Article Brazil: Administrative Improbity Law Amended

On October 26, 2021, Brazilian President Jair Bolsonaro promulgated Law No. 14,230 (Lei No. 14.230, de 25 de outubro de 2021), amending Law No. 8,429 (Lei No. 8.429, de 2 de junho de 1992), which provides for sanctions to punish acts of administrative improbity. The authority for adopting such sanctions is provided for in article 37 of the Federal Constitution. (Constituição Federal art. 37(XXII)(§ 4).)

Among its various amendments, Law No. 14,230 applies new language to Law No. 8,429 to define administrative improbity as an intentional, willful, and conscious action perpetrated by a public agent or benefiting nonpublic agents. (Law No.  8,429, art. 1 (§§ 1–2).) As a result, without evidence demonstrating an individual’s intent to perpetrate an unlawful act, the individual’s activities and functions are not considered acts of administrative improbity. (Art. 1(§ 3).)

For example, following a request to impose sanctions on a defendant, the Public Prosecutor’s Office (Ministério Público) must submit an initial petition that includes documents and sufficient evidence demonstrating that the defendant intentionally committed an act of improbity. (Art. 17 (§ 6)(I–II).) If there are challenges to acquiring such information, the Public Prosecutor’s Office can provide the reasons for its inability to present this evidence. (Art. 17(§ 6)(I).) Definitions of administrative improbity in Law No. 8,429 lacked this language of intentionality.

The language of intentionality has also been added to articles, 9, 10, and 11, which discuss examples of administrative improbity. Article 9 details that illicit enrichment constitutes an act of administrative improbity when a public office, its functions, or its assets are intentionally used to obtain undue funds or advantages. Similarly, article 10 states that damage to public assets, such as through misappropriation, squandering, or destruction, constitutes an act of administrative improbity if committed through intentional actions or negligence.

Article 11 incorporates the language of intentionality into actions that violate the principles of public administration, such as “honesty, impartiality, and legality.” The law adds that appointing a spouse, partner, or relative to a leadership or advisory position in public functions can be considered an act of administrative improbity if proven to be intentional. (Art. 11(XI); art. 17(§ 6)(I–II).)

The Chamber of Deputies (the lower house of the Brazilian National Congress) rejected the Federal Senate’s amendment, which provided that evidence of unlawful intent was not needed for nepotism to be considered an act of administrative improbity.

The
Public Prosecutor’s Office has the sole authority to request the application of sanctions for committing administrative improbity (art. 17), which include new criminal sanctions for acts of administrative improbity provided by Law No. 14,230. The new law increases the maximum length for the suspension of political rights while decreasing potential fines. (Lei No. 8.429, art. 12.) Individuals who commit an offense may still lose their public position; however, this sanction may be applied only if the individuals are in the same or equivalent position as the one they held at the time of the violation. (Art. 12(§ 1.) A judicial authority, however, can remove the public agent from employment or a function if doing so is a necessary precaution to prevent additional illicit actions. (Art. 20(§ 1.) Under this law, the filing of an administrative improbity act will give original jurisdiction to the Public Prosecutor’s Office for all actions subsequently filed that have the same cause of action or the same object. (Art. 17(§ 5.)

Speaking about the emphasis of intent in administrative improbity, Deputy Carlos Zarattini, who was the spokesperson (relator) for the revision of Law No. 8,429, stated that including language of intent can reduce the possibility of public agents being accused of administrative improbity for actions that may be negligent and reckless but not dishonest.

Prepared by Elizabeth Marin, Law Library intern, under the supervision of Eduardo Soares, Senior Foreign Law Specialist

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Brazil: Administrative Improbity Law Amended. 2021. Web Page. https://www.loc.gov/item/global-legal-monitor/2021-11-09/brazil-administrative-improbity-law-amended/.

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(2021) Brazil: Administrative Improbity Law Amended. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2021-11-09/brazil-administrative-improbity-law-amended/.

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Brazil: Administrative Improbity Law Amended. 2021. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2021-11-09/brazil-administrative-improbity-law-amended/>.

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