The new Administrative Misconduct Law (No. 14,230/2021) significantly revised the previous legal discipline. In addition to modernising the legislation, bringing it closer to the regime found in other jurisdictions, such as the United Nations Convention Against Corruption (Decree No. 5,687 of 31 January 2006), the legislator’s intention was to conciliate greater legal certainty for those under investigation with the rigorous investigation and punishment, observing the constitutional safeguards.
The new discipline of improbity seeks to limit excesses found in the application of the previous statute, that, instead of contributing to an increase in probity in the state, often ended up frustrating or reducing the scope of the law. Recurring examples include decrees of unavailability of assets at the start of the process, in amounts far greater than the potential damage caused by the act under investigation, freezing of financial assets essential to the investigated party’s subsistence, etc. For this reason, one of the most remarkable features of the new law is the adoption of a more protective bias in the investigation.
Among the main changes are the requirement of specific intent to establish improbity, the limitation on freezing assets and the possibility of paying debts in instalments. These changes aim to avoid disproportionate punishments and ensure that liability only occurs in cases where there is effective proof of illegal conduct and intent on the part of the agent.
In addition, the prohibition of ex officio review of judgements that have concluded dismissal or extinction is also on the list of the most relevant innovations.
The institute of ex officio review determines the obligation to refer certain decisions to a court for review, regardless of whether the interested party files an appeal. In other words, the law establishes that in certain specific cases, such as the judgements of administrative misconduct acts, the first instance decision must be submitted for analysis by a court in order to guarantee uniform jurisprudence and the correct application of the law.
Following on from the necessary interpretations to create paradigms for the application of the new law, the Superior Court of Justice assigned three special appeals from the Minas Gerais Court of Justice (REsp 2117355, 2118137 and 2120300) under the rite of repetitive appeals, in Theme 1,284, to assess whether this prohibition is also applicable to judgements handed down before the new law came into force and which are currently awaiting re-examination by the courts.
For the defendants, the judgement has the potential to represent greater legal certainty, since it would be rarer for judgements of dismissal to be reformed and for the action of improbity to be extinguished.