Ato doloso de improbidade administrativa: qual é a via processual determinada pela ordem jurídico-constitucional para persecução do ressarcimento ao erário?

Abstract

At the end of 2019, the Brazilian Federal Supreme Court (STF) decided, under the “general repercussion” system, that: “The lawsuits about public treasury compensation derived from intentional administrative misconduct do not have a statute of limitations, are imprescriptible.” Since then, there have been several discussions about the appropriate procedure to pursue treasury compensation when the statute of limitations has expired for other types of punishment. Recently, this issue arose in a new case in the Brazilian Superior Court of Justice (STJ), under the “repetitive appeals” system (Theme 1089). In this context, the present research aims to answer the following questions: a) Does the legal and constitutional order define a specific procedure to pursue the treasury compensation derived from intentional administrative misconduct? What is the procedure? b) Is it possible to pursue treasury compensation by the administrative misconduct lawsuit when, at the same time, the statute of limitations for other types of punishment has expired? c) How should we proceed with the administrative misconduct lawsuit if, during the proceedings, the judge rules that the statute of limitations of other types of punishment has expired? In order to answer those questions, we have carried out theoretical, multidisciplinary, and legal-dogmatic research, which can be classified as descriptive, comprehensive, and propositive in its legal nature. Primary and secondary data have been analyzed. Based on our research, we have concluded that the Brazilian legal and constitutional system has defined a specific procedure to pursue treasury compensation derived from intentional administrative misconduct, even if the statute of limitations for other types of punishments has expired. The administrative misconduct lawsuit is the only appropriate procedure defined for this purpose. Thus, it is not only possible but necessary that the administrative misconduct lawsuit seek treasury compensation, even after the statute of limitations for other punishments has expired. Furthermore, we consider that if the administrative misconduct lawsuit is ongoing when the judge rules that the statute of limitation for other kinds of punishments has expired, the lawsuit should proceed, and the case should not be dismissed.