This article aims to study the introduction of the non-prosecution agreement in civil matters within the context of administrative misconduct and its recent regulation by Law No. 14.2030/2021, with the insertion of Article 17-B into the General Law on Administrative Misconduct.
Before delving into the history of non-prosecution agreements in civil cases, a brief contextualization of consensual agreements within the Brazilian legal system, and specifically in the context of administrative misconduct, will be provided.
Next, the introduction of the non-prosecution agreement in civil cases by Law No. 13.964/2019 and the legal uncertainty caused by the lack of minimal regulation of the institute will be outlined.
Finally, a brief analysis will be made of the regulation of the institute by Law No. 14.2030/2021 and the sufficiency of these provisions for the effectiveness of the institute.
Consensualism in Law No. 8.429/1992
In the last decade, submission to the Judiciary has ceased to be seen as the only and main way to resolve disputes, and the Brazilian legal system has begun to strengthen techniques and instruments of consensual resolution, a technique in which the parties seek to resolve the conflict through dialogue, with reciprocal sacrifices in favor of the other party's interests.
In the field of administrative misconduct, the issue was controversial for a longer time, since, for practically the entire duration of Law No. 8.429/1992, there was an express prohibition on the consensual resolution of disputes by the rule inscribed in § 1 of article 17 of the aforementioned legal instrument, which prohibited the use of transaction, agreement or conciliation.
The existing prohibition on negotiation was consistent with the context of the time when the law was enacted, a scenario in which a closed idea of public interest prevailed and, in procedural terms, negotiation procedures were rarely used and judicialization was presented as an effective means of punishing and preventing illegal acts.
The history of Law No. 8.429/1992 has been marked by excessive litigation and delays in trials.
Data obtained by the National Council of Justice indicated that, in December 2013, there were a total of 8.183 (eight thousand one hundred and eighty-three) cases, including those already judged, pending judgment, and recently filed, and that the average duration observed between the filing and the final judgment of the cases was just over four years.
Another relevant piece of data is that, in almost 90% of the cases analyzed, the aforementioned judicial body reported that there was no effective compensation for the damage caused.
Given this scenario and the influence of negotiation experience in other branches of sanctioning law, consensus has come to be seen as a means of achieving greater effectiveness in protecting administrative probity, through a dialogued search for conflict resolution, with reciprocal concessions in favor of the public interest.
In this context, Provisional Measure No. 703/2015 was enacted, which temporarily allowed negotiation in the field of administrative misconduct by revoking the prohibition contained in § 1 of Article 17 of Law No. 8.429/1992.
The failure to convert this provisional measure into law reinstated the effects of the aforementioned provision of Law No. 8.429/1992 and created a scenario of enormous legal uncertainty for the consensual actions that were emerging under the legal provision.
In legal doctrine, overcoming the prohibition was a controversial topic, but in practice, consensual instruments continued to be used in the field of administrative misconduct, as exemplified by the Public Prosecutor's Office's provision for the possibility of negotiating on the matter through the adoption of a conduct adjustment agreement based on Resolution No. 179/2017 of the National Council of the Public Prosecutor's Office.
With the enactment of Law No. 13.964/2019, popularly known as the Anti-Crime Package, there was an amendment to § 1 of Article 17 of Law No. 8.429/1992, and the controversy regarding the possibility of consensual resolution of disputes in the context of administrative misconduct was ended with the designation of the non-prosecution agreement as the appropriate legal instrument.
Legal uncertainty surrounding the introduction of non-prosecution agreements in civil cases.
Overcoming the prohibition on the use of consensual methods represented the modernization of the sanctioning system of Law No. 8.429/1992 and the path to achieving greater effectiveness in protecting administrative probity, in line with the procedural perspective of valuing self-composition in the resolution of disputes, brought about by the Code of Civil Procedure (Law No. 13.105/2015), as well as other legislation that makes up the microsystem for combating acts harmful to the Public Administration and already dealt with consensual methods, highlighting the delineation of the institute of plea bargaining by Law No. 12.850/2013 and the regulation of leniency agreements (Article 86 of Law No. 12.529/2011; and Articles 16 and 17 of Law No. 12.846/2013).
The introduction of the non-prosecution agreement in civil matters into the legal system, however, did not eliminate the legal uncertainty surrounding consensual settlements in the field of administrative misconduct, as it was not accompanied by the establishment of minimum parameters for its applicability.
