2.3-Manifestação jurídica; julgamento; nulidades e prescrição-Virgínia Araújo

Hello, my name is Virginia Araujo, I am a federal prosecutor.

Until this moment of our course, we have already studied several aspects of sexual harassment, such as its concept, its effects on victims and institutions, the means for its prevention and possible legal developments. In this module, we are dealing with disciplinary administrative action and the consequent application of sanctions on the public servant causing infringement.

After what was previously explained about the relevant issues of the disciplinary administrative process, we will start to address the final acts to be carried out in this procedure and, later, we will deal with the prescription and the nullities.

We will start this part of the study by talking about the legal consultation manifestation. After the previous stage, with the elaboration of the final report, the cases of the case should be referred to the Consulting Office of the Counseling Agency, which will issue a legal manifestation about the regularity of the procedure. For the elaboration of this legal manifestation, the joint portals number 1 of March 1, 2016,

that guides what the administrative body should say. Among other things, the demonstration will address the plausibility of the Commission's conclusions regarding the adequacy of the legal framework of conduct,

the conduct investigated, the observance of the broad defense contradiction and the formal regularity of the procedure, with verification of the adequacy of the procedural acts to the current legal order. Considering that the type of conduct that we are dealing with in this set of classes involves the practice of sexual harassment, it is very important that the legal advisory body check if the disciplinary commission correctly framed the agent's conduct in those legal devices already mentioned in the class about the framing of the conduct,

which are: Article 117/9 and Article 132/5, all combined with Article 137 of Law 8.112/1990. In addition, the parricidee must observe if the penalty imposed in the case of sexual harassment was, in fact, the dismissal, in the face of the obligation of its imposition when there is transgression to Article 117/9 and Article 132/5.

The legal consultancy will have to assess if the practice is also characterized, as seen in the previous module, as a criminal offense. Once it is verified that the practice also constitutes a crime in the specific case, the expediting of the competent crime news to the criminal authorities, be it the Federal Police or the Public Prosecutor's Office,

which should be properly recommended in the legal demonstration. With the legal demonstration issued by the advisory body, the cases should be sent to the judging authority, so that the third and final phase of the trial, which is the trial, is carried out.

Moving forward in the analysis of the disciplinary administrative process, we would now move on to the trial to be filed by the Judiciary Authority. Law 8.112, states that the decision of the Judiciary Authority must follow the conclusions issued in the final report by the processing commission.

unless these conclusions are contrary to the evidence produced in the lawsuits. According to this rule, provided in Article 168, when the Commission report contradicts the evidence of the lawsuits, the Judiciary Authority can adopt any of the following paths:

aggravate the proposed penalty, grant the proposed penalty or exempt the responsibility of the user. To make any of these decisions, that is, to remove the conclusions from the processing commission, the court should motivate its act.

So, we call special attention to this legal disposition, which allows the court to remove the conclusions issued in the final report. This possibility should be especially observed in cases of conduct involving sexual harassment, when the legal framework of the conduct is not carried out, that is, when the legal framework is different from that constant in Article 116/9 or Article 132/5,

or when the penalty is different from the dismissal. Considering this possibility,

that the Judicial Authority opens, it is understood that the indictment defends itself from the facts and not from the legal framework. Thus, the Judicial Authority can modify the typification of the accused's behavior without this implicating nullity or defamation. On the other hand, the Judicial Authority must always be clear that the punitive act can only be filed in the case in which there is conviction regarding the administrative responsibility of the servant,

In case of doubt, the application of the indisputable principle to the court must prevail. In doubt, decide in favor of the court. We also recorded the possibility of the court not accepting the conclusions of the processing commission for understanding that there is a need for refining the works due to, for example, the instruction being deficient or the evidence collected being fragile, or even

of indispensable duties not to have been carried out. In cases such as these mentioned, the refinement of the works with the constitution of a new processing commission, which may be composed by the same members or not, must be determined. An important observation about this moment of the disciplinary process is that if the accused asks for exoneration or retirement

After the commission's work is finished and before the trial is judged by the judging authority, the request must be superimposed until the trial is judged, in the terms of Article 172 of Law 8.112. With these points, we conclude the studies on the most sensitive stages of the disciplinary administrative process and we will deal with two points of important observation in the course of the process.

Let's talk about the prescription in the disciplinary process. The prescription, as in other branches of law, is to delimit the deadline for the exercise of certain conduct.

In the case of disciplinary judgment, it is the time limit for the exercise of punitive pretension by the administration in the face of a servant who has practiced an illegal function. In short, it is the term that the State has for the application of a penalty to the missing servant. The establishment of such a term is given to guarantee the principle of legal security, since the servant who supposedly had practiced an irregular act

can't be waiting indefinitely for the administration to file a case and to make him responsible for the infraction, if it is proven.

The deadlines are provided in Article 142 of Law 8.112 and for the conducts that involve sexual harassment, it is important to mention the 5-year deadline provided in Inciso 1 for the application of the penalty to punishable offenses such as: dismissal, expulsion from retirement or availability and dismissal from commission. The beginning of the count of the prescription deadline occurs when the competent authority takes knowledge of the fact.

It is not any authority, but one that, within the administrative structure of the body, has the competence to determine disciplinary actions. In some entities, it is the maximum authority of the body; in others, if there is an installed correction, it will be the correction. It is certain that the accounting begins from the science of the fact by this authority, and not from the commitment of the supposed irregular act.

It is worth noting that the administration can, motivatedly, stop deflagrating disciplinary procedures, if it verifies the occurrence of a prescription before its installation, having to ponder the usefulness and importance of deciding on the deflagration of the process in each case. So far, we already know what a prescription is and that the prescription deadline starts from the science of irregularity by the competent authority.

