A retroatividade das normas mais benéficas para o réu na nova lei de improbidade administrativa e seus efeitos nos processos em curso

Abstract

The objective of this dissertation is to identify the applicability of Federal Law n° 14.230/21, which amended Federal Law n° 8.429/92, to administrative improbity actions already in progress under certain aspects. Such applicability will be approached from the perspective of paragraph 4 of its article 1, which provides that: “The constitutional principles of sanctioning administrative law apply to the system of improbity disciplined in this Law”. It should be noted that the legal provision refers to the Constitution of the Republic, the most important Constitutional provision being that of the beneficial retroactivity of criminal norms, precisely item XL which enshrines the non-retroactivity of the Criminal Law except to benefit the defendant. The relevance of these considerations is that the jurisprudence of the higher courts has already brought Sanctioning Administrative Law closer to Criminal Law and, therefore, the novel legislation on administrative improbity must be analyzed from the point of view that they institute an improvement for the defendant, a conclusion already even declined in e. STF as will be demonstrated. Notwithstanding other aspects, here the effects of the new typology of acts of administrative improbity and the new statute of limitations and their effects on ongoing processes will be analyzed. This will reflect, as said, in the numerous actions of administrative improbity already proposed in Brazil; ongoing or already finalized.The problem specifically is the retroactivity or non-retroactivity of the new law and its institutes created, intercurrent or modified prescription, typology and general prescription, and its consequence in the ongoing processes, including the stage in which the deed is; whether in the knowledge or in the execution of the sentence. Obviously, if the non-retroactivity is recognized, the deed must have its normal course. But if the retroactivity of the reform is recognized, what should happen to the processes? The study will demonstrate that the conclusion is the retroactivity of the norm and, in this event, what must occur is the view to the active pole of the action so, if within the statute of limitations, it can add, adapt the request in the contours of the new regime of administrative improbity. Added one chapter by the decision of STF about theme 1.199.