Nothingness can not be alleged in Administrative improbity.

Posted by jrodholfo

November 13, 2008

The principle of nothingness can not be applied to remove the pipes judicially recognized as ímprobas. The unanimous view of the Second Class of the Superior Court of Justice (STJ) reinstates the conviction of a public servant who used cars and municipal officials for private purposes.

The fact occurred in township gaucho. The Public Ministry of Rio Grande do Sul (MPRS) came to public civil action against the head of the office of the council, he used official car and the work of three members of the Municipal Guard to carry tools and private property.

The Court of Justice (ECJ) gaucho, changing decision of first instance, applied the principle of insignificance to the case, since the damage was assessed at U.S. $ 8.47, amount of fuel consumed in the journey. The "prosaic importance", in its view, the opportunity to drive the whole judicial apparatus culminating in disproportionate punishment, could result if, at most, to a fine of that size, "so also irrelevant." Thus, abolished the action, giving cause to the use of the MPRS STJ.

The rapporteur, Minister Benjamin Herman, said that the ECJ made a naive assessment of the facts charged by public servant. The court quantified the damage considering only the fuel, without observing the value of the working day of the municipal guards, the price of freight and other expenses actually proven.

But this is not the main issue in his view. The solution is not in accordance with the Law of systematic dishonesty and with the legal right that the law seeks to protect. To the minister, the acts of dishonesty is not confused with the administrative irregularities. Although species are of the same gender, the act antijurídico only acquires the nature of improbity be hurt the constitutional principles of Public Administration.

The principle of morality is umbilically connected to the concept of good governance, the ethical element, the honesty, the public interest and the concept of common good. Thus, concluded the minister, one can not conceive that a conduct offense "only slightly" to morality.

If the legal and protected by the law of dishonesty is, par excellence, the administrative morality, we can not talk on the principle of insignificance to immoral conduct, the minister believes. He says "there is no way to apply the principles administrative with calculator in hand, expressing them in the form of dollars and cents," he says.

The fact that public officials have no availability on the property and interests that have been entrusted also prevents the application of the principle, says the rapporteur. In the Brazilian legal system, apply the principle of the unavailability of public interest, to which the Judiciary is also bound. "The state-court can not conclude by the insignificance of a conduct that affects the moral and administrative probity, failing to hurt the constitutional text."

The decision reinstates the conviction of public official to pay a fine of $ 1,500.00.

SOURCE: STJ