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Introduction
Brazil’s Administrative Misconduct Law (Law 8.429/92), which was significantly reformed by Law 14.230/2021, remains one of the primary tools of the Brazilian State in the fight against corruption, public mismanagement, and violations of the principles governing public administration. However, the concept of administrative misconduct, as we have argued in our scholarly works and reflections, goes far beyond mere acts of corruption or illicit enrichment. It is a mechanism that encompasses severe dishonesty and gross inefficiency, analyzed from a constitutional perspective, within a broader framework of sanctioning administrative law.
In this article, we propose an analysis of the decision by the Brazilian Supreme Court (STF) in ADI 4295, which reviewed the constitutionality of several provisions of Law 8.429/92, emphasizing the role of sanctioning administrative law in the misconduct regime. Based on our interpretation, we examine the decision in light of constitutional jurisprudence and its interaction with the principles of morality, legality, and efficiency, which are the central focuses of administrative misconduct in Brazil.
The Constitutional Concept of Misconduct and the 2021 Reform
Administrative misconduct, as set out in Article 37, §4º of the Brazilian Federal Constitution, requires public officials to conduct themselves with administrative probity and respect for the principles governing public administration, such as legality, impartiality, morality, publicity, and efficiency, with heightened standards. The concept of misconduct is not limited to corruption in its strict sense but also includes acts that, while not directly harming the public treasury, violate these principles and erode public trust in government institutions. The legislature has discretion to determine whether culpable acts should be penalized or not.
The reform introduced by Law 14.230/2021 sparked controversy by eliminating the culpable forms of administrative misconduct, focusing instead on intentional conduct. In our view, this reform reflects a legitimate choice by the legislature within a democratic framework, prioritizing the punishment of more serious, intentional misconduct over negligent acts that, while harmful to the treasury, do not involve bad faith or direct intent on the part of the public official.
The STF, when ruling on ADI 4295, upheld the constitutionality of this legislative choice, emphasizing that the Constitution allows the legislature the flexibility to define the scope of misconduct offenses. Therefore, by excluding culpable misconduct, the Brazilian legislature followed a trend of strengthening legal certainty and the strict principle of legality in sanctioning law.
Sanctioning Administrative Law: Origin and Application in Administrative Misconduct
Since the 1990s, we have advocated for the treatment of administrative misconduct as an offense within the scope of sanctioning administrative law. This branch of law, which has primarily developed in Europe and gained traction in Brazil through jurisprudential evolution, legislative reforms, and the strengthening of oversight mechanisms, seeks to punish administrative violations under a distinct legal regime, separate from criminal law, but governed by similar protective principles, such as proportionality, legality, and specificity.
Sanctioning administrative law aims to protect values like morality, efficiency, and legality in public administration through the application of penalties that may be imposed directly by the judiciary or executive authorities, with strict adherence to principles that are symmetrical with criminal law. Administrative misconduct, although not necessarily a crime, falls within this framework, as it demands a strong state response to ensure the proper functioning of public administration and to maintain public trust in public officials.
The 2021 reform reaffirms the administrative nature of misconduct offenses, consolidating the understanding that penalties for misconduct fall within the framework of sanctioning administrative law, even though procedurally they are handled in civil jurisdiction.
The STF, in ADI 4295, reinforced this view by confirming the independence of administrative and criminal spheres, highlighting that misconduct penalties may be applied autonomously without the need for a criminal conviction. This further underscores the punitive-administrative nature of administrative misconduct.
The Constitutionality of Penalties: Analysis of the ADI 4295 Ruling
In ADI 4295, the STF examined the constitutionality of provisions in Law 8.429/92 that allow for the application of severe penalties, such as removal from office, suspension of political rights, and prohibition from contracting with the government, even without proof of financial damage to the public treasury. The STF was clear in affirming that the protection of administrative morality goes beyond safeguarding public finances; it also involves upholding the principles that govern public administration, particularly legality, impartiality, morality, and efficiency.
In the opinion of Justice Marco Aurélio, the rapporteur, it was made explicit that penalties for administrative misconduct, contrary to the arguments made by the petitioner, do not necessarily depend on proof of harm to the public treasury. Misconduct, above all, is a violation of administrative principles, and its punishment serves to protect broader public interests, including public confidence in the State’s administrative apparatus.
Additionally, the ruling reinforced the idea that the penalties provided for in Law 8.429/92 are independent of other legal domains, such as criminal and civil law. This means that even if the public official has not been convicted of a crime, they can still be sanctioned for administrative misconduct based on the criteria set forth in the law. The STF’s affirmation of this independence of spheres is one of the pillars of sanctioning administrative law, ensuring a swift and effective response to serious violations of official duties. Of course, this independence does not disregard the principle of non bis in idem.
