Administrative dishonesty law, Law nº 8.429/1992

Publicado em 26 Março 2013.

 

Provides for penalties applicable to public agents in cases of illicit enrichment in the exercise of office, position, employment or function in the direct or indirect public administration or foundational and other measures.

 

CHAPTER I

General Provisions

Article 1. The acts of administrative dishonesty committed by any public agent, servant or not, against the direct, indirect or foundational of any of the Powers of the Union, the States, the Federal District, the Municipalities, or the Territory, the merged company to public property or entity for whose creation or costing the Public Treasury crowded or there competing with more than fifty percent of the assets or annual revenue, will be punished in accordance with this law.

Sole paragraph. Also are subject to the penalties of this law the acts of dishonesty charged against asset of entity that receives the subsidy, benefit or incentive, fiscal or credit, by public agency as well as to those whose creation and costing the Public Treasury contributed or has contributed with less than fifty percent of the assets or annual revenue, limited in these cases, the asset sanction to the repercussion of the of illicit over the contribution public treasury.

Article 2. Shall be considered public agents for the purposes of this law, whoever exercises, transiently or without remuneration, by election, appointment, assignment, hiring or any other form of investiture or bond, mandate, post, employment or function in the entities mentioned in the previous article.

Article 3. The provisions of this law shall apply, insofar as pertinent, to those who, although not a public agent, induces or contributes to the performance of the act of dishonesty or to benefit him in any way directly or indirectly.

 

Article 4. The public agent of any level or hierarchy are required to ensure the strict observance of the principles of lawfulness, impersonality, morality, publicity in dealing of matters that affects it.

 

Article 5. In the event of injury to public property by act or omission, malice or fault, by the public agent or third party, shall be given the full reimbursement of the damage.

Article 6. In the event of illicit enrichment, will lose the public agent or third beneficiary the goods or values added to their assets.

Article 7. When the act of dishonesty causing damage to public property or give rise to the illicit enrichment, shall the administrative authority will be responsible for the inquiry represent to the Public Prosecution, to the unavailability of indicted's assets.

Sole paragraph. The unavailability referred to the head paragraph of this article shall fall upon the property that ensure full reimbursement of the damage, or the equity increase resulting from illicit enrichment.

Article 8. The successor of him who cause damage to public property or unlawfully enrich themselves will be subject to the injunctions of this law to the limit of the value of the inheritance.

CHAPTER II

Acts of administrative dishonesty

SECTION I

Acts of administrative dishonesty that matter illicit enrichment.

 

Article 9. Constitutes an act of administrative dishonesty resulting illicit enrichment derive any undue pecuniary advantage by virtue of holding a post, mandate, function, activity or employment in the entities mentioned in the article 1 of this law, and in particular:

I – receive, to themselves or others, money, movable or immovable property, or any other economic benefit, directly or indirectly, as a commission, percentage, donation or present who has an interest, direct or indirect, that may be achieved or backed by action or omission arising out of duties by the public agent;

II - receive economic benefit, directly or indirectly, to facilitate the purchase, exchange or lease of movable or immovable property, or the hiring of services by the entities referred to in article 1 by price higher than the market value;

III - receive economic benefit, directly or indirectly, to facilitate the sale, exchange or lease of public property or the provision of services by the government entity at a price below the market value;

IV - use, in work or particular service, vehicles, machinery, equipment or material of any nature, owned or available to any of the entities mentioned in article 1 of this law, as well as the work of public agents, employees or  third contracted by those entities;

V - receive economic advantage of any nature, direct or indirect, to tolerate the exploitation or the practice of gambling, of pimping, drug trafficking, smuggling, usury or any other unlawful activity, or accepts a promise of such an advantage;

VI - receive economic advantage of any nature, directly or indirectly, to make false declaration about measurement or evaluation in public works or any other service or on quantity, weight, measurement, quality or characteristic of the goods or goods supplied to any of the entities mentioned at article 1 of this law;

VII – acquiring, for themselves or others, in the exercise of office, position, employment or public function, property of any kind whose value is disproportionate to the evolution of the income or assets of the public agent;

VIII - to accept employment, commission or consulting activity or exercise advice for individual or entity that has an interest capable of being achieved or sustained by action or omission arising out of duties of the public agent during the activity;

IX - receive economic advantage to broker the release or application of public funds of any kind;

X - receive economic advantage of any kind, directly or indirectly, to omit any official act, providence or statement that is required;

XI - embed, in any way, to his assets, income, funds or asset values members of the collection of the entities mentioned in article 1 of this law;

XII - use to their advantage, assets, income, funds or asset values members of the collection of the entities mentioned in article 1 of this law.

