Indispensabilidade da defesa técnica no processo administrativo disciplinar: reflexões sobre a súmula vinculante nº 5-STF

Abstract

In compliance with the complexity of fundamental procedural constitutional procedural principles of due process, legal defense of the contradictory and legal security imperatives in a democratic state and the whole system that makes up the administrative disciplinary process is essential for the technical defense by a lawyer or advocate dative in all stages However, the Binding Precedent No. 05/2008 of the Supreme Court exempts this type of defense, contrary to the Federal Constitution, art. 5, LV and art. 133. Precedent No. 343/2007 of the Supreme Court points out that the absence of the technical defense features relative nullity at any stage of the administrative disciplinary process. The aim of this study is to analyze, according to a bibliographic reference, the importance of the dispute between Precedents No. 343/2007 of the Supreme Court and the Binding Precedent No. 05/2008 of the Supreme Federal Court (STF), while manifests itself by OAB maintenance of the defense by the attorney in administrative process. The Statute of the Bar Association, Law no. 8906/94 ensures, through his art. 3 which the defense technique the accused shall be prepared by a qualified professional, as a guarantee of certainty that their rights are protected. Law No. 8112/90, Legal System One to Union Server, art. 156, refers to the servers the right to follow the proceedings in person or through counsel. Considering that the content Binding Precedent No. 05 confronts the procedural constitutional principles by their nature of coercivity of imperative and can mean repression or compulsoriedade, further study is necessary. As justification for the choice of topic is presented indignation, because it is matter objectively determined in STJ and points up the main examine the importance of controversies between overviews.To develop this work we chose to research the qualitative-descriptive, structured in the form of literature review and finally, in the face of aggression suffered by procedural constitutional principles, repeat the content of Petition No 4385/2008 directed by the Supreme Court Bar Association, requiring the review of Binding Precedent No. 05/2008. At the same time, it requires the urgent return to regulation 343/2007 Precedent from the Supreme Court and its due legalization in order to be recognized indisputable legal certainty to the administered citizen.