The Role of the Public Prosecutor and Judicial Oversight in Administrative Misconduct
Another significant aspect of the ADI 4295 ruling was the discussion concerning the role of the Public Prosecutor’s Office in overseeing administrative misconduct cases. Law 8.429/92 provides that the Public Prosecutor’s Office, along with the Courts of Accounts, has the right and duty to oversee both administrative and judicial processes involving the investigation of misconduct, and may even initiate legal action and assist in investigating damages.
The petitioner in this case argued that this provision violated the separation of powers by allowing the Public Prosecutor’s Office to intervene in administrative processes. However, the STF categorically affirmed that the involvement of the Public Prosecutor is a fundamental safeguard for ensuring impartiality and objectivity in fact-finding, even in administrative proceedings. According to the rapporteur, this oversight by the Public Prosecutor’s Office does not violate the separation of powers but rather strengthens control and transparency in the application of misconduct penalties.
The involvement of the Public Prosecutor in misconduct cases is essential to ensure that investigations and sanctions are based on legal and technical criteria, thus mitigating the risk of political interference or arbitrary decisions. Judicial oversight was also reaffirmed as an important safeguard to ensure that sanctioning administrative law is applied fairly and proportionally, in accordance with constitutional principles.
Extending Penalties to Legal Entities: Preventing Fraud and Protecting Public Assets
ADI 4295 also raised an important issue regarding the application of misconduct penalties to legal entities controlled by public officials. Law 8.429/92 provides that companies in which a public official is a majority shareholder may be penalized with the prohibition of contracting with the government or receiving tax and credit benefits if the official has been convicted of misconduct.
The constitutionality of this provision was challenged, but the STF upheld it as a legitimate and necessary measure to prevent fraud and ensure the effectiveness of misconduct penalties. The Court highlighted that applying penalties to companies controlled by public officials is essential to prevent these officials from using private companies as tools to circumvent the legal consequences imposed by law. The STF’s decision ensured that penalties are applied effectively and proportionally, protecting public assets against fraudulent schemes, without compromising the importance of the non bis in idem principle.
One of the significant contributions of the reform brought by Law 14.230/2021 was the consolidation of the independence of administrative penalties from criminal law, while respecting the non bis in idem principle.
By reaffirming the administrative nature of misconduct offenses and their autonomy from other legal spheres, the reform promoted by Law 14.230/2021 represented a major advancement, as it consolidated the independence of administrative and criminal spheres. The recognition that penalties for administrative misconduct are materially administrative and procedurally civil was reaffirmed by the Supreme Court in ADI 4295, strengthening the autonomy of sanctioning administrative law in relation to criminal law.
This independence is essential to ensure that misconduct penalties are applied efficiently and swiftly, without depending on the outcome of criminal proceedings, which often take years to resolve. Sanctioning administrative law, as an autonomous branch of public law, aims to protect public administration from serious offenses that compromise the morality, legality, and efficiency of public services, without the need for criminal liability to be established.
The STF’s ruling in ADI 4295 confirmed that administrative misconduct may be penalized autonomously, without the need for a prior criminal conviction. This is crucial for the effective functioning of control mechanisms in public administration, ensuring that public officials who violate the duties of probity are held accountable proportionately and promptly, regardless of the outcome of any related criminal proceedings.
Furthermore, ADI 4295 reaffirmed that administrative penalties are not criminal in nature, even if they may have similar effects, such as removal from office and suspension of political rights. These penalties are intended to protect public interests and maintain the integrity of public administration, in accordance with the principles of sanctioning administrative law.
The Elimination of Culpable Misconduct in the Administrative Misconduct Law and Its Implications
One of the most significant changes introduced by Law 14.230/2021 was the exclusion of culpable forms of administrative misconduct. Prior to the reform, Law 8.429/92 allowed for the punishment of negligent acts, where public officials acted without intentor bad faith, but with negligence, imprudence, or incompetence. However, the new law limits administrative misconduct penalties to intentional (dolous) actions, excluding culpable (negligent) acts, which has sparked debate in both legal doctrine and jurisprudence.
The justification for this change lies in the principle that administrative misconduct penalties should be reserved for the most serious offenses, those that involve a conscious violation of the duties of probity, morality, and efficiency. The legislature recognized that punishing public officials for mere negligence, without intent, could create legal uncertainty and potentially discourage public officials from making decisions in complex or high-risk public policy areas.
While the exclusion of culpable misconduct has been criticized, particularly on the grounds that serious inefficiency should also be subject to penalties, the STF upheld this legislative choice as constitutional. The Court emphasized that the Brazilian Federal Constitution grants the legislature the discretion to define the scope of misconduct offenses, including the ability to limit penalties to intentional actions.