The presidential veto addressed the procedure for entering into agreements (Article 17-A, §§ 1, 2, 3, 4 and 5), which would have been included in the General Law on Administrative Impropriety by the Anti-Crime Package, because it was considered unjustifiable to grant exclusive legitimacy to the Public Prosecutor's Office to enter into agreements, without including those then jointly entitled to bring actions for administrative impropriety, and only the possibility remained for the parties to request the judge to interrupt the time limit for contesting for a period not exceeding 90 (ninety) days.
In this context, doubts remained regarding the legitimacy of entering into the agreement, the circumstances under which it was applicable, the moments in which it could be entered into, the need for judicial approval, among other formalities.
Given the legal gap and the existence of draft reforms to the General Law on Administrative Impropriety currently being processed in the National Congress, it was expected that the issue of legal certainty in non-prosecution agreements in civil cases would be the subject of legislative deliberation.
While there was no legal regulation, it fell to those with standing to bring an action for administrative misconduct to implement the institute within their respective spheres, mentioning, by way of example only, the drafting of Guidance Note No. 10/2020 by the Federal Public Prosecutor's Office, and Normative Ordinance AGU No. 18/20211.
The effectiveness of the institute, however, was compromised because the isolated regulation by each of the authorized entities did not bind the other co-authorized entities and each of their branches, which had the authority to issue their own regulations.
This scenario undermined predictability and legal certainty in negotiations and, consequently, contributed to the low attractiveness of the term for those accused and investigated for acts of administrative misconduct.
Because of this factor, the non-prosecution agreement has not yet had the expected impact on protecting administrative probity.
For example, according to data provided by the Brazilian Public Prosecutor's Office Yearbook, the Public Prosecutor's Office entered into 138 (one hundred and thirty-eight) non-prosecution agreements in civil cases in 2020, and in 2021, this number reached 210 (two hundred and ten). These figures are not very significant, considering that administrative misconduct is the most recurring theme in Civil Inquiries and Preliminary Investigations dealing with civil matters, with 6.270 (six thousand, two hundred and seventy) proceedings underway, according to data from the National Council of the Public Prosecutor's Office.
The expectation of regulation of the non-prosecution agreement in civil cases was only confirmed with the publication of Law No. 14.230/2021, which implemented a series of changes to Law No. 8.429/1992.
Regulation by Law 14.230/2021
When reforming the General Law on Administrative Impropriety, the legislator, through the provisions of article 17-B, filled a legal gap and established prerequisites for entering into a non-prosecution agreement in civil matters and circumstances to be observed by the party entering into the agreement.
The main new features included explicit provisions regarding standing to enter into the agreement, the essential results it requires, the appropriate time for its execution, the need for judicial approval, the requirement to hear from the injured legal entity, and the participation of the competent Court of Auditors.
The authority to enter into the agreement was granted exclusively to the Public Prosecutor's Office, which also became the sole entity authorized to file the lawsuit.
This change, however, is suspended by a monocratic decision, ad referendum, of the Plenary of the Supreme Federal Court, issued by Minister [Name]. Alexandre de Moraes in the proceedings of ADIs 7.042/DF and 7.043/DF.
The outcome of a non-prosecution agreement must necessarily include full compensation for damages and the return of any undue advantage obtained to the injured legal entity.
Furthermore, the legislator foresaw the possibility of agreeing on the adoption of internal mechanisms and procedures for integrity, auditing, and incentives for reporting irregularities, as well as the effective application of codes of ethics and conduct within the legal entity, if applicable.
It was established that the agreement may be entered into during the investigation of the wrongdoing, in the course of the administrative misconduct action, and at the time of execution of the conviction, with judicial approval being required regardless of when the agreement is entered into, and approval by the competent Public Prosecutor's Office body responsible for reviewing motions to close civil investigations only when the agreement is entered into before the filing of the action.
The legislator established that hearing the injured party is indispensable, and, for the purpose of determining the amount of damage to be compensated, the participation of the competent Court of Auditors was stipulated as necessary, which must express its opinion, indicating the parameters used, within a period of 90 (ninety) days.
According to the legal text, the personality of the dishonest agent, the nature, circumstances, seriousness and social repercussions of the conduct, as well as the advantages for the public interest in the swift resolution of the dispute, must be considered. In the event of non-compliance with the agreed-upon terms, the investigated or accused party will be barred from entering into a new agreement for a period of 5 (five) years.