SECTION II

Acts of administrative dishonesty that causing damage to the treasury


Article 10. Constitutes an act of administrative dishonesty causing damage to the treasury public any act or omission, willful or culpable, giving rise patrimonial loss, misuse, misappropriation, or giving discount, dilapidation of the property or assets of the entities referred to in article 1 of this law, and in particular:

I - facilitate or compete in any way for the amalgamation to the property particular, of individual or entity, assets, income, funds or asset values members of the collection of the entities mentioned in article 1 of this law;

II - allow or contribute to individual or entity not public to use private property, income, funds or asset values members of the collection of the entities mentioned in article 1 of this law, without observing legal formalities or regulations applicable to the species;

III – donate to the individual or entity, as well as to the depersonalized entity, although with educational purposes or assists, assets, income, funds or securities of any of the assets of the entities mentioned in article 1 of this law, without legal formalities and regulations applicable to the species;

IV - enabling or facilitating the sale, exchange or lease of well integral heritage of any of the entities referred to in article 1 of this law, or the provision of service on their part, at a price lower than the market;

V - enabling or facilitating the purchase, exchange or lease of goods or services at a price higher than the market;

VI - conduct financial transaction without observing the legal rules and regulations or to accept insufficient collateral or inidônea;

VII - grant administrative or fiscal benefit without observing legal formalities or regulations applicable to the species;

VIII - frustrate the legality of the bidding process or dismiss it improperly;

IX - order or allow unauthorized charges by law or regulation;

X - act negligently in the collection of income or tribute, as well as with regard to the preservation of public property;

XI - releasing public funds without strict compliance with the relevant standards or affect in any way for their implementation uneven;


XII - enable, facilitate or compete for that third unlawfully enrich themselves;

XIII - allow the use, in particular work or service, of vehicles, machinery, equipment or material of any nature, owned or available to any of the entities mentioned in article 1 of this law, as well as the work of public agents, employees or contractors of such entities;

XIV - enter into a contract or other instrument that has as its object the provision of public services through the associated management without observing the formalities prescribed by law;

XV - enter into contract apportionment of public consortium without sufficient prior budgetary allocation, or without observing the formalities prescribed by law.

SECTION III

Acts of administrative dishonesty that violate the principles of public administration

Article 11. Constitutes an act of administrative dishonesty that infringe the principles of public administration any action or omission that violates the duties of honesty, impartiality, legality, and loyalty to institutions, and notably:

I - practice act aiming purpose prohibited by law or regulation or different from that provided in the rule of jurisdiction;

II - delay or abstain from doing, wrongfully, any official act;

III - reveal fact or circumstance that has knowledge because of his assignments and that must remain in secret;

IV - deny publicity to the official acts;

V - frustrate the lawfulness of public entrance examination;

VI - no longer accountable when there is forced to do so;

VII - disclose or allow the knowledge of third party prior to its official release, content of political or economic measure when it can affect the price of commodity, good or service.

CHAPTER III

Penalties

 

Article 12. Regardless of criminal sanctions, civil and administrative provisions in specific legislation, is responsible for the act of dishonesty subject to the following penalties, which can be applied individually or cumulatively, according to the gravity of fact:

I - in the event of article 9, loss of goods or assets illicit added to the property, full reimbursement of the damage, if any, loss of public function, suspension of political rights for eight to ten years, payment of civil penalty of up to three times the value of the equity increase and prohibition from contracting with the government or receive benefits or tax incentives or credit, directly or indirectly, even through the legal entity of which he is the majority shareholder for a period of ten years;

