6 ministers have already voted and trial will resume on the 5th; retroactivity can benefit accused or convicted politicians
The ministers of the Federal Supreme Court (STF) disagree on the possibility of the new Administrative Improbity Law retroacting to benefit accused or convicted politicians. The analysis of the case was interrupted on Wednesday (17.Aug.2022) and should be resumed at the session on Thursday (18.Aug).
Ministers Edson Fachin and Roberto Barroso voted for the total non-retroactivity of the new law. André Mendonça, Nunes Marques and Dias Toffoli voted in favor of retroactivity for open cases in the culpable modality (without intention). There are differences of understanding in the votes presented by each magistrate.
The rapporteur, Alexandre de Moraes, voted for the non-retroactivity of the new rule for cases already closed and with final conviction. For open cases, the magistrate argued that public agents prosecuted based on the previous law, but whose cases are still open, can no longer be punished for culpable improbity, since the new law revoked this type of sanction. In these cases, according to the minister, it will be up to each judge to analyze whether there is bad faith or eventual malice in the conduct of the public manager for the continuity of the process.
For cases with definitive conviction, in addition to Moraes, 3 ministers voted for the non-retroactivity of the new law: Nunes, Fachin and Barroso.
Minister André Mendonça disagreed. For him, convicted of wrongful acts of improbity can file a rescissory action to annul the conviction. Toffoli cast a broader vote in favor of retroactivity.
The new rule does not admit punishments for acts of culpable improbity and has shorter statute of limitations, leading to the extinction of processes that were not defined within 4 years after the lawsuit was filed.
Politicians such as the Speaker of the House, Arthur Lira (PP-AL), could benefit if the Court decides that the new law is retroactive. Other politicians who may benefit are the former governor of Rio de Janeiro Anthony Garotinho (União Brasil) and the former mayor of the Rio de Janeiro capital Cesar Maia (PSDB), vice-president Marcelo Freixo to the government of Rio.
The Court began analyzing the matter at the beginning of the month. Decides whether the new law, which does not admit punishments for culpable acts of improbity, can retroact to annul older convictions defined on the basis of the previous norm — which allowed sanctions for culpable improper acts. It also defines whether the call “intercurrent prescription” —when the deadline for the Judiciary to analyze a given case expires— it can be retroactive.
Magistrates also differ on the application of the new statute of limitations. So far, Moraes, Fachin and Barroso have voted against the extension of shorter deadlines for proceedings initiated under the previous rule. Mendonça, Marques and Toffoli were favorable.
Administrative impropriety is not a crime. This is a civil offense, not a criminal one. It occurs when public agents, such as politicians, practice inappropriate conduct, causing damage to the public administration for their own benefit. It can be punished with the loss of civil service and political rights.
On the other hand, acts of wrongful improbity, provided for in the previous legislation, but not in the new law, would be those committed without the intention of causing harm or illicit favor: cases that cause harm due to incompetence or inaptitude of the public agent, for example.
#STF #continues #differ #retroactivity #Misconduct #Law