The new provisions regarding non-prosecution agreements in civil cases, while representing progress in regulating the institution simply by filling a legal gap, do not resolve the legal uncertainty because they are not exhaustive.
It is worth highlighting the attempt to rationalize and modernize the institution, with the attribution of exclusive legitimacy to the Public Prosecutor's Office, the provision for judicial approval as necessary, and the possibility of correlation with integrity policies. However, the legislator used vague terms and failed to specify the procedure and the consequence of non-compliance with many of the formalities foreseen.
In this sense, examples include the absence of guidelines on the limits imposed on the court in judicial approval, the need for the interpreter to assess the agent's personality, as well as the nature, circumstances, seriousness, and social impact of the act of misconduct, without an objective indication of the circumstances under which a non-prosecution agreement is applicable.
Similarly, there is a lack of established deadlines and procedures for the necessary hearing of the injured party and the possible consequences of silence or disagreement regarding the terms of the agreement, as well as the provision for the necessary participation of the competent Court of Auditors to determine the amount due as compensation, unaccompanied by provisions regarding any controversy over said amount and delays in complying with the procedure.
Conclusion
Given the subjectivity and legal loopholes observed, as well as the suspension of the provision that granted exclusive standing to the Public Prosecutor's Office to enter into and file the action, it can be inferred that the innovation brought about by Law No. 14.230/2021 is insufficient to end the legal uncertainty in the implementation of the non-prosecution agreement, since the framework of internal regulations for each of the active parties entitled to bring the action and, indeed, for each branch of their bodies, will remain.
This variety of regulations, as already mentioned, undermines the effectiveness of the institution, since it reduces the predictability and legal certainty of consensual action, and consequently diminishes the attractiveness of the agreement for those investigated or accused of administrative misconduct.
Given this scenario, it is clear that the implementation of the non-prosecution agreement in civil cases still requires greater attention from the legislator so that the instrument adds effectiveness to the protection of administrative probity.
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References
BRAZIL. Attorney General's Office. Normative Ordinance AGU No. 18, of July 16, 2021.
BRAZIL, Yearbook of the Brazilian Public Prosecutor's Office 2021-2022. 2022.
BRAZIL, National Council of Justice. Justice Research – Law on Administrative Impropriety: Obstacles to the full effectiveness of the fight against acts of impropriety.
BRAZIL, National Council of the Public Prosecutor's Office, Public Prosecutor's Office: A Portrait – 2021. 2021.
BRAZIL. Provisional Measure 703, of December 18, 2015.
BRAZIL. Federal Public Prosecutor's Office. 5th Coordination and Review Chamber. Normative Guidance No. 10, of November 08, 2020.
BRAZIL. Law 8.429, of June 02, 1992.
BRAZIL. Law 12.529, of November 30, 2011.
BRAZIL. Law 12.846, of August 1, 2013.
BRAZIL. Law 12.850, of August 2, 2013.
BRAZIL. Law 13.105, of March 16, 2015.
BRAZIL. Law 13.964, of December 24, 2019.
BRAZIL. Law 14.230, of October 24, 2021.
BRAZIL. Supreme Federal Court. Direct Action of Unconstitutionality no. 7.042/DF. Rapporteur: Justice [Name of Justice]. Alexandre de Moraes. Electronic Judicial Gazette, February 17, 2022.
BRAZIL. Supreme Federal Court. Direct Action of Unconstitutionality no. 7.043/DF. Rapporteur: Justice [Name of Justice]. Alexandre de Moraes. Electronic Judicial Gazette, February 21, 2022.
DIDIER JR., Fredie, Course of Civil Procedural Law: Introduction to Civil Procedural Law, General Part and Cognizance Process. 19th ed. Salvador. Ed. Jus Podium, 2017.
GARCIA, Emerson; Brazilian sanctioning law and the judicial approval of non-prosecution agreements: some key points. Journal of the Public Prosecutor's Office of the State of Rio de Janeiro No. 80/June 2021
JUSTEN FILHO, Marçal. Reform of the Law on Administrative Impropriety: Commented and Compared: Law 14.230, of October 25, 2021. 1st ed. Rio de Janeiro: Forense, 2021.
LANE, Renata. Agreements in Administrative Impropriety – conduct adjustment agreement, non-prosecution agreement, and leniency agreement. Rio de Janeiro. Ed. Lumen Juris Direito. 2021. Kindle Edition.