It is important to know that the term may be interrupted. And this interruption occurs from the establishment of a process with an accusatory nature, that is, from the establishment of a punitive syndicate or an administrative disciplinary process. So, once the portaria that determines the establishment of an accusatory disciplinary process is published, the term returns to zero as if it had never even taken place one day.

In addition, the term of the period is also paralyzed for a period, and this time corresponds to the legally established period for the conclusion of the disciplinary administrative process. Considering the curfew and the installation of a pad, the legal provisions state that this term corresponds to the maximum term of the inaugural portaria , added to the term of the extension portaria and to the time

by law for the authority to judge the process . After this deadline, the process may and must continue, but the prescription deadline will restart its flow. We must clarify that there is no suspension of deadlines in the disciplinary law. If the process is suspended for any reason, the course of the prescription will remain.

The only exception that occurs is when the suspension is in judicial order. In these cases, the prescription period will be suspended while the judicial order lasts, resuming its course from where it started and not from the beginning. As already mentioned in this course, the conducts that involve sexual harassment can easily be classified as administrative and criminal offences.

In these cases, the prescriptive deadlines that should be observed are not those listed in Article 142 of Law 8.712, but those provided in Articles 109 and 110 of the Criminal Code and should be calculated according to the maximum penalty provided for the crime. As an example, let's mention the conduct of a servant, occupying a position of chief in the body, who comes to exercise sexual advantage over another servant,

that is under its hierarchy so that it is not removed. The penalty for sexual harassment is detention of one to two years. So, characterizing sexual harassment as a criminal and administratively reprehensible, the term prescribed to be considered by the administration for the application of the applicable penalty will be

Four years. The General Advocacy of the Union advises that the application of the prescription deadline according to the Criminal Code prescinds from the existence of a police inquiry or criminal action, that is, if the administration has found that the conduct is also a crime, the application of the criminal code's prescription deadline can be considered. Two observations should be made on this particular point.

First, the application of the penal code's prescriptive deadline may end up reducing the deadline for administrative action, depending on the crime, as in the example mentioned. Secondly, the administration must always be in charge of the fulfillment of the initial deadline stipulated by the law for the conclusion of the phases of the process.

Of course, we know that the most diverse interstices may arise in the course of the disciplinary process, but the focus should be on the fulfillment of legal deadlines and not to have the entire course of the prescription deadline.

Continuing with the current module, we will make a brief analysis of the nullities in the disciplinary process. To do this, we can start by questioning ourselves about what can lead to the nullity of the disciplinary process and its inability to produce effects. From the beginning, we must be aware that no act

It will be declared null without the proven effective damage to the accused or without concrete influence in the unfavorable decision. Likewise, the act will not be declared null if there is no obstruction in the operation of the real truth of the facts, which is the objective of the disciplinary process. It is imperceptible the demonstration of concrete damage to the right of the interested or to the objectives of the processual relationship.

In this line, Article 563 of the Criminal Procedure Code and Article 282, paragraph 1 of the Civil Procedure Code brought provisions that underline the demonstration of the prejudice to legitimize the decree of annulment.

Thus, they are disposed of respectively. Article 563 No act will be declared null if the nullity does not result in a loss to the accusation or to the defense. Article 282 When pronouncing the nullity, the judge will declare which acts will be reached and will order the necessary provisions in order to be repeated or rectified. The act will not be repeated or its fault will be fulfilled when it does not harm the party.

Thus, we can answer the initial question and say that the addicted act subject to invalidation is the one that has the power to effectively influence the decision of the litigation, because it offers facts and rights for the content of the judgment.

Considering this, if the acts of addiction do not determine the outcome of the process, there is no purpose to invalidate them, because even with their absence, the outcome remains the same. On the other hand, once the addiction to the act is characterized, it is relevant to appreciate the extension of this addiction, because depending on the objective of the act and the moment of practice, the repercussion of the addicted act can be harmful to the survival of the process.

In addition, based on the principle of the use of procedural acts, the invalidation only reaches the acts that are directly contaminated by the defect,

and those that depend on it, the competent authority must specify the scope of the invalidation of the act, as well as the partial or total complementing of the process. In the case of the partial invalidation of the act, for example, the preservation of the pieces validly produced must be guaranteed, that is, those that were not contaminated by the illegality eventually declared must be maintained,

determining the refinement of the acts that caused the violation of legal provisions.

Even if the acts contain unsanable vices, that is, vices that caused partial harm, the decree of processual invalidation can be avoided. For example, detected the unsanable vice, if there are reasons that authorize the declaration of innocence or if the prescription has occurred, there is no reason for the invalidation of the procedural acts.

the preservation of the broad defense or the contradictory will be curved in favor of the decision of favorable merit. In addition to this principal logic base mentioned for the fundamental analysis of the eventual invalidation of the disciplinary process, it should be added to the application of the principle of good processual faith, in order to consider that the part that causes the situation of disadvantage cannot argue for its own benefit at another time.

Considering everything we said and knowing that the administration has the duty to invalidate the acts of addiction, ensuring the particular legal security in the administrative instance and preventing them from being immediately rescued from the judiciary, it is advisable to conclude that, in the disciplinary administrative process, it should be sought to reduce to the maximum the disorder that the declaration of invalids inevitably causes.

These are, therefore, the signs that should guide the assessment of the acts supposedly evaded from addiction and its effects in the specific case. We have reached the end of this module, we hope that the content has been useful and we leave the contact email in the slide if you have any questions. See you next time!