Brazil top court: New Public Misconduct Law valid in open cases only

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Brazil’s Supreme Court ruled Thursday (Aug 18) that the changes made last year in the Law on Misconduct in Public Office (Lei de Improbidade Administrativa), cannot reach back to res judicatae—i.e. cases in which appeals are no longer possible. 

However, most justices also declared that the new piece of legislation is retroactive to benefit those facing a lawsuit for negligent misconduct, a category eliminated by the new law. 

The result of the judgment, which began on August 3, will have an impact on the candidacies of ineligible politicians with ongoing lawsuits against them. After the ruling, they may be free to run in the October elections.

New rules

The Supreme Court ruled on the validity of the changes approved by Congress in Law 14.230 of 2021, sanctioned by President Jair Bolsonaro last October. The text no longer stipulates penalties for unintentional acts. A public official may only be convicted if there is proof of intent.

Advocates of retroactivity argued that the 2021 law stipulates that misconduct in public office is open to retroactivity, as under the Constitution new criminal rules must retroact to benefit convicted individuals.

The case that prompted the judgment concerns a lawsuit filed by Brazil’s social security institute INSS in a bid to collect compensation from a lawyer accused of inflicting losses adding up to BRL 391 thousand due to her negligent behavior as a legal representative of the institute.