STF judges the retroactivity of the new rules of the Administrative Misconduct Law

At the end of 2021, a law [14,230/21] was enacted that amended several provisions of the Administrative Misconduct Law (LIA), Law 8,429/92.

One of the main changes introduced, in addition to the statute of limitations, is the requirement to prove intent of an agent during the misconduct, extinguishing the culpable punishment modality. In this sense, the new wording of Art. 1 incorporates into its first paragraph, “Acts of administrative misconduct are considered to be those intentionally practiced, which are set forth in arts. 9, 10, and 11 of this Law, alongside those exceptionally provided for in special laws” and in its second paragraph, “Intent is considered as the free and conscious will to achieve the illicit result set forth in arts. 9, 10, and 11 of this Law, where an agent’s voluntariness is insufficient.”

This change, among others, brought about relevant controversy, regarding the retroactive application of the alteration, since they could be beneficial to the agents under investigation.

Accordingly, the STF recognized the general repercussion in the Interlocutory Appeal in an Extraordinary Appeal (ARE) 843,989, which discusses the issue of retroactive application of the extinction of the culpable modality (i.e. the need for intent), among other topics. Originally, the process deals with an administrative misconduct suit proposed by the INSS before changes in the LIA, wherein the appellate raises the point that the acts attributed to the individuals resulted from negligence without demonstration of intent.

The trial will take place on August 3rd, and it will serve as a parameter to establish whether the changes in the LIA should retroact to benefit those who have committed acts of administrative misconduct with intent. In recognition of the general repercussion, the Reporting-Minister Alexandre de Moraes noted that the debate is extremely important for the political, social, and legal scenario, and it is not restricted to the parties involved.