that could constitute improbity due to violation of principles into an exhaustive list. Before the reform, the text was open. But, for the minister, it was a legitimate legislative option, especially considering the seriousness of the consequences.
The president of the STF, minister, argued that the broader provision allows greater control over public administration. “I think that the sense of protecting probity involves a more elastic conformation, in order to adapt the control of the administration, which is the control of public affairs”, he said.
however, following the majority, stated that the punitive nature of the law demands more precision regarding conduct. “Perhaps some conduct could have been foreseen here, but the legislator did not do so. If we are here in the sphere of responsibility, punitive, administrative sanctioning law, the legislator did well in establishing closed types”, he said.
Also in the session, the court defined that shareholders, partners or directors of companies that receive indirect benefits from acts of administrative improbity must be held responsible.
In the debate on punishment in the case of indirect benefits, Moraes stated that there is not always illicit enrichment of those involved, but the legislation still provides for accountability.
Mendonça suggested, at this point, specifying that the understanding will not apply to cases that have become final — that is, concluded.
Also on Thursday, the court considered the action presented by ADI 6678, which asked to equate acts carried out intentionally (intentionally) with cases of failure, such as delay in rendering accounts, as prejudiced. The party contested the application of the penalty of suspension of political rights to culpable, that is, unintentional, conduct.
As this section had already been changed by law — the action was filed before the promulgation of the new text, in October 2021 —, the ministers understood that there was no longer a need to judge her and maintained the requirement that the conduct be intentional for liability.