II - in the case of article 10, full reimbursement of damages, loss of goods or assets illicit added to the property, if the case may be, loss of civil service, suspension of political rights for five to eight years, payment of civil penalty of up to twice value of the damage and prohibition from contracting with the government or receive benefits or tax incentives or credit, directly or indirectly, even through the legal entity of which he is the majority shareholder for a period of five years;

III - in the case of article 11, full reimbursement of the damage, if any, loss of civil service, suspension of political rights for three to five years, payment of civil penalty of up to one hundred times the amount of remuneration received by the agent and prohibition from contracting with the government or receive benefits or tax incentives or credit, directly or indirectly, even through the legal entity of which he is the majority shareholder for a period of three years.

Sole paragraph. In assessing penalties provided for in this law the judge will take into account the extent of damage, as well as patrimonial advantage obtained by the agent.

CHAPTER IV

Declaration of assets


Article 13. The possession and the exercise of the public agent are conditioned to submit a declaration of assets and values that make up his private equity, to be filed in the personnel service competent.

Paragraph 1. The declaration includes real property, movable, livestock, cash, bonds, stocks, and any other kind of asset and equity values, located in the country or abroad, and, if any, cover goods and asset values of spouse or partner, children and other people who live under the economic dependence of the declarant, excluding only the objects and household utensils.

Paragraph 2. The declaration of assets will be annually updated and the date on which the public agent to leave the exercise of his office, position, employment or function.

Paragraph 3. Shall be punished with the penalty of dismissal, the good of the public service, without prejudice to other sanctions, the public official who refuses to give statement of assets within the specified period, or providing it false.

Paragraph 4. The declarant, at its discretion, may deliver a copy of the annual declaration of assets submitted to the Federal Revenue Service in accordance the law of Income Tax and earnings of any nature, with the necessary upgrades to meet the requirement set forth in the caption and paragraph 2 of this article.

CHAPTER V

The administrative procedure and the judicial process


Article 14. Anyone could represent to the competent administrative authority to be established investigation to ascertain the performance of an act of dishonesty.

Paragraph 1. The representation, which is writing or reduced to writing and signed, will contain the qualifications of the representative, the information about the fact and its authorship and the indication of evidence brought to its attention.

Paragraph 2. The administrative authority rejects the representation, by reasoned order, if it does not contain the procedures established in § 1 of this article. The rejection does not preclude the representation to the Public Prosecutor, pursuant to article 22 of this law.

Paragraph 3. If are observed all the requirements of representation, the authority will determine the immediate investigation of the facts that, if it comes to federal employees, will be computed in the manner provided in arts. 148-182 of Law nº 8.112 of December 11, 1.990 and, in the case of military server, according to their disciplinary regulations.

Paragraph 4. The declarant, at its discretion, may deliver a copy of the annual declaration of assets submitted to the Federal Revenue Service in accordance the law of Income Tax and earnings of any nature, with the necessary upgrades to meet the requirement set forth in the caption and paragraph 2 of this article.

 

Article 15. The committee of the representation processing shall inform the Prosecutor and the Federal Audit Court of the existence of administrative procedure to determine the practice of act of dishonesty.

Sole paragraph. The Public Prosecutor or the Federal Audit Court may, upon petition, designate a representative to accompany the administrative procedure.

 

Article 16. Having founded indicia of responsibility, the committee shall represent to the Public Prosecutor or to the attorney of the office for require to the competent judgment to decree the sequestration of the property of the agent or third party who has illicit  enriched or caused damage to public property.

Paragraph 1. The application for sequestration will be processed in accordance with the provisions of arts. 822 and 825 of the Civil Procedure Code.

Paragraph 2. If any, the request will include research, examination and blocking of assets, bank accounts and investments held by indicted abroad, according to the law and international treaties.


Article 17. The main action, which will have the ordinary procedure, will be proposed by the Public Prosecutor or by the interested legal entity, within thirty days of the execution of the injunction.

Paragraph 1. Is prohibited the transaction, the agreement or the compromise in the actions of the caput.

Paragraph 2. The Public Treasury, as the case may be, shall promote the necessary actions to complement the reimbursement to the public assets.