In the STF’s view, the choice to punish only intentional misconduct does not violate the principle of administrative morality. Moreover, the legislature may, in the future, reintroduce penalties for culpable misconduct if deemed necessary, much like the continued existence of the crime of “culpable embezzlement” (peculato culposo) under the Penal Code.
What is crucial, as we see it, is that the punishment of administrative misconduct aligns with the principles of proportionality and legal certainty, avoiding disproportionate or arbitrary types of penalties that could compromise the principles of legality, legal security, or the dignity of the individual.
Proportionality of Penalties and Due Process of Law
Another central point highlighted by the STF is the reaffirmation of the principle of proportionality as one of the cornerstones of sanctioning administrative law. The Court consistently emphasizes that penalties for misconduct must be applied in proportion to the severity of the offense, taking into account the specific circumstances of the case and the extent of the harm caused to public administration.
In this regard, the Court noted that the penalties provided in Law 8.429/92, such as removal from office, suspension of political rights, and prohibition from contracting with the government, are severe and, therefore, should be applied with caution, always respecting due process of law. The STF reaffirmed that due process not only ensures the right to defense and an adversarial proceeding, but also guarantees that penalties are imposed fairly and in a balanced manner, without excesses or arbitrariness.
The decision in ADI 4295 also reiterated the importance of the principle of strict legality in sanctioning law. The principle of legality requires that offenses be clearly defined by law, ensuring that public officials know precisely what conduct is considered misconduct and what penalties may be applied in case of violation. This principle is fundamental for legal certainty and for the predictability of state actions within the sanctioning framework.
The Constitutionality of Penalties Without Proof of Damage
Another relevant point addressed in the STF’s decision in ADI 4295 was the analysis of whether penalties for misconduct can be imposed without proof of financial damage to the treasury. The Court emphasized that the defense of administrative probity is not limited to protecting public finances in their financial dimension. Administrative misconduct is, first and foremost, aimed at safeguarding the fundamental principles governing public administration, such as legality, morality, and efficiency.
In this sense, the STF reaffirmed that it is possible to impose penalties for misconduct even in cases where there is no evidence of material harm to the public treasury, as long as it is proven that the public official has gravely violated the principles of public administration. The Court ruled that the defense of administrative morality and the prevention of improper conduct are legitimate objectives of the State, justifying the imposition of penalties regardless of direct financial loss.
This interpretation is consistent with the logic of sanctioning administrative law, which is not limited to punishing conduct that causes financial harm, but also seeks to sanction acts that compromise the ethical and functional integrity of public administration. The focus, therefore, is on ensuring compliance with the duties of probity, morality, and efficiency, which are essential pillars for the proper functioning of the State.
Final Considerations: The Legacy of ADI 4295 for Brazilian Administrative Law
The judgment of ADI 4295 by the STF represents a significant milestone in consolidating the legal framework for administrative misconduct in Brazil. The decision reaffirmed the constitutionality of key provisions of the Administrative Misconduct Law, validating the legislative choice to limit penalties to intentional misconduct and recognizing the autonomy of sanctioning administrative law in relation to criminal law.
ADI 4295 also reinforced the importance of the Public Prosecutor’s Office and the Courts of Accounts in overseeing misconduct cases, ensuring that investigations are conducted impartially and based on legal and technical criteria. The participation of these oversight bodies is crucial to ensuring that penalties for misconduct are applied fairly and proportionally, always in defense of the public interest.
Another important legacy of the decision was the recognition that misconduct penalties can be imposed independently, without the need for proof of financial harm to the public treasury, as long as the public official has gravely violated the principles of public administration. This understanding strengthens the preventive and ethical dimensions of the Administrative Misconduct Law, which aims to protect not only the financial assets of the State but also the moral and functional integrity of public administration.
Finally, ADI 4295 consolidated the understanding that sanctioning administrative law is an effective and necessary instrument for preserving morality, legality, and efficiency in public administration. By reaffirming the independence of spheres and the proportionality of penalties, the STF contributed to the strengthening of mechanisms for controlling and combating corruption in Brazil, ensuring that public administration operates in accordance with the highest standards of ethics and responsibility.
The decision also highlighted the importance of continually improving the legal framework surrounding administrative misconduct, respecting constitutional limits and fundamental guarantees, while maintaining an unwavering commitment to defending morality and efficiency in public administration. In this way, the judgment of ADI 4295 represents a significant advancement for Brazilian administrative law and a strengthening of the country’s democratic institutions.
Author: Fábio Medina Osório