Impossibilidade da cassação da aposentadoria como corolário lógico da sentença condenatória de perda da função pública na seara da improbidade administrativa

Abstract

This monography examines the impossibility of converting the penalty of loss of civil service in retirement cassation, in the context of legal action filed for the determination of the commission of criminal act and sanctions, based on Law 8.429/1992. For this, there will be a brief reflection on the duties of probity and morality as the guiding bias of public administration, as well as will be revisited the elements constituting the unsound acts and the sanctions applicable to the agent of misconduct. The imposition of the Judiciary to the taxation of the sanctions provided for in Article 12 of the Act of Administrative Misconduct will delimit the exercise of jurisdiction in imposing sanctions other than those provided for in the said article. In this context, the Superior Court of Justice has precedents that point to the incommunicability between the civil and administrative spheres, resulting in the independence of the convictions and sanctions imposed in each area. It is also noted that there has been a breach of the principle of strict legality in the field of sanctioning law, and that the extensive or analogical interpretation of the State’s jus puniendi is incompatible in the light of the provisions of the Federal Constitution, as well as disobeying the Principles of Specialty and Separation of Powers. The issue remained consolidated by the First Section of the Superior Court of Justice, which, in the trial of ERESP nº 1.496.347/ES (2014/0205247-0), defined that the magistrate has no jurisdiction to apply the penalty of retirement cassation to server judicially senteced for administrative misconduct, since only the administrative authority has powers to decide on impeachment.