Paragraph 3. If the main action have been proposed by prosecutors, apply, if any, the provisions of § 3 of art. 6 of Law nº 4.717 of 29 June 1.965.

Paragraph 4. The Public Prosecution, if does not intervene in the action as a party, shall act as guardian of the law, under penalty of nullity.

Paragraph 5. The proposal of the action will prevent the jurisdiction for all actions subsequently proposals with the same cause of action or the same object.

Paragraph 6. The action is accompanied with documents containing the justification or sufficient evidence of the existence of the act of dishonesty or with reasonable grounds of inability to present any such evidence, subject to applicable law, including the provisions given in the arts. 16 to 18 of the Civil Procedure Code.


Paragraph 7. Being the initial application in due form, the judge will order to  autua it and will order the notification of the requested, to provide written statement, which may be accompanied with documents and evidence, within fifteen days.

Paragraph 8. Received the manifestation, the judge, within thirty days, in a reasoned decision, reject the action, if convinced of the absence of the act of dishonesty, the dismissal of the action or the inadequacy of the route chosen.

Paragraph 9. Received the initial application, the defendant will be summoned to present its defense.

Paragraph 10. From the decision that receives the initial application can be proposal an interlocutory appeal.

Paragraph 11. At any stage of the action, recognized the inadequacy of the action of dishonesty, the judge shall terminate the case without merit analisys.

Paragraph 12. Applies to inquiries or statements made ​​in proceedings governed by this law the provisions of art. 221, § 1 and caput of the Criminal Procedure Code.

Article 18. The sentence that upheld the civil action to repair damage or the confiscation of illicit assets will determine payment or reversal of assets, as applicable, on behalf of the legal entity harmed by the offense.


CHAPTER VI

Penal Provisions


Article 19.
Crime constitutes a representation by act of misconduct against public agent or third party beneficiary, when the complainant knows the innocent.

Penalty: Imprisonment of six to ten months and a fine.

Sole paragraph. Besides the penalty, the complainant is subject to indemnify denounced by damage, moral or image there are provoked.

Article 20. The loss of public function and suspension of political rights only become effective with the final judgment of conviction.

Sole paragraph. The judicial or administrative authority may order the removal of the public agent of the office, employment or function, without prejudice to compensation if the measure becomes necessary to procedural instruction.


Article 21. The application of the sanctions governed in this law are independent:

I – of the actual occurrence of damage to public property, except as to the worth of compensation;

II - of the approval or rejection of the accounts by the board of internal control or the Court or Board of Auditors.

Article 22. To ascertain any Unlawful under this law, the Attorney General, ex officio, the application of administrative authority or by representation formulated in accordance with the provisions of art. 14, may request the establishment of a police investigation or administrative proceeding.

CHAPTER VII

Prescription


Article 23. The actions designed to take effect the penalties provided in this law can be proposed:

I - until five years after the end of the year mandate, of commissioned office or position of trust;

II - within the limitations period provided by law for specific disciplinary offenses punishable by dismissal from the public service as well, in cases of exercising effective position or employment.

CHAPTER VIII

Final provisions


Article 24. This law shall enter into force on the date of its publication.


Article 25. Shall be repealed the laws nº's 3.164, from June 1, 1957, and Law nº 3.502, of December 21, 1.958 and other provisions to the contrary.


Rio de Janeiro, June 2, 1992; 171 ° and 104 ° of Independence of the Republic.

 

Conselho Editorial

Dr. Carlos Alberto Molinaro
(PUCRS)
Dra. Elaine Harzheim Macedo
(PUCRS)
Dr. Humberto Dalla Bernardina Pinho (UERJ/UNESA)
Dr. Sérgio Cruz Arenhart
(UFPR)
Dr. Daniel Mitidiero
(UFRGS)
Dr. Fredie Didier Júnior
(UFBA)
Dr. Lúcio Delfino
(UNIUBE)

 Dr. Antonio Gidi

(Syracuse University College of Law - EUA)

Dr. Darci Guimarães Ribeiro
(Unisinos)
Dr. Gilberto Sturmer
(PUCRS)
Dr. Marco Felix Jobim
(PUCRS)