The (Supreme Federal Court) expanded, this Wednesday (24), the scope of loss of function to public agents convicted of administrative improbity. According to the decision, in cases where the judge understands that the politician or civil servant should not lose his position, the decision must be justified.
In the same session, the board also vetoed the discount on the penalty of suspension of political rights and defined that the sanction begins to be valid after the definitive conviction for improbity. It also decided that the freezing of assets could reach the value of illicit enrichment, to guarantee the reimbursement of public money.
The court resumed this Wednesday afternoon questioning several sections of the . The board should return to the topic this Thursday (25).
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.
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.
Among the main changes discussed are the relaxation of sanctions, the reduction of prescription periods and the loss of political rights for public agents who commit acts of improbity, among others.
In May, the minister asked to see only the point that debated whether convicted agents only lose their position if they were in the role in which they committed the conduct. His proposal, presented this Wednesday, prevailed.
The wording of the 2021 law established that the loss of public service should only affect the position of the same nature occupied at the time of the infraction, and could be extended to other positions on an “exceptional basis”.
Toffoli proposed reversing the logic. According to him, conviction for misconduct must result in the loss of all public ties that the agent has at the time of the sanction, unless there are very specific justifications for not doing so.
“Many times the manager, as a manager, committed an act of impropriety, but he is an excellent university professor at a federal university, at a public state university. And in this way he may have preserved, as long as it is justifiable, to the extent that the judge justifies it, the maintenance of that office, that public function”, stated the minister.
“This preserves the idea that was brought up in some votes that, in fact, the act of misconduct is not in relation to the position, but in relation to the agent, the person who commits it”, said Toffoli, when proposing that the general rule be the loss of position.
The suggestion was welcomed by ministers André Mendonça and Alexandre de Moraes, rapporteurs for the processes under discussion. For them, the interpretation prevents fraud against the law, such as when agents abandon commissioned positions to return to parliamentary mandates without suffering the consequences of losing their role.
The collegiate also understood that the provision that provided for a discount on punishment according to the time in which the first decision to suspend political rights was made could generate impunity. According to the established understanding, only a definitive conviction generates punishment.
Minister Cármen Lúcia criticized the attempt created by the legislation to reduce the time of punishment.
“There is no way to give effect to what does not exist until the final judgment. Here it really is an impossibility. We already have an impossible crime. Once the penalty exists, it can no longer be executed. They created an impossible penalty,” he said.
At another point, the ministers dealt with the articles on the unavailability of assets, a measure designed to ensure reimbursement to the treasury in the event of conviction. The STF removed the requirement to demonstrate the “danger of irreparable damage” as the sole condition for this type of measure.
Furthermore, the freezing of assets can now cover not only the damage to the treasury, but also the value of the illicit enrichment.
In previous sessions, the court validated, by 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.
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.
Also in the May 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.
